26, Dec 2020 | CJP Team
While the law, in any democratic republic is meant to protect individual and collective rights the year of the ongoing Covid-19 Pandemic was misused in India to pass a slew of laws, even through the emergency power of the Ordinance, by both the Union (Central) and state legislatures that showed an utter disregard for human rights and the Constitution.
The year 2020 has been unprecedented due to the COVID-19 pandemic and while the government should have been busy managing the health crisis, it declared a sudden countrywide lockdown. The governance machinery was kept running as an essential service, the Judiciary and Courts came to a near standstill with restricted functioning. What did work 24X7, overtime, were actions of executive overreach by the government, Union (Central) and many State. What did they do? They misused this period of legislative non-functionality by invoking the power of Ordinance making to bring into force unwarranted and questionable laws that undermined individual and collective rights. Then Parliament was even called to literally ram through some of these making a mockery of the basic feature of the Constitution, due process et al.
Here’s a look at the worst laws, including ordinances passed by Unions and state legislatures in 2020:
The Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Act, 2020
The law intends to “promote efficient, transparent and barrier-free inter-State and intra-State trade and commerce of farmers’ produce outside the physical premises of markets.” This law lets farmers sell their produce in any market and not just the Agricultural Produce Market Committee (APMC) mandis that were earlier established by the State Governments to protect farmers against exploitation by retailers or big corporate giants. Critics say that the law opens the floodgates for corporate entities and big traders to directly buy from the farmers from all parts of the country at lower or any rate without the intervention of the government in the mandis, regulation by licenses and a minimum support price.
Traders too will not prefer to buy goods through the mandi by paying licenses and paying taxes if they can directly buy products outside the mandi. Even if Minimum Support Price is fixed, it will not be followed unless the government intervenes to check on exploitation of farmers. Per critics, this law is not intended for the farmers to gain by acquiring a larger market but it’s making it easier for large corporates to buy from all parts of India at the cheapest price possible. Further, the law also bars jurisdiction of civil courts in case of disputes and if there is an issue that needs redressal, the farmer has to approach the Sub-Divisional Magistrate
This is one of the laws the farmers are protesting against in and around the national capital, Delhi. Farmers are demanding that this and the other 2 laws (The Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Act, 2020 and The Essential Commodities (Amendment) Act, 2020) be repealed with immediate effect. As per critics, to pass these laws the Union held a rushed and short monsoon session and when demands are being made to hold winter session to repeal these laws, the Union is citing COVID-19 as an excuse to not hold a session. Worse, the Central Government has impinged on state powers under the Constitution.
The Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Act, 2020
This legislation allows companies to enter into contract farming agreements with the farmers which means that the price and quality of the produce will be fixed prior to farming through a contract and they will get a guaranteed fixed price for the produce. But there are several questions being raised such as, how does the government expect farmers who are an unlettered community to understand the complexities of Indian contract law against parties that economically stand at a better position than them? With fragile living conditions, how will they pay legal expenses if a situation arises?
Further, the law does not explicitly guarantee that companies must mandatorily pay MSP to farmers even when engaged in contract farming. P Sainath, Founder of People’s Archive of Rural India – PARI explained, “If a big trader stockpiles a particular crop from the market, it allows them to manipulate the price and move the farmers price down by not buying from them, pushing them to a point of desperation or move the price that the trader gets in the market, upward by stockpiling it for a significant amount of time. So big traders have a greater power over the farmers to depress the prices.” Further, the law has a clause that the Central Government or the State Government are not liable to be prosecuted, to the prejudice of the aggrieved farmers who will be pitched against rich corporate bodies and also bars jurisdiction of civil courts, similar to the Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Act.
The Essential Commodities (Amendment) Act, 2020
The Act amends the Essential Commodities Act 1955 which deals with the control of the production, supply and distribution of certain commodities. Under the amendment, cereals, pulses, oilseeds, edible oils, onion and potatoes are to be removed from list of essential commodities which means there will no control over hoarding and black marketing of these goods. Government interference will be called for only under “extra ordinary circumstances” and also if there is (i) 100 per cent in the retail price of horticultural produce, or (ii) 50 per cent increase in the retail price of non-perishable agricultural foodstuffs. This means that if onion is priced at Rs. 60, government will not interfere until the price crosses Rs. 120 and corporates, to avoid such interference will competitively price it lesser than the threshold but high enough to make enough profits while common man’s pockets go empty.
The government argues that the stock limit conditions were hindering investment in agriculture infrastructure and this amendment will benefit farmers as well as investors. The people buying these essential commodities will however, be subject to pricing set by corporates for their profitability and people may not be able to afford these essential food items thus affecting nourishment of the larger public, especially lower income groups.
4. Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance 2020
Here is a law brought in “to provide for prohibition of unlawful conversion from one religion to another by misrepresentation, force, undue influence, coercion, allurement or by any other fraudulent means or by marriage. The underlying tone of the ordinance delegitimises free choice, abuses privacy and potentially targets minority populations. The law, given as okay by the state Governor within four days of the Ordinance power being invoked, also questions every conversion unless it gets the State’s blessing. Section 3 of the ordinance deems all conversions by marriage unlawful. Violation of this provision attracts a maximum of 5 years imprisonment and a fine of minimum rupees fifteen thousand. Section 4 enables any person related to the converted person by blood or marriage to lodge an FIR against the conversion. Section 6 empowers Courts to declare any marriage done for the sole purpose of unlawful conversion or vice versa void. All these provisions give power to the State to police personal relationships and throttle a citizen’s freedom of choice.
In ShafinJahan v Asokan KM (2018) 16 SCC 368, the Supreme Court had said, “Interference by the State in such matters has a seriously chilling effect on the exercise of freedoms.”
Prevention of Cow Slaughter and Cattle Preservation (Amendment) Bill, 2020 (Karnataka)
The law prohibits slaughter of cows, buffalos, and bulls under 13 years of age. The bill prescribes punishments for transport of cattle, sale of meat, purchase or disposal of cattle for slaughter which includes a prison term of three to five years and a fine of rupees fifty thousand to rupees five lakh.
The law seeks to protect anyone “acting in good faith” to prevent cow slaughter, from legal action. After the law was passed by the Assembly, the state’s Deputy Chief Minister CN Ashwath Narayan said that cow vigilantes would have “a scope to work in this provision” raising fears that the new law could be used to legitimise violence by self-proclaimed ‘gaurakshaks‘ against members of minority communities involved in trading cattle. The Deputy CM also claimed that in the state, the cow vigilantes have been losing their lives being attacked by cattle traders. However, news reports suggest otherwise and the state has had a long history of over 15 years whereby vigilante groups have attacked cattle traders.
Addressing media persons on the Bill, Leader of the Opposition Mr. Siddaramaiah said that Karnataka imports nearly 40% of fodder from other States, and it was extremely difficult for farmers to feed unproductive cows and bulls during drought. Nearly six crore cows stop giving milk in the country every year and farmers incur expenditure of rupees hundred a day per animal on feeding cattle. It is only practical to sell cows and buffaloes once they stop giving milk. He added that the Bill hurts the interests of farmers and accused the BJP Government of trying to polarise communities by targeting only beef and its consumers.
Uttar Pradesh Recovery of Damage To Public And Private Property Ordinance
The Ordinance, also known as the UP ‘Name and Shame Ordinance’ was promulgated after the Supreme Court refused to grant stay on Allahabad High Court’s order directing that banners with photographs of people asked to pay compensation for damage to public property during anti-CAA protests be taken down. The High Court had called it “unwarranted interference in the privacy of people”. The Supreme Court, while refusing to grant stay on the high court’s order stated that the State had no law to support its actions. Thus, this ordinance was passed to legitimise the actions of the State. There are two PILs pending hearing at the Allahabad High Court challenging the constitutionality of the ordinance. One of the PIL states that the ordinance is redundant since the matter of prevention of damage to public property is already covered by The Prevention of Damages to Public Property Act, 1984. It further states that the ordinance is discriminatory and also violates principles of natural justice as it contains no provision whatsoever for setting aside the ex-parte order upon appearance
As per the ordinance, all the claims under the ordinance will be decided by Claims Tribunals to be set up and the decisions of these Tribunals are to be final and no civil court will have jurisdiction to entertain any questions on the claims. The ordinance, under section 13, also gives the government the right to publish names and personal details of individuals who have been served a notice to and have failed to appear before the Tribunal. It has been challenged in Court.
Uttar Pradesh Temporary Exemption from Certain Labour Laws Ordinance, 2020
The ordinance suspends operation of all labour laws in the state for a period of three years, with the exception of the Bonded Labour System (Abolition) Act, 1976, and certain provisions relating to the security of the workers under the Factories Act, 1948, and Building and Other Construction Workers (Regulation of Employment and Condition of Service) Act, 1996. Approved by the state government, the ordinance is awaiting the approval of Union government since labour is on the concurrent list.
The ordinance has been brought to give impetus to commercial activity, without protecting the health, dignity, lives or safety of the workers. The ostensible rationale is to kick-start economic activity that had come to a standstill during the lockdown and to encourage investment. As per the ordinance all labour laws related to labour unions, settling work disputes, regulations for working conditions, contracts, etc will remain suspended for three years. This translates to severe degeneration of labour rights and labour laws in the state while only benefitting industries by letting them exploit the workers as regulation will be absent and there will be no control over working hours, breaks in between shifts, weekly offs, labour dispute resolution, collective bargaining by labour unions and so on.
“It’s not only regression, it’s a deep slide into a bottomless pit and a race to the bottom of labour standards,” labour economist K.R. ShyamSundar, a professor at the Xavier School of Management, told the Thomson Reuters Foundation.
Dilution of labour laws via notifications
Uttar Pradesh was not the only state that brought in a law to dilute labour laws. Other states across the country issued notifications that effectively impinged upon labour rights. UP had withdrawn a similar notification after it was challenged in Allahabad High Court but brought the ordinance with a much wider scope further endangering labour rights in the state. Other states that brought notifications affecting labour rights, were Gujarat, Rajasthan, Haryana and Himachal Pradesh, Uttarakhand, Uttar Pradesh, Madhya Pradesh, Assam, Punjab, and Goa.
These notifications were passed under the power to exempt in case of public emergency as provided under section 5 of the Factories Act. The Supreme Court quashed the Gujarat notification which granted exemptions to factories on provisions relating to daily working hours, weekly working hours, intervals for rest and spread overs and overtime wages, while observing that the government cannot do away with statutory provisions that uphold the dignity and rights of workers, citing pandemic as a reason and neither is it a “public emergency” under section 5 of the Factories Act. The notifications issued by other states are on similar lines and a petition filed against them is pending hearing before the apex court.
Gujarat Goonda and Anti-Social Activities Prevention Act
The Act has been passed by the state Assembly but awaits the assent of the President of India. The law has been designed on the lines of a similar law in operation in Uttar Pradesh, known as the Uttar Pradesh Control of Goondas Act. As per Ahmedabad Mirror, definition of Goonda elements will include individuals or groups who threaten violence or who damage public order and punishment ranges from minimum 7 years and maximum 10 years imprisonment and fine up to Rs. 50,000. The report also stated that there are several provisions in it that contradict the existing laws such as IPC and CrPC.
The state government’s press release stated that “For strict legal action against Gunda elements indulging in illegal acts like bootlegging, gambling, cow slaughter, dealings in narcotic substances, human trafficking, sexual harassment of children, spurious drugs manufacturing, land grabbing, usury, kidnapping, selling illegal weapons, etc., the new Act has been proposed”. The law also proposes setting up of special courts as under other draconian central laws like Unlawful Activities (Prevention) Act. The wide spectrum of criminal activities included under the law gives wider scope for misuse and abuse of the law at the hands of law enforcement agencies as has already transpired in implementation of UAPA, since its recent amendment. The number of cases registered under the draconian law has increased considerably and the same is expected to happen under the Goonda Act in Gujarat as police are given unbridled powers to deal with ‘anti-social’ elements.
Himachal Pradesh Freedom of Religion Act, 2019
Although, this law was passed by the state Assembly in 2019, it was notified in December 2020 thus, officially making the law operative in the state. The law is most similarly worded as the Uttarakhand Freedom of Religion Act, 2018 which has now been challenged before the Supreme Court by CJP on various grounds including violation of right to privacy, right to conscience, right to religion, right to liberty and autonomy as well as right against discrimination and violation of principle of secularism.
The law provides that marriages done for sole purpose of conversion to be declared null and void. It also mandates that all religious conversion in the state be declared to the District Magistrate a month in advance. The burden of proof as to whether a religious conversion was noteffected through misrepresentation, force, undue influence, coercion, inducement or by anyfraudulent means or by marriage lies on the person so converted. All these provisions not only violate right to privacy of an individual as religion is a personal matter, but also violates an individual’s right to life with dignity as it allows interference of state in personal matters and also allows the state to take action such individuals simply exercising the right to make a choice.
(Compiled by Sanchita Kadam)