The Hindu Business Line : Trampling farmers' right to property

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Trampling farmers' right to property

Sharad Joshi

The judiciary does not take suo motu notice of any situation, howsoever in violation of the Constitution that may be. It can pronounce its position only when a specific case comes before it. On January 11, the Supreme Court, while pronouncing itself in a case relating to 69 per cent reservation by the Tamil Nadu Government, held that enacting a law in the Schedule IX of the Constitution does not necessarily put it beyond judicial scrutiny.

Schedule IX was introduced in the first and the fourth amendments to the Constitution at the height of the anti-zamindari fervour. The legislation to take over land from the big landlords was struck down by courts as being ultra vires the Constitution and in breach of the fundamental right to property. The government tried a subterfuge— of amending the Constitution rather than the legislation. Initially, this contraption of Schedule IX was used mainly to regularise land reform legislation. It soon became an omnibus inventory of legislation the government was unwilling to defend. Farmers' organisations opposing land acquisition for public purposes have demanded for the last 25 years the abrogation of Schedule IX and the restoration of the fundamental right to property.

No recourse to law

The Supreme Court's January decision is a major victory for farmers and a setback for environmentalists demanding resettlement of displaced farmers without wishing to challenge Schedule IX. The Supreme Court has held that only laws placed in Schedule IX after April 24, 1973 will be open to scrutiny.

In the ruling in Keshavanand Bharati vs. State of Kerala on April 24, 1973, the Apex Court held that Parliament had the power to amend any or all the provisions of the Constitution except those that alter its basic structure. That the wording of the preamble to Schedule IX itself went against a major fundamental right and was, hence, ultra vires the Constitution, was not spelt out because the court was not called upon to pronounce itself on the matter.

The Centre has announced its intention to formulate, in the near future, a new resettlement policy. It is unlikely that it will wipe out the principle of eminence juris that justifies takeover of land by the government. The farmers might find some relief in the fact that the Essential Commodities Act, 1955, though enacted much earlier, was put in Schedule IX only in 1976 and is, therefore, subject to judicial review. Whether the farmers can commandeer enough resources to get it referred to the Supreme Court is another matter.

The `food crops' case

It is interesting that there is at least one governmental measure concerning agricultural land (also in Kerala) that has been taken under the provisions of the Essential Commodities Act, 1955. The Kerala Government had issued the Land Utilisation Order, 1967 under Notification No: (p) 225/67/Agri. dated 17-6-1967. By 1967, the Green Revolution had set in and the worst phase of food scarcity was over. It had become quite clear that the best way of ensuring food security was increasing production, productivity and yields with superior technology. Punjab and Haryana had launched the Green Revolution in wheat without forcing the farmers to continue growing wheat or any other food crop.

The provisions and wording of the Kerala Government's order brings to mind the Stalinist campaign against farmers. The order provides: "If the State government are satisfied that it is necessary and expedient to increase the production of food crops in any area... direct that every holder of land in that area shall grow food crops as may be specified in the order. If any farmer was found to be wanting, the collector was to issue him a notice. If the landholder did not respond positively within 10 days, the collector could auction the use of his land for a period of 3 years in order to ensure that the land was used for production of food crops.''

In the Kerala lexicon, `food crops' include paddy, fish, sugarcane, vegetables, tapioca, yam, coffee, cardamom, pepper, groundnut, banana and plantain. The farmers were prohibited from changing from one food crop to another and the collector could order them to grow the food crop(s) he so desired. If the purchaser in the auction failed to grow food crops as directed by the collector, his tenure could be terminated and he could be evicted.

Unfortunately, in most cases, it was the Kerala State Karshaka Thozhilali Union (KSKTU) that intervened. There were a number of cases where small farmers holding less than half an hectare wanted to discontinue paddy cultivation because the government had artificially hiked the wage rates to prohibitive levels and the prices of paddy were unremunerative. When the farmers planted, in small patches, rubber or arecanut saplings, they were uprooted or destroyed. In no case did the district collector initiate action against the unlawful forces nor was any compensation paid to the victims. The Communist governments in Kerala increased the wage rates of the paddy workers without caring to examine if the cultivation could support it. In the last 20 years, the daily wage rates of paddy field workers have been hiked by 11.95 per cent every year. They have risen from Rs 8.83 (female) and Rs 12.74 (male) in 1981-82 to Rs 101.64 (female) and Rs 148.72 (male) in 2003-04. However, during the same period, the paddy prices increased at an overall rate of 7.36 per cent — from Rs 178.78 per quintal in 1981-82 to Rs 694.69 per quintal in 2003-04.

The issue of acreage

Did the government succeed in increasing or, at least, maintaining the acreage on the food crops? In several cases sizeable paddy land was taken over by the government itself for the declared purpose of cultivation. Many such land are lying fallow and being eyed by politicians and the real-estate industry. In 1980-81, Kerala had 8,01,691 hectares under paddy and produced 13,64,867 tonnes of paddy. By 2003-04, the acreage had come down to less that one-third (2,87,340 hectares) and the production to less than a half (5,70,045 tonnes).

Government interventions of this type have always failed in agriculture. It would be acceptable if the government simply scrapped all legislation, at least those included in Schedule IX after 1973 and, if necessary, replaced them with laws consistent with the present times.

(The author, a Member of the Rajya Sabha, is founder of the Shetkari Sanghatana. He can be reached at sharad.mah@nic.in)

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