📰 An unconstitutional harvest
The best way forward for aggrieved States is to challenge the constitutionality of the new farm laws
•Since independence, Minimum Support Price (MSP) has served as an insurance to farmers, in the form of income security for their produce. As many as 23 vital farm products are supported by the MSP regime. Yet, it has no legislative backing.
•Recently, three laws were passed, which the Central government described as necessary farm reforms. Two of these are the Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Act (FPTC Act), and the Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Act (FAPAFS Act). Unsurprisingly, none refer to the MSP. The stated object of these laws is to provide farmers an additional marketplace for selling their produce by institutionalising contract farming, whilst reducing the dependency on government-controlled APMC-designated mandis, where farmers are often forced to pay high commissions to intermediaries.
Abuse of federalism
•Agriculture falls within the exclusive legislative competence of State governments, through Entry 14 of the State List. However, the Acts in question have been enacted by Parliament, seemingly deriving the legislative competence to do so under Entry 33 of the Concurrent List, which deals with ‘trade and commerce’ of some products listed in that Entry. This inference is axiomatic as the FPTC Act (defining ‘farmers’ produce’), and the FAPAFS Act (defining ‘farming produce’), borrow the items enumerated in Entry 33. The list of items provided under Entry 33 is an exhaustive one. However, the two definitions take leaps beyond the exhaustive set of items enumerated in the said Entry, by also including what can practically be considered as the entirety of farming output — “...wheat, rice or other coarse grains, pulses, vegetables, fruits, nuts, spices, sugarcane and products of poultry, piggery, goatery, fishery and dairy...” — none of which find mention in Entry 33.
•The definitions of ‘farmer’ and ‘farming produce’ are at the heart of these laws, as they lay out the items in which any trade beyond the mandis can take place. Including the vast majority of agricultural produce in such definitions amounts to an egregious breach of legislative competence by the Union government as it is the States which are empowered to enact laws regulating ‘agriculture’.
•Despite this clear constitutional position, the statement of objects and reasons accompanied with these Acts attempts to give an impression of being intended towards reform in the agricultural sector while drawing upon purported powers under Entry 33, despite the Entry not explicitly including within its ambit the expansive definition of farming produce as referred to in the Acts. In short, this is a case of abuse of federalism.
The way forward
•States like Punjab are considering declaring all of their territory as ‘mandi’ to circumvent the effect of these laws. However, it is doubtful if their respective APMC Acts permit the same; and in any case such knee-jerk reactions would surely involve scrutiny from the courts. Constitutionally speaking, however, there exists a strong case for aggrieved State Governments to invoke Article 131 of the Constitution and file a suit challenging the vires of the two laws.
•Whilst doing so, State governments could also explore the potential of granting MSP a legislative backing, at least within the mandis, since any MSP is a matter of government largesse, and not a legally enforceable right with farmers. This move would incentivise farmers to sell their produce at the mandi at assured rates rather than expose themselves to the whims and caprices of private players. At the same time, demands from opposition parties to impose MSP upon private players could be at loggerheads with the free market economy principle enshrined under Article 301 of the Constitution. It is in view of these complexities that the best way forward for the States is to challenge the very constitutionality of these laws.
In 2047, a teacher’s role, based on five principles, will be to oversee the transformative re-birth of citizens
•After 34 years, India rekindled the conversation on its National Education Policy (NEP) in 2020. A policy is as good as it is actualised in practice and it would be ideal to explore the contours of national education practices leading to 2047 when politically independent India becomes 100 years old. From a teacher’s perspective, the next education practices can be viewed through the following five design principles.
To excel is key
•Autonomy: Currently, the clamour for autonomy in education practices is a mixed bag of pretentious idealism and hard-nosed practicality. The Indian Institutes of Management (IIM) Bill, 2017 granting autonomy to the IIMs has now become an Act. In helming a first generation IIM for two terms, one has seen no dramatic variation in the nature of autonomy of the IIMs. The reason for this is that the IIMs, as indeed the Indian Institutes of Technology, have been performing institutions with robust self-correcting systems. The greatest insurance for autonomy is excellence in students’ outcomes rather than a piece of legislation. As long as institutions continue to excel, they will earn their autonomy through social, community and citizens’ sanctions. Legislation may help. However, institutions and institutional leaders who are trained for blind conformity will find exercise of autonomy rather difficult even if the law is on their side. In practice, autonomy cannot be defined by entitlement nor limited by unlawful encroachment. Mere assumption of autonomy does not ensure exercise of autonomy. By 2047, autonomy has to be imbibed as an institutional culture rather than a personal perquisite of a vice chancellor, principal or a director. There will be autonomy in teaching methods, autonomy of the learner in creating her own curriculum, autonomy of thought and self-governance — Swayttata .
Technology-rich settings
•Learning: In 2047, six billion people in the world would constitute the middle class. With little money but with enormous hunger for learning, they will define the learner base for a networked global university system. Technology will proliferate intelligence from hardware to software to everywhere. Smart schools and smart classes may soon morph to smart chairs and smart desks. Intelligence can be embedded into everything. Smart chairs will have sensors to map the flow of attention in the classrooms. On the other hand, the intangibles of the teaching learning process such as creativity, mentorship and facilitation of learning will give birth to the quest for mastery. Teachers will evolve from ring masters to zen masters, raising awareness rather than delivering content. The four core tasks of the university: creation; dissemination; accreditation and monetisation of knowledge will require a sweet synthesis of algorithm and altruism. Learning will involve mobilisation of knowledge for a specific person; is a specific context to face specific challenges or problems. In the ultimate analysis, learning will be about propagation of crucial questions rather than pre-determined answers. Pressure of performance will have to co-exist with the pleasure and ecstasy of learning — ananda .
Coherence across fields
•Trans-disciplinarity: The new National Education Policy (NEP) roots for multi-disciplinary institutions rather than standalone schools. Multidisciplinarity involves experts from different disciplines working together, each drawing on their unique disciplinary knowledge. In a world that is going to be more complex and volatile, expertise from multiple disciplines will be required to construct an understanding of the real life problems we will face. The challenges that COVID-19 has thrown before us require medical scientists, economists, historians, architects, health workers and political scientists and more experts to bring their disciplinary depth to the table. Frequent flooding of our cities is at once an urban planning issue, an engineering issue, environmental issue, public health issue, and of course a political issue that requires many diverse fields to create an understanding of the nature of the problem and its solution. However, by 2047, trans-disciplinarity rather than multi-disciplinarity will be the norm. Transdisciplinarity is about creating a coherence of intellectual frameworks beyond the disciplinary perspectives. Knowledge in 2047 will move from discipline-based units to the unity of meaning and understanding. The reductionist knowledge of the West that explains the whole as the sum of parts will yield space to the quest for the part less whole that the rishis of the Upanishads described as purnatwa .
School as a connecting hub
•Technology-innovation: Technology-led innovation will take learning from cognition to immersion. The content of knowledge has evolved from text that had to be cognised to include visual, audio and tactile immersive experiences. Traditionally, students of professional courses learnt through field and factory visits. Today, it is possible for a factory experience to be simulated in a classroom. A leading global engineering company, ABB, is using virtual reality to simulate a factory experience inside a school. A classroom will not be a place but a space. In 2047, school will not be a brick and mortar house but a connecting hub that will digitally decode, deliver and disperse knowledge. Disruptive innovation will enable technology to give greater access to hitherto exclusive knowledge and fulfil unmet learner needs. A vice chancellor’s office will look a lot more like a tech-studio. Technology will not be a cosmetic add-on but serve a strategic purpose. Leading schools of the world will harness talent and technology seamlessly.
Nurturing minds with values
•Values, mindset and culture: By 2047, Indian teachers will be engaged in nurturing global mindsets based on three classical values of India: satyam (authenticity), nityam (sustainability) and purnam (wholeness). Mindsets will be based on how learners receive information and not what information they receive; on how to think rather than what to think. Education is finally about creating and sustaining wholesome cultures rather than serving the templates of outmoded civilisations. The post-colonial Indian education system has managed to create mindsets of clerks and coders and imitators to serve a civilisation that bets on material values of exploitation of nature and increasing consumption. While civilisation is about what we acquire, culture is concerned with who we become. The most valuable outcome of education is the becoming of a competent and compassionate human being. In 2047, a teacher’s role will be to midwife this transformative re-birth of citizens of our great nation.
📰 India needs a rainbow recovery plan
Such an approach would require integration of ecological protection and tackling inequality
•The world could emerge from COVID-19 so much the worse by attempting ‘business as usual’, or it could take pathways to a more just, sustainable future. In Europe and the U.S., a ‘green new deal’ (GND) proposed by some from the political mainstream puts the climate and employment crises at the centre of economic recovery. In India, we have a chance to build on our genius and heritage to forge a multihued approach — a rainbow new deal (RND).
•By RND, I refer to a seamless integration of ecological protection and tackling of wealth inequality and economic vulnerability of several hundreds of millions of people. Green meets red, so to speak. But ‘green’ itself is a restricted environmentalism; the oceans and rivers and natural deserts and mountains together are a lot more colours. I also include here recognition of multiple genders and sexualities from whose movements I borrow the symbol of the rainbow.
What would RND entail?
•Our most urgent task is to generate dignified, sustainable livelihoods for the vast majority of the population and workforce that is today living precarious lives. And this has to be built on regenerating and safeguarding the country’s soil, natural ecosystems, water, biological diversity, and air. We should never forget that the more we destroy it, the more we invite crises, from COVID-19 to climate.
•The nearly 200 million small farmers, pastoralists, and fishers can be enabled to sustain or switch to organic, ecologically sustainable production, with their own food security as the highest priority, and with local marketing links. This would include over 10 million people who appear to have gone back to agriculture in the COVID-19 period.
•Next, the RND could encourage lifestyles and livelihoods that obtain substantial food, medicines, household items and other needs, as also sustainable livelihoods, from natural ecosystems. Forest-based livelihoods alone, for instance, can support 100 million people.
•Third, it would entail reviving and sustaining India’s incredible diversity of crafts, and decentralised production of most goods and services, across all villages and towns, with a massive investment in the small and medium sector enterprises. This could gainfully employ 200 million people. All such production could be run democratically as producer companies or cooperatives. For all the above, schemes like the Mahatma Gandhi National Rural Employment Guarantee Scheme could be re-oriented and extended, including for urban livelihoods.
•Then, the RND would entail substantial investments in public health, education, housing, transportation and other basic needs. If these are run in a decentralised way, with appropriate training, they could generate many more millions of jobs. The same could be for other services like digital networks and communications, as also decentralised infrastructure development by worker collectives. All of this would be within ecologically sustainable limits, and specially focused on empowering and benefiting the most marginalised people.
•In such a recovery, big companies need to be kept out. Soap, footwear, furniture, clothes, energy, and myriad other items of everyday use can be produced by community-run units across the country. ‘Made in India’ should be ‘Handmade in India’ by local workers. In a recent webinar, Suresh Chhanga, sarpanch of Kunariya village in Kachchh in Gujarat, proposed that they can save Rs. 40 lakh a month on such items by producing them locally. Elango Rangasamy, former Dalit sarpanch of Kuthambakkam village in Tamil Nadu, proposes a ‘network economy’, in which clusters of villages can be self-reliant for most basic needs, and exchange with neighbouring clusters what they cannot produce or grow. Ela Bhatt, founder of SEWA, has proposed the ‘100 mile radius’ as a region within which the objective of self-reliance can be met. These are all currently relevant versions of Mahatma Gandhi’s focus on self-reliance.
•There are hundreds of initiatives already demonstrating the feasibility of such an approach. Many are run by workers and communities themselves. Government-sponsored programmes like Kudumbashree in Kerala and Jharcraft in Jharkhand show how they can be significantly scaled with state support. During the COVID-19 lockdown, community resilience based on such initiatives was amply demonstrated.
•But let’s be clear: such RND will succeed only if there is a fundamental move away from a privatised, capitalist economy, and an authoritarian state, and head-on tackling of casteism, patriarchy and other structures of inequality. There are many successful initiatives at empowering women, Dalits, Adivasis, landless, the LGBTQ+ community and the disabled to learn from.
•This also means a serious attempt at land reforms, including recognising collective rights over the commons: forests, grasslands, coastal and marine areas, biodiversity, wetlands, water, and knowledge. Legislation similar to the Forest Rights Act, and community mobilisation to implement it, is needed for all other ecosystems.
Wealth redistribution
•Where substantial public investments are needed, serious wealth redistribution is called for. As economist Prabhat Patnaik has pointed out, a mere 2% wealth tax coupled with a 33% inheritance tax on the richest 1% of India could generate more revenue than the total recovery package the Government of India announced in May 2020 .
•It is of course foolish to expect the government to go for such RND. Prime Minister Narendra Modi’s ‘Atmanirbhar Bharat’ programme, with all its doublespeak on ‘self-reliance’, places India’s economy even more into the hands of private capital and big players. Massive, informed public mobilisation is needed to counter this policy regression.
•The recent protests by lakhs of young people against the regressive Environment Impact Assessment Notification 2020 and against the Citizenship (Amendment) Act and National Register of Citizens provide hope. If these diverse strands of resistance, feminist, worker, farmer, and other mobilisations of the marginalised, and myriad grassroots initiatives at alternative living all can be synergised, a RND kind of transformation may yet be on the horizon.
📰 Farm Acts – unwanted constitutional adventurism
There is a case to argue that the three Acts have poor legal validity, may be unconstitutional and weaken federalism
•The passage of the three Farm Acts by Parliament has led to a constitutional debate. These Acts are: the Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Act, 2020; the Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Act, 2020, and the Essential Commodities (Amendment) Act, 2020. Does the Union government have the authority to legislate on what are rightfully the affairs of States? Many States have questioned the constitutional validity of the Farm Acts and are reportedly exploring legal options.
The issue
•Agriculture is a State subject in the Constitution, listed as Entry 14 in the State List (List II). This apart, Entry 26 in List II refers to “trade and commerce within the State”; Entry 27 refers to “production, supply and distribution of goods”; and Entry 28 refers to “markets and fairs”. For these reasons, intra-State marketing in agriculture was always considered a legislative prerogative of States.
•Seen in this perspective, Parliament’s passage of the Farm Bills was an extraordinary step. For this purpose, the central government invoked Entry 33 in the Concurrent List (List III). Entry 26 and 27 in List II are listed as “subject to the provisions of Entry 33 of List III”. Entry 33 in List III is the following: 33. Trade and commerce in, and the production, supply and distribution of, — (a) the products of any industry where the control of such industry by the Union is declared by Parliament by law to be expedient in the public interest, and imported goods of the same kind as such products; (b) foodstuffs, including edible oilseeds and oils; (c) cattle fodder, including oilcakes and other concentrates; (d) raw cotton, whether ginned or unginned, and cotton seed; and (e) raw jute.
Amendment and dissent
•Entry 33, in its present form, was inserted in List III through the Constitution (Third Amendment) Act, 1954. That its import was significant is clear in the heated constitutional debates around the Amendment. After tabling in the house, the Constitution (Third Amendment) Bill was referred to a Joint Committee. In the Joint Committee, there was severe opposition to the Bill from seven members: N.C. Chatterjee, K.S. Raghavachari, A. Krishnaswamy, Parvathi Krishnan, Bimal Commar Ghosh, V. Venkataramana and Harish Chandra Mathur. In the final report, these members also wrote an important note of dissent (https://bit.ly/30BqRZv).
•The contention of the dissent was the following. As per Article 369 in the original version of the Constitution, the responsibility of agricultural trade and commerce within a State was temporarily entrusted to the Union government for a period of five years beginning from 1950. The 1954 Amendment attempted to change this into a permanent feature in the Constitution. But according to the dissenting members, “the Constitution makers did not desire to place matters enumerated in Article 369 in the Concurrent List”. If indeed they were placed in List III, “State autonomy would be rendered illusory and State powers and rights would be progressively pulverised…”, and “…the legislative authority of State legislatures is pro tanto abrogated”. As a result, the Amendment would be “…permanently depriving the State legislatures from effectively exercising their legislative judgement in respect of certain vital matters….”
•Parliament discussed the Bill in September 1954 (https://bit.ly/2GCI0L4). In his opening speech, Minister for Commerce and Industry T.T. Krishnamachari clarified that the Amendment was required because many States were deficit in food production, and the Centre had to “safeguard the interests of the weaker units in the Union”. His point was that it was the adverse food situation in the country that necessitated the Amendment.
•But many eminent Opposition members were not impressed, and pointed to the spirit of the dissent note. In their eloquent elaborations, Asoka Mehta and K.K. Basu argued that States such as Bihar, Bombay, Travancore-Cochin and Assam had explicitly opposed the Bill. Basu said that Article 369 was retained as a temporary feature in the Constitution because “the situation in the country [after 1947] was abnormal” and “the food situation was very bad.…” But the Constitution-makers knew that the situation would return to “normal” in a few years. That was why they did not vest the listed powers with the Centre for more than five years. Hence, its conversion into a permanent provision was unwarranted.
•Asoka Mehta warned that if the Centre truly wanted control on trade and commerce in States, then, over time, it would also want to have “control over crop planning and cultivation”. Thus, the Bill would lead to “an expanding encroachment on the rights of the States”; “a progressive erosion of State powers”; and “the possibility of side stepping of democratic processes”. According to K.K. Basu, “passage of the Bill would transform the Indian Constitution into a “unitary Constitution” instead of a “federal Constitution” and reduce “all the States’ powers into municipal powers”. A “reactionary legislation” was being introduced as “an innocuous piece of legislation”.
•Notwithstanding the strong dissenting voices, the Bill was passed. But history appears to have proven the dissenters right. In September 2020, the same Entry 33 was invoked to usurp the same powers of the States that the dissenters feared would be taken away.
What the judiciary said
•In many of its judgments after 1954, the Supreme Court of India has upheld the legislative powers of States in intra-State agricultural marketing. Most notable was the ruling of the five-judge Constitution Bench in I.T.C. Limited vs. Agricultural Produce Market Committee (APMC) and Others , 2002. The Tobacco Board Act, 1975 had brought the development of the tobacco industry under the Centre. However, Bihar’s APMC Act continued to list tobacco as an agricultural produce. In this case, the question was if the APMC in Monghyr could charge a levy on ITC for the purchase of unprocessed tobacco leaves from growers. An earlier judgment had held that the State APMC Act will be repugnant to the Central Act, and hence was ultra vires .
•But the Constitution Bench upheld the validity of the State APMC Act, and ruled that (a) market fees can be charged from ITC under the State APMC Act; (b) State laws become repugnant only if the State and Centre enact laws on the same subject matter under an Entry in List III; and (c) in those cases outside List III, one has to first examine if the subject matter was an exclusive entry under List I or List II, and only after determining this can one decide on the dominant legislation that would prevail. In the case of the Farm Acts of 2020, the applicable points are (a) and (c). With regard to (a), States could continue to charge mandi taxes from private markets anywhere in the notified area regardless of the Central Act. With regard to (c), the State legislation should prevail as agriculture is an exclusive subject matter — Entry 14 – in List II.
•In summary, first, it was unwise on the part of the Centre to use Entry 33 in List III to push the Farm Bills. Such adventurism weakens the spirit of federal cooperation that India needs in this hour of crisis. Second, agriculture is exclusively a State subject. Everything that is ancillary or subsidiary to an exclusive subject in List II should also fall under the exclusive legislative purview of States. Most importantly, Entry 28 in List II — i.e., “markets and fairs” — is not subject to Entry 33 in List III. In short, there appears to be a strong case to reasonably argue that the Farm Acts have poor legal validity, if not being outrightly unconstitutional.
