Amrit Pal Singh (23), a BBA student who assists a US-based doctor at Tikri Border in providing medical support to protesting farmers, says they are ready to ‘weather’ any challenge
It has been nearly six months of the farmers’ protest, but we are in for the long haul. The numbers might be dwindling par jazba poora barkarar hai (the resolve is firm). You will find many of us from Punjab staying put here until a proper solution is found to the farmers’ grievances. The media interest is also dwindling but we know that those mediapersons who are still coming here are the ones who were truly invested in the issue right from the beginning. It warms my heart to see the exchange of views between protestors and mediapersons; after all interviews are about exchange of views.
I have been assisting Dr Swaiman Singh, a US-based doctor who has set up camp at Tikri Border and has been providing seva non-stop to protesters since January. Apart from registering my voice at the protest, I also serve as his assistant and accountant.
After taking due permissions, we have turned a local bus depot into a medical camp where we provide basic medicines, first-aid facilities and have provisions for dental as well as eye check-ups. We also provide masks, sanitisers and have been trying to step up the processes here when it comes to Covid testing.
Apart from this, I do seva wherever it is required, right from providing medical support serving langars, to doing basic everyday chores like cleaning the washrooms etc. Summers are fully upon us and the trolleys that kept us safe during winters are now turning into tandoors literally, we can’t sleep in them any longer. So I contribute in the making of temporary bamboo and iron shelters to keep us safe from the heat.
While we are providing coolers wherever possible, we farmers are used to working in extreme heat and cold conditions. So extreme weather does not bother us too much. However, we need to take care of our elders and others and hence these shelters.
We had anticipated water shortage in the beginning of summers and we did suffer a bit because of shortage of water and milk, but things are back on track now and we have proper water supply. Dr Swaiman has set up big water filters at regular intervals so that the protesting public can access clean drinking water.
The recent Baishakhi celebrations provided us with renewed vigour and that day saw a huge rise in numbers. Many common people, artists and sportspersons came to show their solidarity and gave us a much needed shot in the arm. They might have gone back home as of now but they have told us that they are with us in spirit.
We are ready to ‘weather’ anything in order to find a solution to the problems of farmers but we sincerely hope that the government listens to us. Hamare buzurg itna kuch jhel rahe hain, wo sacchai ke liye sab kuch jhel sakte hain to hum bhi jhel sakte hain. They are our guiding light summer or winter cannot dampen our jazba.
When the offices of the UN Secretary General, the UN High Commissioner for Human Rights, and the UN Special Rapporteur on the Rights to Freedom of Peaceful Assembly and Association supported the Indian peasants’ right of peaceful protest and assembly, they were reminding the Indian government of its general human rights obligations under the UN treaties that India has ratified and voluntarily undertaken to enforce at the national level.
These top UN diplomats were cognisant of India’s response to the largely peaceful and unprecedented peasant protests in the form of disproportionate and impermissible law and order measures. Such measures are tantamount to criminalising the current peasant protests and are prohibited by the United Nations Declaration on the Rights of Peasants and Other People Working in Rural Areas (the UNDROP).
It took more than seventeen years of campaign by the La Via Campesina, a global network campaign of peasants and rural workers organisations, to reach the milestone of the UNDROP’s adoption by the UN General Assembly on December 17, 2018. At this time, the Indian government has committed to follow the UNDROP which it not only voted for but actually proactively co-sponsored and campaigned for at the UN General Assembly.
The UNDROP brought peasant rights within the ambit of human rights and aimed to strengthen intergovernmental coordination and transnational agrarian solidarity. It is the first ever international law instrument that grants human rights to the majority rural population of global society and provides guidance to the governments on guaranteeing these rights. The UNDROP provides a framework for countries and the international community to strengthen the protection of the human rights of peasants and other rural people and to improve their living conditions.
The UNDROP’s fundamental premise is that the peasant and rural workers constitute 80% of the world’s population and are often victims of human rights violations and suffer from poverty. Peasant and rural landless workers, especially women, do not have equal control over land and other natural resources, or access to education and justice. It recognises the dignity of the world’s rural populations, their contributions to global food production, and their ‘special relationship’ to the land, water and nature, as well as their vulnerabilities to evictions, hazardous working conditions and political repression.
The UNDROP is a blueprint for potential national legislation dealing with the rights of peasants and rural workers. Although currently it is technically non-binding in a strict sense, it uses the term “shall” implying legal obligations of the countries and is an honour code that all UN members have agreed to uphold and incorporate in their national policy framework. Until it becomes a treaty with its own independent enforcement mechanism, the UN has deferred the UNDROP’s monitoring and instead asked all countries including India to include the UNDROP implementation measures in their periodic reports to the other UN human rights mechanisms.
Importantly, the UNDROP prohibits criminalisation of peasants and rural workers protests and calls upon all countries including India to ensure that it shall not subject them to arbitrary arrest, detention, torture or other cruel, inhuman and degrading treatments when they exercise their right to freedom of expression and assembly. It also recognises the peasants and rural workers’ right to life, security of persons, freedom of movement, thought, opinion and expression, as well as association.
Despite India’s commitment at the UN not to criminalise any peasant struggle, the government introduced drastic measures in response to current protests such as interrupting access to water and electricity, limiting access to protest sites, barricading and fortifying protest sites, deploying paramilitary forces, disrupting internet services, registering criminal cases, arbitrarily detaining, torturing, and inflicting custodial and sexual violence against the protest leaders, protesters, supporters, and journalists.
From the beginning, the government acquiesced to the ruling party’s political propaganda apparatus that has engaged in a systematic vilification and dehumanisation campaign about the protests. It failed to publicly condemn all off and online attacks, and the use of hateful and misogynistic language against those connected with the protest.
The UNDROP requires India to ensure the primacy of peasants’ rights specified in the UNDROP over all international agreements, including those regulating trade, investments and intellectual property rights. For that purpose, it further mandates India to take legislative, administrative measures with full consultation of its rural populations. The government in drafting three farm laws has not made good faith efforts to facilitate the peasants’ right to actively participate in the legislative process.
The UNDROP states that India is obliged to take measures to favour peasants selling their products in markets and allow their families to attain an adequate standard of living. The measures enshrined in the three farm laws including the government’s unwillingness to give statutory power to the Minimum Support Price (MSP), adversely affecting the peasants fair access to the market and adequate standard of living, thereby breaching its commitment to the UNDROP.
Without any philosophical or ideological shift at government level or its explicit reservation to the implementation of the UNDROP, India’s volte face reveals its apparent intent to not comply with the UNDROP’s key provisions. The Indian governmental leadership understands the gravity of the situation about the agrarian crisis and protests, and understands its obligations to the peasants, yet it is making a strategic decision that dispute resolution and conflict prevention efforts are not worth the political costs.
A very simple understanding of the holistic configuration of the current protest dynamics indicates various imminent warning signs for the protests spiraling into a larger unmanageable crisis, with devastating consequences for peasants, rural workers, police and armed forces, their families, and the whole social fabric. Even now, a staggering number of protesters continue to die.
The government’s continuous failure to resolve the farm bill dispute, may result in one or more different scenarios, such as aggressive law enforcement actions or incidents of random and scattered violence or even a prolonged low-intensity rural armed conflict, with unimaginable human and material loss.
The protest has gradually reached a monumental juncture nationally beyond the strategic encampments at various entry points to New Delhi, with increasing global support. It is slowly starting to receive attention from the UN human rights processes. On February 11, 2021, the La Via Campesina representative spoke at a high-level special event of The UN Committee on World Food Security and said that “thousands of farmers in India are on the streets for over [the past] 75 days demanding a fair support price for their harvest. They are worried because of the entry of big agribusinesses and contract farming models that will push down their incomes further and they will have no chance to bargain.”
Michelle Bachelet, UN High Commissioner for Human Rights, in her oral updates on the global human rights situation in more than 50 countries at the 46th session opening of the UN Human Rights Council, provided much needed and belated impetus to protests when she highlighted that “continued protests by hundreds of thousands of farmers [in India] highlight the importance of ensuring laws and policies are based on meaningful consultations with those concerned. I trust that ongoing dialogue efforts by both sides will lead to an equitable solution to this crisis that respects the rights of all. Charges of sedition against journalists and activists for reporting or commenting on the protests, and attempts to curb freedom of expression on social media, are disturbing departures from essential human rights principles…”
Given the global attention the protest is receiving, it is likely that peasants and rural workers globally may observe the forthcoming International Day of Peasant’s Struggle on April 17, 2021, in support of the Indian protests. This day commemorates the massacre of the peasants and landless workers by armed forces in 1996 in Brazil while protesting for comprehensive agrarian reform.
If the government had been more transparent nationally during the drafting of the three farm bills, upheld its commitments under the UNDROP, and discharged its ethical responsibility and legal obligations to diligently implement them, it could have averted this crisis that continues to bring immense pain, suffering, and trauma to all, and that also has inflamed a toxic socio-political culture of intolerance.
The writer is a former UN human rights monitor in Yugoslavia and Rwanda
The doctrine of the separation of powers requires that the three principal organs of State – that is the executive, the legislature and the judiciary – should be clearly divided in order to safeguard citizens’ liberties and to guard against governmental tyranny.
One of the earliest and clearest statements of the separation of powers was given by the infamous social commentator and political thinker Montesquieu at the beginning of the French Revolution in 1748: ‘When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty… there is no liberty if the powers of the judging is not separated from the legislative and executive… there would be an end to everything, if the same man or the same body… were to exercise those three powers.’
Therefore, according to the strict interpretation of the separation of powers, none of the three branches may exercise or interfere with the power of the other, nor should any person be a member of any two of the branches. For instance, only by creating three separate institutions is it possible to have a robust system of democratic checks and balances between them.
The Constitution of India does not expressly provide for the separation of powers. Unlike the Constitutions of the US and Australia. However, it still recognises and incorporates the doctrine of the separation of powers between the three principal organs of State. Therefore, whilst no formal or codified lines have been drawn between them, it is widely recognised and accepted that the doctrine of the separation of powers ‘runs through’ the Constitution of India.
Furthermore, there is often an overlap in the scope of the functions of the three branches. Primarily, owing to the parliamentary form of colonial Government in India. In other words, the dividing line between the executive and the legislature is naturally rather a fine one. Nevertheless, under India’s Constitution, the executive can legislate using:
The ordinance making powers of the President and the governors; and delegate executive legislation.
The legislature also exercises some form of control over the judiciary in that it can legislate on the Constitution itself, the jurisdiction and powers of the criminal and civil courts and it can also impeach judges when they are found to be acting or to have acted ultra vires (outside of their jurisdiction).
The judiciary has wide powers to review and strike down unconstitutional executive and legislative decisions and actions. However, the legislature can make such rulings ineffective by amending the law while staying within the constitutional limits. This concept is known as ‘legislative overruling’ and is a prime example of the inherent checks and balances under the Constitution which further strengthen the separation of powers in India.
Moreover and despite the fact that the three branches interconnect and have functional overlaps, the Indian judiciary has recognised the doctrine of the separation of powers as a fundamental feature of the Indian Constitution and an essential principle underpinning the rule of law.
During the course of a recent hearing relating to the Three Farm Laws, the Indian Supreme Court reportedly observed that it has the jurisdiction to stay the implementation of parliamentary legislation and did in fact go on to direct an interim order to that effect. In other words, a judicial order that prevents the executive or the legislature from implementing the Three Farm Laws into India’s domestic legislation.
However, this decision was taken despite the Supreme Courts own reasoning or judicial guidance laid down in the landmark case of Divisional Manager Aravali Golf Course v Chander Haas 2007. In which it was stated: ‘Before parting with this case we would like to make some observations about the limits of the powers of the judiciary. We are compelled to make these observations because we are repeatedly coming across cases where Judges are unjustifiably trying to perform executive or legislative functions. In our opinion this is clearly unconstitutional. In the name of judicial activism Judges cannot cross their limits and try to take over functions which belong to another organ of the State.
Therefore, the Supreme Court has specifically stated that judges must exercise judicial restraint and must not encroach on the jurisdictional capabilities or legislative actions of the legislature or the executive. In other words, the Supreme Court has previously declared that there is a broad separation of powers in India’s Constitution and that each primary organ of the State must remain within its limits and not intrude on the domain or jurisdiction of another.
Therefore, it follows that when the Indian Parliament enacted the Three Farm Laws in September 2020 Parliament was and remains the only organ of State who could repeal the laws or suspend their operation by enacting alternative legislative provisions. However and as previously mentioned, the Supreme Court can declare parliamentary legislation ultra vires if it finds it to be unconstitutional, but it has no jurisdiction to temporarily stay its enforcement without recording a judicial finding that it is on prima facie examination (at first glance) unconstitutional . Therefore, as no such finding has been made in the case in hand, this action cannot be said to amount to anything less than either a monumental demonstration of support on behalf of the judiciary for the plight of India’s small farmers, or a wholly unconstitutional and undemocratic judicial act which in turn should be immediately redressed.
Nevertheless, another fault line that could emerge from the Supreme Court’s intervention stems from the appointment of a four member committee headed by a retired Supreme Court judge ‘for the purpose of listening to the grievances of the farmers and the views of the government and to make recommendations’. However, the Supreme Court has previously set up similar committees, delegating some of its powers to committee members to implement or oversee specific laws or an order of the court. For instance, in 2017 the Supreme Court directed the establishment of family welfare committees whose mandate would be to assess complaints of domestic violence before they were investigated by the police. However, this decision attracted widespread criticism and was eventually rolled back. Nevertheless, a committee working to alleviate the pressures and restraints on India’s police force is one thing but a committee recommending whether three pieces of primary legislation must be stayed or repealed is another thing entirely and caution must be paid to the unconstitutionality of it all.
For instance, whilst the Supreme Court’s decision clearly reflects the legitimacy of the ongoing farmer protests – the Supreme Court would not have issued an interim order if it considered the farmers legal case against the Government to be wholly without merit. If appropriate caution is not exercised by the Supreme Court Judges this judicial decision could have far reaching negative implications for India’s future democratic governance and the rule of law. In other words, public confidence in the judiciary and in the Government is inevitably going to be affected as India’s population begins to lose faith in the sanctity of Parliaments legislative authority.
Perhaps the Supreme Courts objective was to break the ongoing deadlock between the farmers and the Government. For instance, do not forget that prior to the week commencing the 01 December 2020 PM Narendra Modi and his majority government had failed or refused to consult or to negotiate with the farmers and the farmer leaders – a decision which in itself amounts to a clear violation of Articles 2, 10, 11 and 15 of the United Nations Declaration on the Rights of Peasants and Other People Working in Rural Areas 73/165 (UNDROP) (of which India is signatory) and various other primary instruments of international law. For more information on this point please see Sikh Human Rights Group working paper entitled Applicable International Treaties, Conventions and Regulations Re: India’s Agricultural Crisis.
Nevertheless, Sikh Human Rights Group respectfully submits that the Supreme Court judges must quickly come to the realisation that the judiciary cannot single headedly resolve the issues surrounding the Three Farm Law and must concurrently declare the Three Farm Laws unconstitutional whilst refraining from trespassing on the inherent jurisdiction of the legislature and the executive.
For instance, according the Articles 253 and 254 of the Constitution, the power to ratify international Treaties and Conventions is vested with the Government (executive) and there is no need to place the Treaty or Convention before Parliament (legislature) even if the Treaty or Convention has monetary obligations. Therefore, international intergovernmental agreements to uphold the provisions of specific international Treaties and Conventions, such as the UNDROP, are actionable or the provisions are actionable in India’s domestic courts without express Parliamentary legislation to that effect.
Therefore, as Article 9(3) of the UNDROP provides that: ‘States shall take appropriate measures to encourage the establishment of organizations of peasants and other people working in rural areas, including unions, cooperatives or other organizations, particularly with a view to eliminating obstacles to their establishment, growth and pursuit of lawful activities, including any legislative or administrative discrimination against such organizations and their members, and provide them with support to strengthen their position when negotiating contractual arrangements in order to ensure that conditions and prices are fair and stable and do not violate their rights to dignity and to a decent life’.
In SHRG opinion this provision clearly provides the Supreme Court with legitimate grounds to declare the Three Farm Laws ‘unconstitutional’ as Article 21 of the Constitution specifically states that ‘no person shall be deprived of his life or personal liberty’.Which in turn has previously been held by the Supreme Court to encompass a constitutional right to earn a livelihood or a decent standard of living. For example, in the case of Olga Tellis v Bombay Municipal Corporation (1986) it was stated by the presiding Supreme Court judges that: ‘The question which we have to consider is whether the [constitutional] right to life includes the right to livelihood. We see only one answer to that question, namely, that it does. The sweep of the right to life conferred by Article 21 [of the Constitution] is wide and far-reaching. It does not mean, merely that life cannot be extinguished or taken away as, for example, by the imposition and execution of the death sentence… That is but one aspect of the right to life an equally important facet of that right is the right to livelihood because, no person can live without the means of living, that is, the means of livelihood’.
By Mr Carlos Arbuthnott
(The writer is a Master of Laws in international human rights and Human Rights Officer with the Sikh Human Rights Group. Views expressed are personal)
Apart from the unconventional way the laws were rushed through Parliament, a hallmark of Modi regime, where every policy appears to be an ‘emergency’, there are serious concerns about the legitimacy of these laws in relation to international norms and treaties. Denial of access to independent justice, lack of independent evaluation of crop prices and failure to consult before enacting policy or law breach international treaties. The Indian government cannot really claim it is an internal matter of sovereignty.
A scrutiny of these laws in Parliament would have revealed that they are violating some substantial undertakings that the Indian State has committed to at the international level and that are part of UN treaties.
Foremost is the Universal Declaration of Human Rights that India had joined as early as 1948 and is the mother of all human rights laws in the world now. Article 7 states that, ‘everyone is equal before the law and is entitled without discrimination to equal protection of the law’
In the International Covenant on Civil and Political Rights, Article 2 guarantees every individual remedy by competent judiciary
(1) Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as ….. property …. or other status.
(2) Each State Party to the present Covenant undertakes:
(b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy.
The current Farm Laws deny access to independent justice and make a difference between farmers who have small farms as property and the rest of Indian citizens. In any contractual dispute, contesting parties can go to a competent independent court. However, farmers will have to take their contractual disputes with big corporations to a Government officer. When do Government officers become ‘independent’ of Government policy particularly in a country where there is a large trust deficit in government officers.
The second obligation that India has signed up to at the UN is the setting up of a process of independent evaluation of farm produce. In 2018, after 17 years of deliberations and debates, the United Nations passed a Declaration on Rights of Peasants (UNDROP). The United Kingdom was one of the countries opposing it. But India voted in favour, signed it and accepted it.
The Declaration states that there is a need to give farmers a fair price in relation to inputs. This is appreciated by all major international institutions. In UNDROP
(3) ‘States shall take appropriate measures to promote the access of peasants and other people working in rural areas to a fair, impartial and appropriate system of evaluation and certification of the quality of their products at the local, national and international levels, and to promote their participation in its formulation.’
A minimum price for crop is an essential basis of small scale farming. The normal rules of business cannot be applied to much of the world’s farming. Small farming is an occupation rather than a business. About 80% of the world’s farming is small farming, whether in Africa, China or USA.
Modern farming has become very mechanised. It is not profitable at small scale. The costs of mechanised inputs, such as fuel, tractors, electricity can be considerably high. The demand for the crop may be low. The crop may also be substandard at times due to climate or other factors. Farming is not like manufacturing industry where one can adjust the quality of the final product depending on inputs and labour.
Large scale farming however can be a sustainable business with known inputs, some crop diversity and economies of scale. If all farming becomes large scale, nearly half a billion people will join the unemployment market in the world. In India this will be around 125 million.
Small farming is also good for the environment. Farmers tend to grow hedges around their farms, a few trees for shelter from the sun and rain and grow a diversity of crops catering to local market and a few lines for the national market.
Hence most governments prefer small farms. Realising that small farming is not sustainable if run on commercial terms, Governments subsidise farming. It is a form of social security. It provides food security, a diversity of produce and keeps one of the oldest occupations thriving.
International institutions such as United Nations, International Labour Organisation and World Bank also recognise this. The ILO states, ‘Fair Trade is a trading partnership based on dialogue, transparency and respect. It contributes to sustainable development by offering better trading conditions, such as securing the rights of, marginalised producers and workers…
The 2018 United Nations Declaration on Rights of Peasants also ensures that there is independent pricing that is not left to the big corporates.
(3) States shall take appropriate measures to promote the access of peasants and other people working in rural areas to a fair, impartial and appropriate system of evaluation and certification of the quality of their products at the local, national and international levels, and to promote their participation in its formulation.
India is a signatory to the above provision. It is breaching its commitment if it fails to provide this.
The UNDROP also promotes the idea of local markets, or Mandis as called in India.
(2) States shall take appropriate measures to favour the access of peasants and other people working in rural areas to the means of transportation, and processing, drying and storage facilities necessary for selling their products on local, national and regional markets at prices that guarantee them a decent income and livelihood.
(3) States shall take appropriate measures to strengthen and support local, national and regional markets in ways that facilitate, and ensure that peasants and other people working in rural areas have, full and equitable access and participation in these markets to sell their products at prices that allow them and their families to attain an adequate standard of living.
Even if the Government agrees to introduce amendments to the laws, it is breaching another fundamental right under UNDROP that India has already signed up to. That is the duty to consult farmers before enacting policy and recognising food sovereignty.
(1) Peasants and other people working in rural areas have the right to active and free participation, directly and/or through their representative organizations, in the preparation and implementation of policies, programmes and projects that may affect their lives, land and livelihoods
(4) Peasants and other people working in rural areas have the right to determine their own food and agriculture systems, recognized by many States and regions as the right to food sovereignty. This includes the right to participate in decision-making processes on food and agriculture policy and the right to healthy and adequate food produced through ecologically sound and sustainable methods that respect their cultures.
While the government may have bypassed the normal procedures of enacting law in India and obstructed any meaningful debate and while it may say that it has enacted the bills legally, the fact is they breach several international treaties and norms. When domestic law breaches international law, it gives scope to other countries to take up the issue. The principle of sovereignty and ‘internal affair’ as the British Foreign secretary used to skirt around the farm laws, does not actually hold.
In giving power to international law and agreements, Article 253 of the Indian constitution states, ‘Parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body.’
Admittedly India’s commitment made at the UN is only enforceable if it introduces it in domestic law. However India should not be making laws that contravene these agreements. It may exercise sovereignty and take the position that the law is legitimate, The fact is the three farm laws breach international commitments and treaties and are against international conventions.
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