The JSBF Report
Law-Making Processes in India and the Farm Bills
Updated: Apr 9, 2021
By Prof. Shohini Sengupta
In September 2020, the Parliament of India enacted three laws, namely, 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. The laws were preceded by three ordinances promulgated by the Union Government on 5th June, 2020. Subsequently, farmers across India started protesting against the erstwhile ordinances (and now Bills). This post will review some of the law-making processes involved in the promulgation of these Bills.
(I) Promulgation of Ordinances
It is important to remember that the present farm bills were introduced to the country by way of ordinances, which are ordinarily emergency law-making devices, without the consent of the legislature. Article 123 of the Constitution of India grants the President certain law-making powers to promulgate Ordinances when either of the two Houses of Parliament is not in session, which is when it is not possible to enact laws in the Parliament. Ordinances must then be placed in Parliament for approval within six weeks of reassembling.
It is interesting to note that these powers of law making find their historical roots in an archaic British legislation, the Indian Councils Act, 1861 which conferred ‘extraordinary powers’ to the Governor-General of India. Over time, ordinances have never proved to be popular in India. During the Indian freedom movement, ordinances were increasingly used to curb national aspirations and were a convenient method of mass oppression. However, they have continued to be used by various national governments with gusto. Research suggests that since the beginning of the first Lok Sabha in 1952, 637 Ordinances had been promulgated till 2014. Since 2015, 65 more ordinances have been promulgated.
In this context, it is also important to note that under the scheme of the legislative power of the Union embodied in the Constitution of India under Articles 245 and 246, the Parliament, not the executive has the power to make laws. Therefore, an ordinance must demand ‘immediate action’, for it to be promulgated by the Executive, by-passing debate and discussion in the legislature. This principle was upheld in the landmark case of RC Cooper vs. Union of India, when the Supreme Court, while examining the constitutionality of an ordinance seeking to nationalise 14 of India’s largest commercial banks held that the ordinance did not satisfy the ‘immediate action’ test. Similarly, in DC Wadhwa vs. State of Bihar, the Supreme Court once again held that the power to promulgate Ordinances by the executive had to be used in exceptional circumstances and could not be a substitute for the law-making power of the legislature. In the present case of the farm bills, it was not immediately clear why such grave matters of important were pushed through in the form of ordinances, without the executive giving enough notice and consulting with the stakeholders.
(II) Use of Voice Vote in Parliament
It is also crucial to note that even when the farm bills were introduced in Parliament in September, 2020, there was severe opposition, particularly ensuing the bills being taken up for voting after only a few hours of debate, and then the use of ‘voice votes’ in Rajya Sabha. Over considerable chaos and protest by the Opposition, the live telecast was muted, and the fate of the bills were put to a ‘voice vote’ by deputy chairman Harivansh Narayan Singh. Rules 252 to 254 of the Rules of Procedure and Conduct of Business in Rajya Sabha provide for four different methods of deciding majority votes in the House – voice vote, counting, division by automatic vote recorder and division by going into the Lobbies. The voice vote particularly is interesting, because the Chairman decides the outcome of the vote based on a rough measure of which side, ayes (yes) or noes are louder to a proposition/question she puts to the House. By convention, voice votes are only used when there is consensus on the particular matter, not when there is severe opposition on a matter of national importance. It is important to remember here that there is no Constitutional or other Parliamentary rule that sets conditions on the use of a voice vote in India.
Hence, seeking Parliamentary approval for ordinances promulgated in haste, through a quagmire of opposition, chaos and obstructed live telecast of Parliamentary debates, the subsequent use of voice votes to decide the fate of the Bills seems to be of questionable objective. Further, the Opposition’s demand for sending the bill to a select committee was also rejected by the Deputy Chairperson.
(III) The Way Ahead
The use of ordinances and voice votes to attain Parliamentary approval have created legislative obfuscation and mistrust in law-making processes in India. This is evident in the mass protests by farmers happening across the country, and continuing deadlocks in negotiations and the violence of recent times. Meanwhile, the Supreme Court, while hearing a bunch of petitions on the farm bills stayed the implementation of the bills until further notice. The Court also constituted a four -member committee with all members who have previously expressed support in favour of the bills. As such, farmer unions have severely contested the Committee and its formation. It is worthwhile to note that while there is no pre-legislative scrutiny or review that is mandated by law in India, the ’Pre Legislative Consultation Policy’ of the Ministry of Law & Justice does expect the concerned Ministry/Department to hold detailed consultations with all stakeholders. This process is expected to start right from placing the proposal in the public domain, accompanied by a justification for such legislation, essential elements of the proposed legislation, its broad financial implications, and an estimated assessment of the impact of such legislation on environment, fundamental rights, lives and livelihoods of the concerned/affected people. Therefore, law making is supposed to respond to the specific nature of every proposal/issue and analyse the potential impact on those who will be affected by such legislation. From the chronology of events that have taken place to bring life to the farm bills, it appears that truly democratic law making processes are yet to find root in India.
Prof. Shohini Sengupta is the Assistant Professor of Research at JSBF. You can check her profile here.
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