India’s Farm Bills: A Blow to the Judiciary and a Boon for Free Trade

February 4, 2021 by Digital Editor

By: Bhaavya Sinha

In November, India experienced the largest protest in history. Farmers largely from the agricultural states of Punjab and Haryana stormed Delhi to protest three laws that will overhaul the current agricultural sale system by removing guaranteed government-based marketplaces in order to directly conduct transactions with buyers.

The laws represent a break from a tradition of government-supported agriculture in India, suggesting governmental response to domestic as well as international pressure by commercial interests and different state actors. At the same time as the November protest, India was countering a US, EU, and Australia-backed proposal to reduce farm subsidies given by countries like India that have higher potential to distort global markets, arguing for per-farmer rather than the traditional aggregate analysis of governmental subsidies. More recently, the WTO Secretariat issued an independent report finding that policies like the minimum floor price for agricultural products and government procurement have led to distortion of cropping patterns and regional disparities in production. With scrutiny increasing on trade practices by developing market economies, the Indian government’s push for these farm laws is likely motivated by an audience of potential investors and trade partners who may be turned off by seemingly distortive trade practices. Though the laws may be designed to facilitate free trade, they have not been viewed as a positive change by the Indian people.

The protests have continued since then, despite repeated incidents of police brutality directed at the protesters and professionals who try to help them, such as doctors. In addition, various farmer groups and NGOs have petitioned the Supreme Court to repeal the new laws. Their complaints range from the ruling Bharatiya Janata Party’s “bulldozing” of the bills through the Parliament to fears that the lack of regulation and support will cause the farmers to be vulnerable to exploitation from large corporations.

However, one concerning element of the bills has been relatively overlooked until recently. Several lawyers and legal associations have pointed out that the bills usurp judiciary functions in favor of increasing administrative power, with the Bar Council of Delhi directly requesting Prime Minister Modi withdraw the legislation. Two of the three bills allot all relevant dispute resolution to executive branch bureaucrats instead of the courts.

First, the Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Act, 2020, intended to make direct transactions between farmers and buyers more “fair and transparent,” exempts all farming agreements under it from the “application of any State Act… for the purpose of regulation of sale and purchase of such farming produce.” In the Act’s dispute settlement chapter, it mandates that every farming agreement provide for a conciliation process and formation of a conciliation board with representatives of the parties to the agreement, provided that the representation of each party is “fair and balanced.” If there is no such conciliation provision or the conciliation board fails, then the dispute may go to the district’s Sub-Divisional Magistrate (SDM) who shall act as the Sub-Divisional Authority (SDA). The SDM may in turn create a conciliation board, hear the dispute themselves, and impose penalties on behalf of either party. The SDM’s ultimate decision may be appealed by either party to the Appellate Authority, which will be presided over by the district’s Collector or an Additional Collector they nominate. The Act explicitly gives the Appellate Authority’s order the same force as a decree of a civil court. It also provides the SDM with the same evidentiary and procedural powers as a civil court. The actual procedure for filing a petition to any of these authorities remains ambiguous, with the Act providing all discretion to the Central Government. Additionally, in the “Miscellaneous” chapter, the Act prohibits any litigation against any level of government authority, including the SDM and the Appellate Authority, for “anything which is in good faith done or intended to be done under the provisions of the Act or any rule made thereafter.” Finally, the Act explicitly bars civil court jurisdiction for any dispute related to farming agreements.

Second, the Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Act, 2020, is somewhat similar. Its dispute resolution chapter permits parties to directly submit to an SDM for referral to a conciliation board appointed by the SDM and led by a chairperson “under the supervision and control” of the SDM. As under the Empowerment and Protection Act, parties may further appeal to the SDM and thereafter the Appellate Authority. Again, the “Miscellaneous” chapter bars litigation against the central government or district authority for “good faith” actions and removes all civil court jurisdiction for any relevant farming dispute.

Like many other former English colonies, India is a common-law jurisdiction. Though separation of powers is merely implicit in the Indian Constitution, the Supreme Court has upheld an express and independent judicial mandate in cases like I.C. Golaknath v. State of Punjab. Further, when previous laws like the Income Tax Act of 1961 and the Companies Act of 2013 have removed jurisdiction from civil courts, they vest that jurisdiction in quasi-judicial bodies or tribunals that include judicial members. In 2010, a five-judge Constitution bench in Union of India v. R. Gandhi struck down the appointment of non-judicial officers to the National Company Law Tribunal and its Appellate Tribunal, writing that “[t]he independence of members discharging judicial functions in a Tribunal cannot be diluted.”

The new farming bills’ reliance upon local level administrative officials for farming disputes instead of courts is concerning, considering India’s notoriously corrupt bureaucracy, the disproportionate power and influence wielded by agricultural buyers versus small farmers, the ambiguity of the petition process, and the lack of judicial expertise and specialization with the SMJs. The farm bills represent a break from the Indian tradition of constitutional separation of powers, echoing the larger critique that the legislation is undermining democracy in favor of rapid privatization.

Bhaavya is a 2L at Georgetown Law. At the Georgetown Journal of International Law, she is an Assistant Digital Editor and Programming & Scholarship Head for the Diversity Committee. An immigrant herself, she is particularly interested in matters of international development and global trade and their implications for human rights across the world. She is also a student attorney representing an asylum-seeker at the Center for Applied Legal Studies this spring, a member of the Alternative Dispute Resolution division of the Georgetown Barristers’ Council, a Georgetown Law Global Law Scholar, and an alumnus of the Berkeley Political Review at UC Berkeley.