 |
| Source-jagranjosh.com |
What
do you mean by constitutionality? Well, constitutionality means any law passed
by the legislation must be in accordance with the constitution and if there is
any inconsistency as a whole or any part of in derogation of the fundamental
rights shall be void to
the extent of such contravention under Article 13.[1] The
Honorable Supreme Court over the years, to examine the constitutionality of any
act, had applied different tests on different laws which involved various
constitutional provisions like the very recent one is striking down a part of
97th Constitutional amendment related to the management of cooperative
societies[2].
The
basic attribute of any test is to check the content of that law and the
procedure by which such law has been passed are in accordance with the
constitutional provision or not?
In reference to the procedure by which any law has been passed (parliament proceedings or process), judiciary has not empowered to review or inquire such proceedings of parliament under article 122 of constitution.
And in reference to content of law, constitutionality lays with two things i.e. i) Consistency with fundamental rights[3] ii) Consistency with Basic Structure i.e. federalism in the current scenario.
- There are no clauses or no provision in these three farm laws which prima facie seem inconsistent with fundamental rights. Though the SC gave order to form a committee to come at a mutual understanding between farmers and executive.
- In respect of the basic structure, "federalism is the part of the basic structure of the constitution of india and any law inconsistent with basic structure is void to that extent."[4] Federalism means decentralization of power between central government and state government and neither parliament nor state legislature can interfere in the powers vested or given to each other. However our Indian constitution is quasi federal in nature and article (246 and 254)[5] of Indian constitution states that “whenever an issue arises on any subject mentioned in concurrent list between parliament and state legislature, the parliament authority will override the other”.
In order to understand whether it violates the
principle of federalism or not, let’s go through with certain provisions-
Entry 14 of
State List - Agriculture” means
state have power to make laws on all the subjects related to agriculture
Entry 26 &
27 of State List – Subject to the provisions mentioned in the
entry 33 of the concurrent list state have power to make any law on the
subject of trade and commerce within the state or Production, distribution and
supply of goods and services
Entry 33 of
Concurrent List – Production,
distribution, supply or trade and commerce of domestic and imported products of
an industry; foodstuffs, including oilseeds and oils, cattle fodder, raw cotton
and jute etc.
Hence, there is no interference by center in state’s
power to legislate.
Act 1 – The Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Act, 2020
Objective and general meaning-
Its main objective is to provide facilitation to the farmers or promote them by providing legal assurance in that respect. This act covers not only the farmers produce i.e. rice, grains, mustard etc but all the product cultivated from land as well as milk product and animal husbandry (i.e. vegetables, fruits, pulses as well as milk product, fishery etc).
Features of the Act-
- Farmers have freedom to conduct trade and commerce in a trade area outside the APMC (Agriculture produce market committee) or established Mandi, to any person which can be a manufacturer, factory, and warehouse as well as to any Mandi outside the only APMC in which jurisdiction of his land lies. (Sec 3)
- It’s empowering the farmers to trade inter-state or intra-state freely as per their own choice. (Sec 4)
- Like other online platform, e-commerce; an electronic trading and transaction platform for farmers may be introduced for the ease of doing business. (Sec 5)
- State government shall not levy any kind of tax, fee or any other kind of same on agricultural activity or transaction. (Sec 6)
- There shall be a dispute resolution mechanism introduced for fast and speedy disposal of the cases efficiently. All disputes would lie before SDM first and in appeal before the collector. No appeal shall be provided further and the decision of the collector court will be final. (Sec 8) SDM or collector may have to dispose the matter within 30 days from the date on which it has been brought before it. It is also noted that no civil court have power to any matter regarding the same however SDM and collector while adjudicating the matter have all the power of civil court.
Act 2- The Farmers (Empowerment and protection) agreement on price assurance and farm services act, 2020
Main objective or provisions-
- Its object is to provide empowerment and protection on farming agreement[6].
- This act empowers the farmers to engage in any contract with anyone for farm produce or services[7] outside APMC. (Sec 3 (1))
- The agreement have the validity of one crop season (minimum) to 5 year (maximum) with mutual consent of both the parties. (Sec 3 (3))
- This act empowers the central government which may make model contracts or may issue any guidelines regarding the same to prevent the abuse of farmers from private players. (Sec 3 (4))
- Farmers and sponsor in an agreement mutually can fix price at a certain rate or can fix a minimum price with flexibility keeping the uncertain future in mind. They can increase the decided price according to market demand at the time of performing the promise with flexibility clause. (Sec 5) However payment for the same after performing the promise on part of farmer by delivering the goods shall be made on the very same date on which the delivery takes place or within 3 days if any procedural error occurred. And sponsor shall be liable to communicate about delivery and payment in written to the farmer on the very same day on which delivery has been made out or received. (Sec 6)
- This act also protects the lands of the farmers as it shall not be attached in any agreement neither as a security nor by any other means in any circumstances. (Sec 8)
- It also empowered that the state government may construct any regulation body to register or govern the farming contract. (Sec 12)
- Farmers’ liability is exempted under force majeure[8]. But penalty shall be imposed if any party fails to perform its promise willingly.
- There shall be a dispute resolution mechanism introduced for fast and speedy disposal of the cases efficiently. All disputes shall be done through the conciliation board and in appeal before SDM and then before the collector. No appeal shall be provided further and the decision of the collector court will be final. (Sec 13) SDM or collector may have to dispose the matter within 30 days from the date on which it has been brought before it. It is noted that no civil court have power to any matter regarding the same however SDM and collector while adjudicating the matter have all the power of civil court. (Sec 14)
Act 3- The Essential Commodities (amendment) Act, 2020
Main objective or provisions-
- Its objective is to prevent big players to store corps which is less in supply and high in demand up to a certain limit.
- Supply of foodstuffs will not cover under this act except extreme ordinary circumstances will have been arrived (i.e. war, natural calamity or extreme price hiking). (Sec 3 (1A))
- No government can impose any restriction on stock limit of essential commodity on anyone less than its food process capacity. However government may impose restriction in case of either 100% increase in the retail price of horticultural produce or 50% increase in the retail price of non-perishable agricultural foodstuffs.
Demerits/ Limitations of the all 3 Acts-
- Having no tax outside APMC transactions will eventually end up APMCs and the benefits and securities given under APMCs transactions. (Act 1 and 2)
- Lack of judicial intervention in dispute resolution mechanism. (Act 1 and 2)
- There are no proper rules and regulation except having PAN card for open market members i.e. business men, industries, warehouses, politicians etc. (Act 1 and 2)
- Due to the lack of proper rules and regulations, it’s possible that big private players abuse the farmers by making cartel. (Act 1 and 2)
- Farmers may not be able to get market rate benefits due to unawareness or rigid provision of contract farming. (Act 2)
- Having less control over private players under ECA may manipulate the price or may create artificial demand. (Act 3)
Conclusion-
Irrespective of the political rivalry and other opinions if anyone analyze these acts by progressive thinking then these farmers law are nearly a revolutionary step towards the growth of agriculture but it doesn’t mean these laws are perfect. Any sudden and complete change of anything will hamper the present system and it is hitting the majority of farmers directly, rather changing as a whole one should always made changes gradually.
At the end I would like to summaries it by proposing some amendments which I have analyze, to the farm laws in a way of suggestions-
- MSP should not be wiped out even though there is not as such any codified provision regarding the same but through notification or by making any codified provision, it should be provided.
- Fill up the gap between open market and APMC by putting them on the same level.
- Introduce proper laws and regulations for open market.
- There must be judicial intervention in dispute resolution mechanism to achieving the end of justice fairly as judiciary is independent in nature from any kind of external or internal influence.
- Government should provide more and more subsidies on those products and services which will help farmers in long term.
[1] https://main.sci.gov.in/judgment/judis/1251.pdf
[2] Union
of India vs. Rajendra N.Shah
[3] Article 13 of COI
[4] Kesavananda Bharati Vs UOI
[6] Sec 2 (g) of The Farmers (Empowerment and protection)
agreement on price assurance and farm services act, 2020
[7] Sec 2(d) of The Farmers (Empowerment and protection)
agreement on price assurance and farm services act, 2020
[8] Sec 2(j) of The Farmers (Empowerment and protection)
agreement on price assurance and farm services act, 2020
I’d like to thank you for writing on this topic. The information you provided was very useful. I will visit again in the near future. Top Rated Criminal Defense Lawyer.
ReplyDelete