The farm laws 2020 were three short statutes that between them ran to fewer than sixty pages, and they produced the largest legislative confrontation of their decade: a year of protest camps on the borders of the national capital, a Supreme Court stay within four months of enactment, and a repeal announced by the Prime Minister who had championed them. Yet the argument about the three Acts was conducted, on both sides, largely about texts that few of the arguers had read. The laws were said to have abolished the regulated market yards called mandis. They did not. They were said to have abolished the minimum support price. They did not mention it. They were said to have handed farmland to corporations. One of them prohibited exactly that. The distance between what the farm laws 2020 said and what they were described as saying is the subject of this article, because that distance, more than any single provision, explains why a set of marketing reforms that expert committees had recommended for two decades ended in repeal without ever operating at scale.

The legislative history matters here in a way it does not for most statutes, because the laws were made twice. They were made once as ordinances on 5 June 2020, when Parliament was not in session and the country was in the first phase of the pandemic lockdown, and they were made again as Acts of Parliament in September 2020, in a passage so hurried and so contested that the procedure became a second controversy laid over the first. A reader who wants to understand the episode has to hold three records apart: the record of the policy, which was old and heavily documented; the record of the texts, which were precise and narrower than the argument about them; and the record of the passage, which was the point at which a policy dispute became a dispute about the legitimacy of the lawmaking itself. This article takes the three records in that order, states the case for the laws and the case against them at full strength, and ends at the one point on which the record is unambiguous: the constitutional question at the heart of the episode was argued before the Supreme Court, was never decided, and remains undecided, because the laws were stayed and then repealed before any court ruled on their validity.

The long pre-history: a marketing system everyone agreed was failing

The three Acts did not arrive at an empty field. Agricultural marketing in India was, and in law remains, a state subject administered through a lattice of state statutes, most of them descended from colonial-era market regulation and consolidated after independence as Agricultural Produce Market Committee Acts. Under a typical state APMC Act, a market committee notified market yards, called mandis, within whose premises the first sale of notified agricultural produce had to take place through licensed intermediaries. The farmer who grew wheat in a district of Punjab or mustard in a district of Rajasthan did not, in the general run of cases, choose a buyer from the whole country. The first transaction happened inside the notified yard, before licensed commission agents, and the state law attached a market fee and other levies to that transaction. The architecture had a defensible origin. It was built to protect a cultivator with a perishable crop and no storage from the moneylender-trader who had once been able to name any price at the farm gate, and the regulated yard, with its open auction, its prescribed weighment and its committee oversight, was the twentieth-century answer to a real exploitation. By the turn of the century, however, the settled expert view was that the answer had hardened into the problem. The yards had become local monopsonies, the licence had become a barrier to entry rather than a badge of honesty, and the farmer’s freedom to sell was confined to a single point of sale in which a small number of buyers faced a large number of sellers who could not wait.

That expert view was not a discovery of 2020. The Union Ministry of Agriculture circulated a Model APMC Act in 2003, inviting states to rewrite their marketing statutes so that private markets, direct purchase from farmers and contract farming became lawful alongside the committee yards. Uptake was partial and uneven, and the model was revised rather than abandoned. A committee of the National Commission on Farmers, chaired by M. S. Swaminathan and reporting between 2004 and 2006, treated marketing reform as part of the unfinished agenda of Indian agriculture. A high-level committee on restructuring the Food Corporation of India, chaired by Shanta Kumar, reported in 2015 in favour of a freer marketing regime. The Committee on Doubling Farmers’ Income, chaired by Ashok Dalwai, whose reports appeared in 2018, recommended a model marketing law and a model contract farming law as central planks of its strategy. The Centre accordingly circulated the Model Agricultural Produce and Livestock Marketing (Promotion and Facilitation) Act in 2017 and the Model Agricultural Produce and Livestock Contract Farming (Promotion and Facilitation) Act in 2018, again as drafts for states to adopt, because agriculture and markets sat in the State List and the drafting pen, on the orthodox view, was not the Centre’s to hold. A reader tracing the farm laws 2020 back through this record reaches the first complication of the episode: the content of the reforms had been proposed, in substantially similar form, by committees of very different governments over nearly two decades, while the constitutional route the Centre eventually chose, legislating from Delhi on a state subject, had been the one step the earlier reformers had consistently declined to take.

The pre-history also contains the road that was signposted and not taken. The Standing Committee on Agriculture, in a report of the 2018 to 2019 session examining agricultural marketing, recorded that states had not implemented several of the reforms the model laws proposed, and recommended that the Central Government constitute a committee of state agriculture ministers to build a consensus and settle the legal framework for marketing reform. In July 2019 a high-level committee of seven chief ministers was constituted to deliberate on, among other things, the adoption of the model laws and the amendment of the Essential Commodities Act. The sequence is worth stating plainly because so much of the later argument turned on it. The official machinery of reform had, by 2019, produced two conclusions: that the substance of marketing liberalisation had broad expert support, and that the politically safe route to it ran through negotiation with the states whose subject it was. The events of 2020 followed the first conclusion and discarded the second, and almost everything that followed is intelligible as the consequence of that choice.

One further fact of the pre-history belongs in the record before the ordinances are reached, because it explains the temperature of the response. The regulated mandi was not only a market institution. In Punjab and Haryana, the two states where the procurement system for wheat and paddy operated most completely, the mandi was also the point at which the state purchased grain at the minimum support price, the point at which commission agents and labourers earned their livelihoods, and a significant source of revenue for the state government through the market fee and the rural development fee levied on transactions inside it. A reform that proposed to move trade outside the yard therefore proposed, whether it said so or not, to move income away from a dense network of interests that had organised itself around the yard over half a century. The texts of the farm laws 2020 nowhere announced that consequence. The politics of the farm laws 2020 was largely the politics of that unannounced consequence being read into, and out of, three short statutes.

The Centre had also tried the integrating route once, inside the state system rather than over it, and the attempt’s limits form part of this pre-history. The electronic National Agriculture Market, launched in April 2016, was a pan-India electronic trading portal designed to network the existing mandis into a single market without displacing them: a trader in one state could bid for a lot assayed and listed in a mandi in another, and by the government’s count more than a thousand mandis had been connected to the platform within four years. The portal’s logic was conservative in the institutional sense. It kept the yard, the licence and the fee, and tried to widen the circle of buyers bidding inside the fence. Its record was correspondingly mixed: volumes through the platform remained a modest share of total mandi trade, inter-state trade on it stayed thin, and the assaying and logistics on which remote bidding depends were uneven across yards. For the reformers who drafted the 2020 package, the portal’s trajectory was evidence that integration inside the fence had reached its ceiling, because the fence itself, the state law that confined the first sale to the yard and taxed it there, was the binding constraint. For the system’s defenders, the same record showed that the constraint was not the law but the infrastructure, and that a state which had not built grading laboratories and warehouses could not expect a statute to conjure buyers. The farm laws 2020 chose the first reading. They did not amend the portal’s world; they declared the world outside the fence to be a market in itself, and the choice between improving the yard’s connectivity and abolishing the yard’s monopoly is the fork in the road at which this history properly begins.

The Bihar experiment: the one state that had already repealed

The pre-history contains one completed experiment, and both sides in 2020 reached for it, because it cut in both directions. In 2006 the state of Bihar repealed its Agricultural Produce Market Committee Act altogether, abolishing the regulated yard system in the state outright rather than bypassing it. The repeal was the boldest version of the reform the model Acts proposed, carried out by the legislature that owned the subject, and its consequences were studied for the following decade and a half. The critics of the farm laws 2020 cited Bihar as the demonstration that removing the regulated market does not summon a private one into existence: studies of the post-repeal years found that private investment in market yards and storage did not arrive at the expected scale, that farmers in much of the state continued to sell to traders at or near the farm gate at prices below the support price, and that the state, having abolished the institution, had no machinery through which to buy grain even when it wished to. Defenders of the 2020 laws answered that Bihar was an experiment in abolition without construction: the state had repealed its marketing law without building the alternative architecture of grading, warehousing receipts, market intelligence and credit that a free market requires to function, and without the procurement presence that made the mandis of Punjab and Haryana worth defending. On this reading Bihar proved not that liberalisation fails but that demolition is not reform.

The honest use of Bihar in this history is narrower than either side’s use of it. The experiment showed that the regulated yard, for all its rents and restrictions, bundled together functions, price discovery, weighing, aggregation, credit against the crop and a state purchase point, which a replacement has to reproduce severally or the farmer is left with the freedom to sell and nobody equipped to buy well. The farm laws 2020 were drafted with at least a partial awareness of that lesson: the electronic platform provisions, the price information system in Section 7 of the trade Act, the same-day payment rule and the model agreement machinery of the farming agreement Act were all attempts to legislate the supporting architecture into existence alongside the freedom. What the drafters did not reproduce was a buyer of last resort. The mandi system’s least liberal and most load-bearing feature was that inside it, for wheat and paddy in the procuring states, the state itself stood ready to purchase at an announced price. No provision of the three Acts created, funded or even mentioned any equivalent, and the omission was not a drafting oversight that a committee stage might have corrected in an afternoon. It reflected the reform’s theory, which was that the state’s role was to license the market’s freedom and police its frauds, not to stand inside the market as a purchaser. The farmers who read the Acts in the summer of 2020 understood the omission faster than most commentators did, because the procurement purchase was the part of the old system that touched their income directly, and the entire subsequent history, the demand for a legal guarantee of the support price above every other demand, is the record of that understanding.

One more strand of the pre-history completes the picture, and it is fiscal. The market fee and the rural development fee levied inside the yards of Punjab and Haryana were not incidental charges; they were a material revenue stream for two state governments and the funding base of the rural road and market infrastructure of the grain belt, collected on every transaction the procurement system processed. A state finance department reading Section 6 of the trade and commerce Act, the bar on any fee in the trade area, did not need to speculate about lost relevance; it could compute a lost revenue line that began the moment trade migrated. The federal objection to the farm laws 2020 was therefore never only the doctrinal objection about Entries 14 and 28. It was also the objection of two state exchequers to a central statute that made their largest agricultural revenue stream optional for the trader to avoid, and of a market committee system whose employees, commission agents and labourers numbered in the tens of thousands in the procuring states and who heard, in the promise of a fee-free trade area, the announcement of their own redundancy. Legislation that redistributes income on that scale ordinarily travels with a transition design, compensation for the displaced, a phased timetable, a negotiated settlement with the governments whose revenues it touches. The farm laws 2020 travelled with none of these, and the absence is part of their legislative history rather than a footnote to it.

Three ordinances in June: the route the government chose

The farm laws 2020 began as ordinances. On 3 June 2020 the Union Cabinet approved a package of agricultural measures, and on 5 June 2020 the President promulgated three ordinances under the ordinance-making power in Article 123 of the Constitution: an ordinance on trade and commerce in farmers’ produce, an ordinance on farming agreements, and an ordinance amending the Essential Commodities Act of 1955. An ordinance is made when Parliament is not in session and circumstances, in the President’s satisfaction, require immediate action; it carries the force of an Act and it lapses unless both Houses approve it within six weeks of reassembly. The general mechanics of that power, its limits and its history of abuse and judicial correction are a subject in their own right, treated in the series article on the ordinance-making power in India. What matters for this history is narrower. The subjects of the three ordinances, agricultural marketing, contract farming and stock limits on foodstuffs, were matters on which state legislatures had legislated for decades, and the government chose to open the question not with a bill circulated for comment, not with the committee of state ministers the Standing Committee on Agriculture had recommended, and not with a reference to any parliamentary committee, but with instruments that took legal effect on the day they were signed.

The government’s defence of the route was stated at the time and deserves to be stated in its own terms. The Agriculture Minister, Narendra Singh Tomar, and the Prime Minister, Narendra Modi, argued that the pandemic had exposed the fragility of a marketing system that forced a farmer to a single crowded yard, that the reforms had been discussed for twenty years and delayed for twenty years, and that an ordinance in June allowed farmers to benefit from the new freedoms in the marketing season that followed. The ordinances were also, in form, temporary: the Constitution required the government to bring replacing bills to the monsoon session, and those bills could be debated, amended and voted on in the ordinary way. Critics, including the opposition parties that would move against the bills in September, answered that immediacy was the one thing a reform twenty years in gestation could not plausibly claim, and that to begin a restructuring of a state subject by ordinance in a lockdown was to announce in advance that the consultation the subject required would not happen. Both descriptions of the same act were available in June 2020. The legislative history that followed is, in large part, the record of which description the process bore out.

Between promulgation and the monsoon session, the ordinances operated and the opposition organised. Farmer unions in Punjab, where the mandi and procurement system mattered most, began protests against the ordinances within weeks of their issue, and the grievance crystallised around two points that the texts, read carefully, both raised and refused to settle: the absence from all three instruments of any statutory guarantee of the minimum support price, and the fear that a fee-free channel outside the mandi would in time empty the mandi itself, taking the procurement system that depended on it down with it. The ordinances did not wait for Parliament to become controversial in the states. The Punjab Legislative Assembly, in a one-day session on 28 August 2020, passed a resolution rejecting the three ordinances and calling on the Central Government to withdraw them, and the state’s government took the position that the ordinances were an encroachment on the state’s constitutional field. Punjab’s ruling party and its opposition, divided on most else, spoke on this subject in unusual unison, because the ordinances touched the two things the state’s politics is built from, the mandi and the procurement purchase. Other state governments objected in letters and in public statements through the same weeks, and the farm unions, whose protests had begun in Punjab’s towns in June and July, widened them across the state’s highways in August. Meanwhile the ordinances were the law, and their practical operation in those months is a small but telling part of the record: trade in the new trade area required rules, registration systems and platform guidelines that had barely been framed, and the kharif marketing season that the ordinances were timed to serve was in the event conducted overwhelmingly through the old machinery of the mandis and the procurement agencies, under a government assurance that purchase at the support price would proceed as before. The revolutionary text spent its first season as a largely theoretical entitlement, which cut both ways in the argument that followed: the government could say no farmer had been harmed by a freedom few had used, and the unions could say a freedom that changed nothing in its first season was being kept in reserve for the season in which it would change everything.

The replacing bills reached the Lok Sabha on 14 September 2020, introduced by the Agriculture Minister to replace the ordinances before their constitutional expiry. Readers assembling the primary record for themselves, the three ordinance texts, the bills as introduced and the Acts as passed, will find the documents short enough to compare line by line, and the comparison is easier with the files opened side by side in an office document viewer for reading the Gazette texts and bill papers. The texts reward the comparison, because the single most striking fact about the September legislation is how little of it changed between June and enactment.

The trade and commerce Act: a market built outside the mandi

The Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Act, 2020, Act 21 of 2020, is the statute on which the whole episode turned, and its mechanism can be stated in one sentence: it created a statutory space called a trade area, defined by what it excluded, inside which the state marketing law did not run and the state could charge nothing. Section 2(m) of the Act defined the trade area as any area or location, place of production, collection and aggregation, including farm gates, factory premises, warehouses, silos and cold storages, from which the trade of farmers’ produce might be undertaken anywhere in India. The definition then carved out the premises, enclosures and structures constituting the physical boundaries of the principal market yards, sub-market yards and market sub-yards run by market committees under state APMC Acts, together with private yards and deemed markets notified under those Acts. Everything that was not a notified yard was, by this device, a trade area. The older law of agricultural marketing, whose full record is traced in the series article on the APMC system and agricultural marketing in India, was left standing inside its own fences, and a parallel legal universe was declared to exist everywhere else.

Within that universe, Section 3 gave every farmer, trader and electronic trading platform the freedom to carry on inter-state and intra-state trade and commerce in farmers’ produce. Section 4 dealt with the category the state laws regulated most closely, the scheduled farmers’ produce specified under a state APMC Act for regulation, and provided that any trader might trade in it in a trade area, subject to one condition: a trader, other than a farmer producer organisation or an agricultural co-operative society, could trade only if the trader held a permanent account number allotted under the Income-tax Act, 1961, or such other document as the Central Government notified. The licensing edifice of the state statutes, under which the right to buy in a market area was a permission granted by a committee, was replaced inside the trade area by a tax identity number available by entitlement. Section 4 also fixed the term that mattered most to a seller waiting on payment: a trader transacting with a farmer had to pay on the same day, or within a maximum of three working days where procedure required it, against a receipt of delivery given to the farmer on the day of the transaction. Section 5 authorised any person holding a permanent account number, and any farmer producer organisation or co-operative society, to establish and operate an electronic trading and transaction platform for trade in a trade area, required the operator to frame guidelines for fair trade practices, and reserved to the Central Government the power to prescribe registration, codes of conduct and technical parameters by rule.

The inter-state dimension of the design should not be missed, because it carried the package’s most ambitious claim. State marketing law had fragmented the national territory into notified market areas, each with its own committee, licence and fee, and produce crossing state lines encountered the accumulated friction of every jurisdiction it passed. The trade Act addressed the fragmentation by definition and by freedom: the trade area existed, in the statute’s words, in the territory of India as a whole, and the freedom Section 3 conferred ran to inter-state trade in terms, with the Union’s Entry 42 competence standing behind it. A buyer in a consuming state could contract for produce at a farm gate in a producing state without taking a licence from any committee along the way, and the electronic platform provisions imagined the matching of that buyer and that farmer as a routine digital act. The claim built on these provisions, heard constantly in the government’s advocacy, was the creation of one national market for agricultural produce out of a patchwork of state markets. The claim’s weakness was the mirror of the Bihar lesson: a market is not only a permission but a logistics, of roads, assaying, cold storage and enforceable payment across distance, and the Act legislated the permission in full while legislating the logistics hardly at all, beyond the price information system and the platform guidelines that operators were left to write for themselves.

The provision that converted a liberalisation into a fiscal threat was Section 6. It provided that no market fee or cess or levy, by whatever name called, under any state APMC Act or any other state law, shall be levied on any farmer or trader or electronic trading platform for trade and commerce in scheduled farmers’ produce in a trade area. Section 14 then gave the Act overriding effect over anything inconsistent in a state APMC Act or any other law in force. Read the two provisions together and the design is unmistakable. The Act did not repeal a single state marketing statute, did not close a single mandi, and did not forbid any farmer from selling in a yard. What it did was to make the yard the only place in the marketing system where the state took a cut of the transaction, and to guarantee that every transaction that migrated outside the yard migrated free of that charge. A mandi that charged a fee was left to compete with a farm gate that could not be charged one, and the competition was rigged by the fee bar itself. This is the bypass technique that the article returns to at the end, and it is the provision a reader must grasp to understand why a statute that repealed nothing was experienced, by the states and by the interests gathered around the yard, as abolishing everything. Section 7, on a price information and market intelligence system, and Section 11, which prescribed penalties of not less than twenty-five thousand rupees and up to five lakh rupees for contravention of the trade provisions, with higher penalties for platform operators, completed a short and coherent code for the new space.

The Act’s oversight of the new space was deliberately thin, and the thinness is itself a datum. For the electronic platforms, Section 9 empowered the Agriculture Marketing Adviser of the Directorate of Marketing and Inspection, or an officer of a state government to whom the power was delegated, to take cognisance of a breach of the platform procedures or fair trade guidelines, and after hearing the operator to order recovery of sums payable to farmers and traders, impose the platform penalties, or suspend or cancel the platform’s right to operate; an appeal lay under Section 10 to an officer of the Central Government not below the rank of Joint Secretary. For everything else in the trade area, the ordinary run of transactions between farmer and trader, there was no inspectorate, no licensing visit and no market committee supervision at all: the design trusted the permanent account number, the payment deadline and the dispute ladder to do the work that the state system had done by presence. Supporters described this as the removal of the inspector raj from agricultural trade. Critics described the same design as deregulation dressed as facilitation, pointing out that the mandi, whatever its rents, had provided weighing, grading and a crowd of witnesses at the moment of sale, and that a farmer cheated on weight or quality at a distant farm gate had, under the Act, a complaint to a Sub-Divisional Magistrate rather than a remedy on the spot. The dispute scheme of the Act is treated below with the matching scheme of the farming agreement Act, because the two were drafted as a pair and drew the same objection. What belongs here is the Act’s own self-description. Its preamble spoke of an ecosystem in which farmers and traders enjoy the freedom of choice, of remunerative prices through competitive alternative trading channels, and of barrier-free inter-state and intra-state trade outside the physical premises of markets notified under state legislation. Every word of that self-description was accurate as a description of the text. The argument that consumed the following year was about whether the self-description was also an accurate description of the consequences, and on that question the preamble, like the Act, was silent.

The farming agreement Act: a contract with the land fenced off

The Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Act, 2020, Act 20 of 2020, was the contract farming statute, and it is the Act in the package whose text most plainly contradicts the account of it that circulated during the protests. Section 3 authorised a farmer to enter into a written farming agreement with a sponsor, an agri-business firm, processor, wholesaler, exporter or large retailer, in respect of farming produce to be grown or reared, providing for the terms of supply, the time of supply, quality, grade and standards, and price, and for the supply of farm services by the sponsor. The agreement was to be made before production, which is the entire point of contract farming: the farmer plants against a known buyer and a known price structure rather than planting into an unknown market. Section 3 fixed the period, a minimum of one crop season or one production cycle of livestock and a maximum of five years, extendable by mutual decision where a production cycle ran longer. Section 4 dealt with quality, grade and standards, which were to be mutually agreed and could be monitored by third-party assayers. Section 5 dealt with price, and its requirement deserves emphasis because the price objection dominated the debate: the price to be paid was to be determined and mentioned in the agreement itself, and where the price was subject to variation, the agreement had to provide explicitly for a guaranteed price and for a clear price reference for any additional amount above the guaranteed price, including bonus or premium, a reference that could be linked to prevailing prices in a specified APMC yard or on an electronic trading platform or to another suitable benchmark.

Two provisions of the Act were aimed directly at the fear that contract farming was a road to losing the land, and they are the provisions least mentioned in the public argument. Section 3(2) provided that no farming agreement shall be entered into by a farmer in derogation of any rights of a sharecropper, the tiller or occupier who farms another’s land for a fixed share of the crop or a fixed payment, so that a landowner’s contract could not be used to extinguish the position of the person actually working the land. Section 8 prohibited a farming agreement from providing for any transfer, including sale, lease or mortgage, of the farmer’s land or premises, and forbade the sponsor from raising a permanent structure or making a permanent modification on the land, unless the sponsor agreed to remove it and restore the land at the sponsor’s own cost at the end of the agreement, in which case an unremoved structure vested in the farmer. Then, in the dispute chapter, Section 15 stated the protection in its bluntest form: notwithstanding anything in the recovery provision, no action for recovery of any amount due in pursuance of an order under the Act shall be initiated against the agricultural land of the farmer. The sponsor who was owed money under a farming agreement could recover from the farmer, but the farmer’s liability was confined to the value of the advances received and the cost of farm services provided, and the land itself was placed beyond reach by the text. A government spokesman defending the Act, as the Agriculture Minister did in a written answer in the Rajya Sabha, could therefore say with the text behind him that the agreement covered the crop and not the land. A critic could answer, also with material in the text, that a protection is only worth what the forum enforcing it is worth, and that the forum this Act provided was the subject of the gravest objection to the whole package, to which the article turns after the third statute.

The machinery provisions showed the same centralising hand as the rest of the package. Section 12 of the farming agreement Act empowered a state government to notify a Registration Authority to maintain an electronic registry of farming agreements for the state, a provision that left the registry to the states while the framework it served was the Centre’s. Section 16 then provided that the Central Government may give such directions as it considers necessary to state governments for the effective implementation of the Act, and that state governments shall comply with such directions. In a statute legislating, on the states’ argument, in the states’ own field, a direction power running from the Centre to the states was more than an administrative convenience; it was the package’s theory of the federation expressed in a clause, and the state governments that read the Act in the summer of 2020 read Section 16 as confirmation of what the fee bar and the overriding clause had already told them about their place in the design.

The farming agreement Act also did two quieter things that completed the package’s design. Section 7 exempted farming produce under a farming agreement from the application of state laws regulating sale and purchase and from stock limits under the Essential Commodities Act, and Section 20 gave the Act overriding effect over inconsistent state law, while Section 6 obliged the sponsor to take delivery at the agreed time and place and placed the risk of rejection on stated terms. The pattern across both Acts is the same and it is legislative, not rhetorical: the Centre wrote a complete, self-contained code for the transaction, farming agreement or trade area sale, and then insulated the code from the state law that had previously governed the same transaction.

The third law: the Essential Commodities amendment

The Essential Commodities (Amendment) Act, 2020, Act 22 of 2020, was the shortest of the three and the one whose full record belongs to the series article on the Essential Commodities Act 1955, which owns that statute and its history. What this history requires is its place in the package and the one change it made. The Essential Commodities Act of 1955 empowered the government to control the production, supply and distribution of commodities declared essential, and stock limits imposed under it on traders and processors were, in the government’s stated case, the standing deterrent to private investment in storage, cold chains and processing: no firm builds a warehouse for a commodity the state may at any time forbid it to hold in quantity. The amendment inserted a new sub-section into Section 3 of the 1955 Act providing that the supply of foodstuffs, including cereals, edible oils, oilseeds, pulses, onions and potatoes, might be regulated, and stock limits imposed, only in extraordinary circumstances, specified as war, famine, extraordinary price rise and natural calamity of a grave nature, and it quantified the price trigger: a hundred per cent increase in the retail price of horticultural produce, or a fifty per cent increase in the retail price of non-perishable agricultural foodstuffs, measured against the price prevailing in the preceding twelve months or the average retail price of the preceding five years, whichever was lower. Stock limits were not to apply to a processor or value chain participant up to installed capacity, or to an exporter up to export demand. The amendment thus converted a standing executive discretion into an emergency power with a numerical threshold, and it did so for exactly the storable commodities whose movement the other two Acts were liberalising. The three statutes were one design in three instruments: free the transaction, frame the contract, and disarm the stock limit that had policed both.

What the three Acts did not do

Because the public argument attributed to the Acts several things they never contained, the negative space of the package is part of its legislative history and repays a careful inventory. The Acts did not fix, guarantee or mention the minimum support price, which remained what it had always been, an administrative price announced by the executive on the recommendation of the Commission for Agricultural Costs and Prices for a schedule of crops, carrying no statutory entitlement a farmer could enforce. They did not touch the procurement machinery of the Food Corporation of India or the state agencies, did not alter the public distribution system, and did not amend the law governing the mandi as an institution: the market committee, its licence, its fee and its yard all continued under state law for every transaction that took place inside the yard, and the Acts’ own definition of the trade area was built by excluding the yard rather than by disturbing it. They did not create a regulator for the new trade area comparable to the market committee for the old one; oversight of platforms was left to rule-making and to the Agriculture Marketing Adviser, and no authority was charged with watching prices, grading or conduct in the trade area as a standing function. They did not provide a transition: no phased commencement by state or by commodity, no compensation or adjustment for the fee income states stood to lose, and no statutory consultation with state governments, whose marketing law was overridden, before the override took effect. And they did not build the public architecture that the Bihar experiment suggested a free market needs: warehousing and grading were encouraged by the removal of stock limits rather than constructed, and the price information system authorised by Section 7 of the trade Act was a power to build a system, not a system.

Set against the Acts’ brevity, this inventory is not an accusation of incompetence. It is a description of a legislative theory under which the state’s withdrawals were the reform, and each omission follows from the theory consistently. A statutory support price would have contradicted the theory, which held that price discovery by competing buyers beats price announcement by the state. A regulator for the trade area would have rebuilt, at the Centre, the committee the theory blamed at the state. A transition with compensation would have conceded that the old system’s beneficiaries held something the law ought to buy out rather than bypass. The point for the legislative historian is that the omissions were therefore not available as concessions when the political crisis came. When the government, in the talks of December 2020 and January 2021, offered to amend the Acts on registration of traders, on state fee options and on the dispute forum, it was offering amendments at the margins of a design whose contested features, the fee bar, the absent floor price and the overridden states, were the design itself. A statute whose gaps are accidental can be repaired in negotiation. A statute whose gaps are its philosophy can only be defended whole or repealed whole, and the farm laws 2020 were, in the end, repealed whole.

The commission agent: the credit function the Acts did not replace

No account of the two principal Acts is complete without the figure who stood at the centre of the old system and at the centre of the argument about it: the commission agent, the arhtiya of the Punjab and Haryana mandis. In the government’s telling, the commission agent was the middleman of the reform literature, a licensed intermediary who took a commission on every transaction, controlled the auction the farmer was compelled to attend, and converted a legal monopoly of location into a private tax on the cultivator. In the telling of the mandi towns, the commission agent was also the farmer’s banker. The agent advanced money for seed, fertiliser and family need against the coming crop, carried the farmer across the season’s emergencies, bought the produce on arrival, deducted the advance and settled the account in a relationship that had often run across generations of the same two families. Both descriptions are true of the same institution, and the dual character explains what a pure market analysis misses. A system in which the buyer is also the creditor has obvious pathologies: the farmer cannot bargain hard with the man he owes, cannot sell elsewhere without settling, and pays for credit in the price he accepts. It also has a function no statute in the 2020 package reproduced: it supplies working capital to a borrower whom the formal banking system reaches imperfectly, at the moment of need, without paperwork, against the security of a standing relationship.

The trade and commerce Act abolished the agent’s location monopoly inside the trade area and said nothing about his ledger. A farmer who sold at the farm gate to a trader’s representative gained a buyer and lost a creditor, and nothing in the three Acts created an alternative channel of crop credit tied to the new transactions: the electronic platforms were marketplaces, not lenders, and the banking system’s crop loans ran on their own tracks, through land records and cooperative societies, untouched by the package. The farming agreement Act came closer to the problem, because a sponsor under a farming agreement could and commonly would supply inputs and advances as part of the bargain, and the Act’s confinement of the farmer’s liability to the advances received shows the drafters thinking about sponsor credit. But sponsor credit under a contract is available only to the farmer who contracts, for the contracted crop, on the sponsor’s assessment of the farmer’s reliability, which is to say it reproduces the agent’s gatekeeping in corporate form for a subset of cultivators. The point mattered politically out of proportion to its place in the texts, because the commission agents of Punjab and Haryana were an organised, financed and politically connected constituency who heard the reform as their abolition, and their organisations stood with the unions from the first protests against the ordinances. A legislative history that treats the fee bar as a clause about state revenue alone misses half its incidence: Section 6 also devalued the licence of every commission agent in the procuring states, and the coalition that filled the Delhi border camps in November 2020, farmers, agents, mandi labourers and the political parties of the region, was assembled by that combined incidence. Reformers who design a bypass around an institution should count the institution’s clients and creditors among the bypassed, because they will count themselves.

The dispute scheme: conciliation, the Magistrate, and the closed court door

Both substantive Acts routed their disputes through the same three-tier executive scheme, and both closed the door of the civil court behind it. Under Section 8 of the trade and commerce Act, a dispute between a farmer and a trader arising out of a transaction was first to go to conciliation: on application, the Sub-Divisional Magistrate referred the dispute to a conciliation board which the Magistrate appointed, chaired by an officer serving under the Magistrate’s supervision and control and composed otherwise of members representing the parties in equal numbers, chosen on the parties’ recommendation. A settlement reached in conciliation was drawn up as a memorandum and bound the parties. If the dispute was not resolved within thirty days, either party could approach the Sub-Divisional Magistrate, who sat as the Sub-Divisional Authority and decided the dispute in a summary manner within thirty days, with power to order recovery of the amount in dispute, to impose the Act’s penalties, or to restrain the trader from trading for a period. An appeal lay within thirty days to an appellate authority, the Collector or an Additional Collector nominated by the Collector, who was to dispose of it within thirty days. Every order of the Sub-Divisional Authority or the appellate authority had the force of a decree of a civil court and was enforceable as one, with the decretal amount recoverable as arrears of land revenue. Section 15 then barred the alternative: no civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter the cognisance of which could be taken by an authority under the Act.

The farming agreement Act reproduced the architecture with the parties changed. Its Chapter III provided for a conciliation board for disputes under a farming agreement, then for resolution by the Sub-Divisional Authority, with appeal to an appellate authority, and it armed the authority against a defaulting sponsor with a penalty that could extend to one and a half times the amount due, while confining the farmer’s exposure, as Section 15 of that Act provided, so that no recovery action could touch the farmer’s agricultural land. Section 19 of that Act was the counterpart of the trade Act’s bar: no civil court shall have jurisdiction to entertain any suit or proceeding in respect of any dispute which a Sub-Divisional Authority or the appellate authority was empowered to decide, and no injunction shall be granted by any court or other authority in respect of action taken under the Act.

The government’s case for the scheme was administrative and was honestly come by. Agricultural disputes are small in amount, perishable in subject matter and ruinous to litigate at civil court pace; a summary forum deciding in thirty days, with a further appeal decided in thirty days, offered a smallholder something the civil justice system manifestly did not, which was an answer inside a season. The objection, pressed by lawyers and by the farm unions with equal force, was constitutional in flavour and structural in content. The scheme took a dispute between a citizen and, typically, a firm with legal staff, and placed its adjudication in the hands of the executive magistracy, officers of the same government that had made the law and whose administrative superiors answered for its working. The bar on civil court jurisdiction and on injunctions removed the ordinary judicial check at the first instance, leaving the writ jurisdiction of the High Courts and the Supreme Court as the only judicial door, a door that is expensive and distant for the litigant the scheme claimed to serve. Whatever view a reader takes of the policy of the two Acts, this feature of their design was the point on which the legal objection was strongest and the drafting answer weakest, because the Acts offered speed as a complete reply to an objection that was about independence. It should be recorded, for accuracy, what this history is: an account of a repealed statutory scheme, offered as legal information about a closed episode, and no substitute for advice on any live matter governed by the marketing and contract law that the repeal restored.

What each law actually did

The three statutes were debated as a single package under a single slogan by supporters and opponents alike, and the packaging did real damage to public understanding, because the three instruments did three different things, took rights from three different holders and failed, in the end, for three partly different reasons. The table below separates them.

Row	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	The Essential Commodities (Amendment) Act, 2020
Object	To free the sale of farmers’ produce from the notified market yard and the state marketing statute that governed it	To give contract farming a national statutory frame with a price agreed before production	To confine stock limits on foodstuffs to genuine emergencies so that storage and processing could attract investment
Mechanism	A trade area defined as everywhere outside the notified yards, in which trade needed only a permanent account number and the state could levy no fee, cess or levy	A written farming agreement between farmer and sponsor specifying price or a guaranteed price with a benchmark reference, running from one season to five years	A new sub-section in Section 3 of the 1955 Act permitting regulation and stock limits on listed foodstuffs only in war, famine, extraordinary price rise or grave natural calamity, with price triggers of a hundred per cent for horticultural produce and fifty per cent for non-perishables
Who gained a right	The farmer, who could sell to any buyer anywhere; the trader and the electronic platform, who could buy without a market committee’s licence	The farmer, who gained an enforceable pre-agreed price and a statutory bar on any recovery against the land; the sponsor, who gained an assured supply insulated from state marketing law	The processor, value chain participant and exporter, who could hold stock up to installed capacity or export demand without a stock limit
Who lost one	The state government, which lost the fee on every transaction that left the yard; the market committee and its licensed intermediaries, who lost their captive transaction	The state legislature, whose contract farming and marketing law was overridden; the sharecropper was expressly protected and lost nothing by the text	The executive, which lost its standing discretion to impose stock limits on the listed foodstuffs at will
Dispute forum	Conciliation board appointed by the Sub-Divisional Magistrate, then the Sub-Divisional Authority, then the Collector as appellate authority, with civil court jurisdiction barred by Section 15	Conciliation board, then the Sub-Divisional Authority, then an appellate authority, with civil court jurisdiction barred by Section 19	No forum of its own; it amended the enforcement scheme of the 1955 Act
Strongest objection	The fee bar made the mandi fiscally unviable without repealing it, deciding a federal question by pricing rather than by law	A smallholder’s dispute with a sponsor went to an executive officer, with the civil courts closed and no statutory price tied to any public benchmark	Deregulating stockholding in a food economy exposed consumers and farmers to hoarding by the largest holders, with the emergency trigger set high

The passage record: fourteen days in September

The replacing bills were introduced in the Lok Sabha on 14 September 2020, the first day of a monsoon session already truncated by the pandemic, by the Agriculture Minister, Narendra Singh Tomar. The Essential Commodities (Amendment) Bill was passed by the Lok Sabha on 15 September. The two principal bills, on trade and commerce and on farming agreements, were passed by the Lok Sabha on 17 September, the day the Shiromani Akali Dal’s sole minister in the Union government, Harsimrat Kaur Badal, resigned from the Cabinet over them; her party, the government’s oldest ally, left the ruling alliance nine days later. Neither bill had been examined by a standing committee or a select committee, and no committee stage of any kind intervened between introduction and passage in either House: the texts that became law were, in substance, the texts of the June ordinances, carried through September on the strength of the government’s majority in the lower House.

How long did Parliament take to pass the farm bills?

From introduction on 14 September 2020 to the completion of passage on 22 September 2020, the three bills occupied nine calendar days in Parliament: two days in the Lok Sabha for the principal bills, a single sitting in the Rajya Sabha for each, no committee stage, and assent within the same month.

The Rajya Sabha took the two principal bills on Sunday, 20 September 2020, with the Deputy Chairman, Harivansh, in the chair. Opposition members demanded that the bills be referred to a select committee and, when the motions on the bills were put, demanded a division, a recorded vote in which each member’s vote is counted. A division is the one procedure by which a House in which the government’s majority is doubtful can be made to count that majority rather than estimate it, and the Rajya Sabha was the House in which the ruling alliance did not command a comfortable majority of its own. The demand was not acceded to. The bills were put to a voice vote, in which the chair judges which side has shouted the louder, and were declared passed amid disorder in which members entered the well of the House, papers were thrown and the proceedings were briefly adjourned. The Essential Commodities (Amendment) Bill was passed by the Rajya Sabha two days later, on 22 September, again by voice vote, after a large part of the opposition had walked out or been suspended. On 21 September the Chairman of the Rajya Sabha, M. Venkaiah Naidu, suspended eight opposition members for the remainder of the session for their conduct during the passage, among them Derek O’Brien of the Trinamool Congress, Sanjay Singh of the Aam Aadmi Party and members of the Congress and the Communist Party of India (Marxist), and rejected a notice of no confidence in the Deputy Chairman arising from the same sitting.

The assent record requires one sentence of precision, because the standard reference works and the Gazette differ by three days and the difference is instructive. The President’s assent to the trade and commerce Act and the farming agreement Act was given on 24 September 2020, and to the Essential Commodities (Amendment) Act on 26 September 2020; the three Acts were published in the Gazette of India on 27 September 2020, the date from which they were publicly notified and the date most accounts give as the assent date. Each Act was deemed to have come into force on 5 June 2020, the date of the ordinances it replaced, so the parliamentary fortnight in September ratified, retrospectively, a regime that had already been the law for nearly four months. The procedural choice taken on 20 September is the hinge of the whole history. A division that the government won would have ended the procedural argument on the spot. A division that was refused left the government with statutes whose passage a substantial part of the political system described, from that day forward, as unproven, and converted a contest about agricultural marketing into a contest about whether the laws had been legitimately made at all. In a House where the arithmetic was uncertain, the voice vote saved the bills a risk and cost them the one thing a controversial statute most needs, which is an uncontested record of its own enactment.

The debate on the floor: what was actually argued in September

The parliamentary debate on the bills was compressed into the same sittings that passed them, and its content is part of the passage record, because the arguments made on the floor in September 2020 are the arguments the country then had for a year. Moving the bills, the Agriculture Minister presented them as the completion of an old agenda: the farmer had been bound to the mandi and the commission agent for half a century, the committees and the model Acts had all pointed the same way, and the government was giving the cultivator the choice that every other producer in the economy already had, the choice of buyer. Government speakers returned repeatedly to three assurances: that the mandi system would continue, that procurement at the minimum support price would continue, and that the Acts gave the farmer an addition to the existing system rather than a substitution for it. The opposition’s case on the floor was led by the Congress, whose speakers, Rahul Gandhi prominent among them outside the House and the party’s members inside it, charged that the bills dismantled the three protections the farmer had, the mandi, the support price and the Essential Commodities ceiling on hoarding, and delivered agriculture to large corporate buyers; the Trinamool Congress, the Dravida Munnetra Kazhagam, the Left parties and others pressed the procedural demand first, that bills of this consequence be sent to a select committee where state governments, unions and economists could be heard, and treated the refusal of that reference as evidence about the government’s confidence in its own texts. Regional parties with agrarian bases were split in a way that mapped the geography of the procurement system: the loudest support and the loudest opposition both came from members speaking for the wheat and paddy belt, where the Acts’ consequences were concrete, while members from states where the mandi system was vestigial treated the bills as a lesser matter.

Two features of the debate deserve to survive in the record because they explain what did not happen later. The first is that the debate about the minimum support price was conducted entirely as an argument about assurance. Opposition members demanded that the support price be written into the statutes; government members replied that the price had never been statutory, that procurement was an executive programme untouched by the bills, and that demanding a statutory price was demanding something the old system had never given. Both statements were accurate, and their conjunction is the unresolved centre of the episode: the old system’s guarantee had always been political and administrative rather than legal, and it functioned because the state stood in the mandi as buyer. The bills left that political guarantee formally intact while restructuring the institution through which it was delivered, and neither side in September found language for that distinction, because to name it precisely was to concede the other side’s strongest point. The second feature is the absence of the states as speakers. State governments were the laws’ principal institutional losers and several had formally objected, yet the constitutional design gave them no voice in the proceeding beyond the members their parties sent to the Rajya Sabha, and the demand for a select committee was in part a demand for a forum in which the states could be heard as governments. Its refusal closed the last door through which the federal objection might have entered the legislative process as testimony rather than as litigation.

The monsoon session itself framed the haste. The session had been convened in the pandemic with curtailed sittings and, controversially, without Question Hour, the daily hour in which ministers answer for their departments, and the opposition had entered it already charging the government with using the emergency to compress scrutiny. Into a session of that character the government brought, in its second week, a package that restructured a state subject on which its own standing committee had recommended consensus-building the previous year. The bills were law within nine days of introduction. Measured against the legislative histories in this series, in which statutes of comparable consequence ordinarily show a committee stage, a report, a set of amendments accepted on the floor and a debate spread across a session, the farm bills’ passage record is nearly empty, and the emptiness is the record. There was no committee report to answer, no amendment carried against the government’s wish, no division recorded, and no consultation document to consult. When the laws’ defenders later said the reforms had been debated for twenty years, they were pointing at the committee literature of the pre-history, which was real, and when the laws’ opponents said the laws had never been debated at all, they were pointing at the parliamentary record of September 2020, which was also real. The legislative history has to hold both, because the tragedy of the episode, if the word is permitted once, is that both were telling the truth about different rooms: the argument had happened everywhere except in the room where the law was made.

The competence question: whose subject was agricultural marketing?

Underneath the policy argument ran a constitutional argument that was never resolved and that this article must state exactly. The Seventh Schedule distributes legislative power. Entry 14 of the State List gives the states agriculture, including agricultural education and research. Entry 28 of the State List gives them markets and fairs. Entries 26 and 27 of the State List give them trade and commerce within the state, and the production, supply and distribution of goods, but each of those two entries is expressly made subject to Entry 33 of the Concurrent List. Entry 33 of the Concurrent List, on which both Parliament and state legislatures may legislate, covers trade and commerce in, and the production, supply and distribution of, foodstuffs including edible oilseeds and oils, cattle fodder, raw cotton and raw jute. Entry 42 of the Union List gives Parliament inter-state trade and commerce. The Union’s defence of the farm laws 2020 rested on that architecture: the trade and commerce Act, it was argued, did not legislate on agriculture or on markets as institutions, but on trade and commerce in foodstuffs, a concurrent subject, and on inter-state trade, a Union subject, and the fact that a foodstuff is an agricultural product does not convert a trade law into a law on agriculture. The state marketing statutes remained in force for trade inside their yards, which showed, on this view, that Parliament had occupied only the concurrent field and left the state field intact.

The entry the Union relied on had itself been written for a food emergency, and its history sharpens the question. In the Constitution as adopted, Entry 33 of the Concurrent List covered a narrower field, and the foodstuffs clause on which the farm laws rested was inserted by the Constitution (Third Amendment) Act, 1954, enacted so that the Union could legislate for the production, supply and distribution of foodstuffs in a period of scarcity; the Essential Commodities Act of 1955 was the first great statute built on the enlarged entry. The Union of 2020 could therefore say that Entry 33 had carried central food legislation for sixty-five years and that the farm laws were its orthodox use. The states could reply that the entry had been designed for control, for the power to move grain, cap prices and limit stocks in scarcity, and that to use a scarcity power written for control as the foundation for a permanent code of market deregulation, overriding the marketing law of every state in ordinary times, inverted the purpose for which the Constituent Assembly’s successors had widened the entry. That argument, about the fit between an entry’s history and its use, is the kind of argument the Supreme Court’s federalism jurisprudence knows how to hear, and it was fully framed in the petitions. It remains unheard.

The states’ answer, pressed in the challenges filed in the Supreme Court and in resolutions of state assemblies, was that the distinction was one of drafting rather than of substance. A law that defines the lawful space for the first sale of agricultural produce, displaces the state market committee’s licence with a tax number, forbids the state’s fee and overrides the state Act wherever the two collide, regulates agricultural markets in everything but name, and markets and fairs are a state subject on which Parliament has no entry at all. On the doctrine of pith and substance, the challengers argued, a court looks at what a statute in substance does, and what the trade Act in substance did was to restructure the marketing of agricultural produce across India. The argument had a second limb. Even within the Concurrent List, Article 254 subordinates a state law to a repugnant central law, but the constitutional scheme treats agriculture as a field in which the states’ policy choices are primary, and a central code that achieved by a fee prohibition what it could not achieve by direct repeal was, on this reading, a colourable use of the concurrent entry. Both arguments were fully pleaded. Neither was ever adjudicated, because the litigation was overtaken first by the stay and then by the repeal, and the honest statement of the law is that the competence of Parliament to enact the farm laws 2020 stands formally undecided: the laws are gone, and the question they posed about the reach of Entry 33 into the first sale of produce at the farm gate is available to be posed again by any future Parliament that drafts in the same way.

Which states legislated against the farm laws?

Punjab moved first and furthest, passing three amendment bills in October 2020 designed to nullify the central Acts within the state; Rajasthan passed similar bills in November 2020 and Chhattisgarh amended its mandi law; assemblies in several other states passed resolutions against the laws, and the state bills were reserved for the President and never took effect.

The state counter-legislation deserves a paragraph of its own because it is the federal objection in enacted form. The Punjab bills, passed by the Vidhan Sabha on 20 October 2020 in a special session, sought to amend the central Acts in their application to Punjab, restoring in substance the primacy of the state marketing law, making the minimum support price a term of trade within the state and preserving access to the civil courts; the Rajasthan bills followed the same design in November. Because the bills touched a concurrent subject and were repugnant to central law, they required the President’s assent under Article 254(2) to prevail within their states, and they were reserved for that assent, which was never given. The episode thus closed its own circle: the Centre had legislated over the states by ordinance and voice vote, the states answered with statutes they could not bring into force without the Centre’s constitutional consent, and the federal question was settled, in the end, not by any institution designed to settle it but by the political process of protest and repeal. A historian of Indian federalism reading the farm laws 2020 will find in them a nearly perfect specimen of the system’s central tension: a Concurrent List entry wide enough to carry a national market, a State List entry specific enough to ground a veto in principle, and no forum that produced an answer while the answer mattered.

The case for the laws, stated at full strength

The case for the laws was made by the government that enacted them and by a body of agricultural economists who had advocated the substance for years, and it is a serious case. Its first plank was the condition of the farmer in the regulated yard. Agriculture Minister Narendra Singh Tomar argued in Parliament and outside it that the state marketing Acts had bound the farmer to a single place of sale, that the licence regime had limited the number of lawful buyers and with it the competition for the farmer’s crop, and that the commission structure of the mandi taxed the transaction the farmer could least afford to tax. On this account the trade and commerce Act did not destroy a market; it broke a monopoly of location, and the proof demanded of it was simply that a farmer with a choice of buyers is better placed than a farmer with one. Its second plank was investment. The Essential Commodities amendment addressed, in the government’s telling, the reason India loses a significant share of its perishable produce between the field and the consumer: storage, cold chain and processing capacity require capital, and capital will not build a warehouse for a commodity whose holding the state may criminalise by notification. Its third plank was the contract. The farming agreement Act, its defenders said, let a farmer plant against a price rather than into a void, transferred part of the price risk to the sponsor, and did so under express statutory protections no state contract farming law had matched: no derogation of a sharecropper’s rights, no transfer of the land, no permanent structure on it, and no recovery of any dues against the land itself. Ashok Gulati, the agricultural economist who had chaired the Commission for Agricultural Costs and Prices, defended the laws publicly in these terms, arguing that they moved Indian agriculture toward a market in which the farmer could sell to anyone, anywhere, and that the fears about the support price were misplaced because the Acts did not touch procurement. Prime Minister Narendra Modi stated the political version of the case repeatedly in the autumn of 2020: the laws were, in his phrase, an emancipation of the farmer from middlemen and compulsion, and the opposition to them was an opposition of brokers and their political patrons dressed as concern for the cultivator. The case also had an institutional plank that is easily forgotten. The reforms had been recommended, as the pre-history shows, by the Centre’s own model Acts of 2003, 2017 and 2018, by the Swaminathan Commission, by the Shanta Kumar committee and by the Dalwai committee on doubling farmers’ income, so that a government enacting them could claim, truthfully, that it was implementing the settled advice of two decades rather than improvising a doctrine.

One element of the case for the laws is routinely understated by its opponents and deserves its full weight here, which is the position of the farmer outside the grain belt. The mandi and procurement system that Punjab and Haryana defended was, in most of India, a much thinner thing: in large parts of the east, the north-east and the south, the regulated yard was distant, the procurement presence negligible, and the farmer’s actual choice was between the village trader’s price and no sale at all, with the support price a figure announced on a schedule the farmer would never transact at. For that farmer, a legal entitlement to sell to any buyer, a platform that published prices, and a contract that fixed a price before sowing were not abstractions, and the reform’s supporters in the agricultural economics profession, of whom Ashok Gulati was the most prominent public voice, argued from exactly this geography: that the defence of the mandi was the defence of a system that served one region’s crops and one region’s farmers and had been generalised in argument into a system for all. The argument has force and the episode does not answer it, because the states whose farmers might have gained most from the laws were not the states whose farmers decided their fate. The repeal restored the position of the eastern farmer along with the position of the Punjabi one, and the question of what marketing law owes the cultivator whom neither the mandi nor the procurement system reaches is the fourth question, after the price floor, the federal boundary and the state of Parliament, that the farm laws 2020 left on the table.

The case against, stated at full strength

The case against was made by the farm unions that organised the protest, by the opposition parties, by several state governments and by economists working on contract farming and procurement, and its strongest form is not the slogan version. Its first plank was the fee bar read as a death sentence rather than as competition. The Samyukt Kisan Morcha, the umbrella body of unions that coordinated the protest, argued that a mandi cannot compete with a trade area in which the state is forbidden to charge anything, because the mandi’s fee pays for the yard, the auction, the weighing, the labour and, in Punjab and Haryana, a rural development charge that built the roads the produce travels on; strip the transaction of its fee everywhere except inside the yard and the rational trader leaves the yard, the yard’s income collapses, and with it collapses the only infrastructure through which the state buys grain at the support price. The laws could therefore abolish the mandi system in fact while preserving it in form, and the preservation in form was, on this reading, the technique rather than the answer. The second plank was the missing floor. The reform gave the farmer a freedom, the freedom to sell anywhere to anyone, and attached no statutory assurance about the price the free transaction would fetch; the minimum support price, announced administratively for a schedule of crops and operative in practice where procurement existed, was left entirely outside the statutes, so that the system that guaranteed a floor price for the two crops the north-west grew was exposed to erosion while no legal substitute was offered. When the unions demanded that the support price be made a legal entitlement, they were demanding the one amendment the government would not concede, and the demand’s refusal became the protest’s core. The third plank was the forum. Sukhpal Singh of the Indian Institute of Management Ahmedabad, who had studied contract farming arrangements across states, warned that the formal equality of a written agreement conceals the inequality of the parties to it, and that the Act’s dispute scheme completed the asymmetry by sending the weaker party’s grievance to an executive officer with the civil courts barred, so that the farmer’s statutory protections, real as they were on paper, depended for their enforcement on the goodwill of the district administration facing a sponsor with lawyers. The fourth plank was the federal one already stated: that agriculture and markets are the states’ subjects, that a reform of this depth required the states as partners, and that a Centre which had itself recommended a committee of state ministers in 2019 and then legislated alone in 2020 had chosen the route of maximum resistance. Union leader Rakesh Tikait of the Bharatiya Kisan Union gave the protest its public voice at the Delhi borders, and the unions’ formal position never moved from three words: repeal the laws. On the evidence of the texts, parts of the case against were weaker than its proponents allowed, in particular the claims that the Acts abolished the support price and licensed the seizure of land, which the texts contradict. Its structural planks, the fee bar’s effect on the yard and the procurement system, the missing price floor, the executive forum and the bypassed states, were not answered by the texts at all, because they were arguments about consequences and design rather than about wording, and a government answering them had to argue consequences back. That argument was never had in Parliament, which is the point at which the case against the laws and the case against their passage became the same case.

A fifth element of the case against concerned scale, and it is the element most often expressed in slogan and least often in its precise form. The trade Act’s entry condition for a buyer was a permanent account number; it set no ceiling on the size of a trader, no restriction on a single buyer purchasing across regions, and no obligation on a platform beyond the fair practice guidelines the operator wrote for itself. The farming agreement Act likewise placed the smallholder and the agri-business firm in a relation the statute described as agreement between parties, with the protections already inventoried. The critics’ precise point was not that corporations are wicked but that markets between parties of vastly unequal scale do not stay markets of the textbook kind: a buyer large enough to be the only realistic purchaser in a district does not need a licence to be a monopoly, and a farmer whose alternative buyers have exited has the freedom to sell in the same sense that the mandi had given him the freedom to sell, which is to say formally. The government’s answer was that scale brings the investment, storage and price discovery the old system lacked, and that competition among large buyers, policed by the platform rules and the payment deadline, protects the farmer better than a committee of local licence-holders ever did. Between those two positions lies a genuine empirical dispute about how agricultural markets behave when entry is freed and scale is unrestricted, and the episode settled it in the only way it settled anything: the laws never operated long enough for the evidence to exist.

Did the farm laws abolish the minimum support price?

No. The three Acts nowhere mentioned the minimum support price, which is an administrative price announced by the government on the advice of the Commission for Agricultural Costs and Prices, not a creature of the marketing statutes. The objection was different: that the laws weakened the mandi system through which procurement at that price happened.

Protest, negotiation and the road to the Court

Protests against the ordinances had begun in Punjab in the summer of 2020, directed first at the state level. The passage of the bills converted a regional agitation into a national one. On 26 November 2020, answering a call to march on the capital, columns of farmers from Punjab, Haryana and western Uttar Pradesh reached the borders of Delhi and, stopped from entering, made camps at the crossing points of Singhu, Tikri and Ghazipur that endured for over a year. The protest was sustained by the union organisations of the Samyukt Kisan Morcha and fed by the mandi towns whose economy the laws threatened, and its discipline and duration were themselves a legislative fact: the government faced not a demonstration but a constituency in residence. Between December 2020 and 22 January 2021 the government and the unions held eleven rounds of talks. The government offered amendments: it proposed to give states the option of registering traders and levying a fee outside the mandis, to strengthen the dispute provisions and to give written assurance that procurement at the support price would continue. The unions rejected amendment as a category and held to repeal. A tractor parade held in Delhi on Republic Day, 26 January 2021, deviated from its agreed routes and ended in clashes in the city, an episode the unions disowned as the work of a breakaway group and the government cited as proof of the movement’s direction; the protest at the borders nonetheless continued and, in the weeks after it, grew again.

Alongside the talks the government conducted a public defence of the laws through the protest’s first winter, and its content belongs in the history because it shows what the government believed its strongest ground to be. On 17 December 2020 the Agriculture Minister published an open letter to the farmers of the country, running to several pages, which set out the case for the three Acts provision by provision, repeated the assurances that the mandis and procurement at the support price would continue, and attributed the protest to misinformation spread by political opponents. The Prime Minister addressed the subject in public speeches through the same weeks, inaugurating agricultural infrastructure and returning to the theme that the laws liberated the farmer from compulsory dependence on the mandi and its intermediaries. The defence is notable for what it defended: the texts, their protections and the intentions behind them. It did not defend the process, neither the ordinance route nor the voice vote, and it did not concede the two structural points, the fee bar’s effect on the mandi’s finances and the absence of a price floor, preferring to answer them with the assurance that procurement would continue, an assurance that was true of the government’s intention and beside the unions’ point, which was about the institution that made procurement possible. A defence that answers the argument about the text while the argument in the country has moved to the argument about the institution will persuade only those who never doubted, and the winter’s record, in which the protest grew rather than shrank under the campaign, is the measure of the distance between the two arguments.

The talks require a paragraph of their own, because they are the point at which the legislative process, having failed in Parliament, was attempted again at a negotiating table. The union side was coordinated by the Samyukt Kisan Morcha and spoke through a committee of its leaders; the government side was led by the Agriculture Minister with the ministers for railways and commerce and for food and consumer affairs. The unions’ demands were constant from the first round: repeal of the three laws and a legal guarantee of the minimum support price. The government’s offers grew across the eleven rounds from clarification to amendment to suspension, and each offer was drafted as a concession on administration rather than on design: written assurance that procurement would continue, a provision letting states register private traders and charge a cess outside the mandis to equalise the fee position, a stronger appellate route for disputes, and finally the proposal to hold the laws in abeyance. The unions read the offers in the opposite way, as confirmation that the design could not be defended item by item, and the talks had a structural defect neither side named in the room: the unions were negotiating as the representatives of the institution the laws bypassed, the mandi economy of the north-west, while the government was negotiating as the author of a national policy whose other intended beneficiaries, the farmers of states where mandis barely functioned, had no seat and no voice in the proceeding. A legislative process that had included the states in 2019 or a committee of Parliament in 2020 might have put those other interests on the record. The talks of 2020 and 2021 could not, and their failure was overdetermined before the last offer was made.

The protest’s second year supplied the episode’s darkest passage, and it belongs in the record without embellishment. On 3 October 2021, at Lakhimpur Kheri in Uttar Pradesh, a vehicle in a convoy associated with the family of a Union minister of state drove into a group of protesting farmers, killing four of them; in the violence that followed, four more people died, among them a journalist and two workers of the ruling party. The minister’s son was arrested and charged with murder. The incident hardened every position it touched: the unions treated it as proof of the state’s hostility to the movement, the government treated it as a criminal case to be left to the courts, and the Supreme Court took cognisance of the investigation’s pace. It is recorded here because a legislative history that omits it would misdescribe the atmosphere in which, six weeks later, the repeal was announced, and because the farmers who died at Lakhimpur Kheri died in a dispute about the content of three statutes, which is a thing that should not happen in a system that possesses committee rooms.

What did the government offer the protesting unions in January 2021?

In the final rounds of talks in January 2021 the government offered to keep the three laws in abeyance for a period of up to eighteen months while a committee of government and union representatives examined the questions in dispute. The unions rejected the offer, holding their demand for outright repeal, and the talks ended without a settlement.

By then the question had also moved into the Supreme Court, where writ petitions challenging the laws, among them the petition of Rakesh Vaishnav and other farmers from Bihar, had been filed in the autumn of 2020. The petitions raised the competence question, the State List against Entry 33, together with challenges to the manner of the laws’ passage and to their effect on farmers’ livelihoods. The government defended the laws on their merits and on the Union’s competence, and told the Court that the laws had been the product of two decades of deliberation. The stage was therefore set for the one proceeding in the entire episode in which the texts, rather than the slogans about them, would have governed the outcome, and it is the proceeding that produced no decision.

The Supreme Court stay of the farm laws 2020: a pause that became the ending

The Court’s engagement had begun the previous month, in hearings that mixed the constitutional challenge with the management of the protest itself, since petitions complaining of the blockade of Delhi’s borders were listed alongside the challenges to the laws. The Attorney General, K. K. Venugopal, defended the laws as the product of long deliberation and resisted any interim suspension of a statute Parliament had passed, while counsel for the petitioners pressed the competence objection and pointed the Court to the farmers camped at the capital’s borders through a winter. Across the hearings of December 2020 and early January 2021 the bench returned repeatedly to the negotiation rather than the doctrine, urging the government to consider holding the laws in abeyance itself and observing that the Court would do what the executive would not. The order that followed has to be read against that record: it was the act of a court that had decided the political process needed a pause and that only the Court could supply one, and it supplied the pause without the adjudication that alone could have ended the argument.

On 12 January 2021 a bench of the Supreme Court headed by the Chief Justice of India, S. A. Bobde, and including Justices A. S. Bopanna and V. Ramasubramanian, hearing the challenges to the farm laws 2020 in Rakesh Vaishnav v Union of India and the connected petitions, stayed the implementation of all three laws until further orders. The Court recorded its disappointment with the way the government had handled the negotiations with the protesting farmers, observed that it did not find the laws themselves to be the product of any defect it could cure by suggestion, and made two protective directions part of the stay: the procurement of grain at the minimum support price would continue as it had before the laws, and no farmer would be dispossessed or deprived of title to land as a result of anything done under the farming agreement Act. In the same order the Court constituted a committee of four to listen to the grievances of the farmers and the views of the government and to make recommendations: Bhupinder Singh Mann, a former member of Parliament and president of a Bharatiya Kisan Union faction; Ashok Gulati, the agricultural economist; Pramod Kumar Joshi, an agricultural economist formerly of the International Food Policy Research Institute; and Anil Ghanwat, president of the Shetkari Sanghatana of Maharashtra. The committee’s role in the remedial design of the episode belongs to the series article on what followed the laws; what this history records is its fate. The protesting unions refused to appear before it, on the stated ground that all four members had publicly supported the laws. On 14 January 2021 Bhupinder Singh Mann recused himself, stating that as a farmer and a union leader he would not compromise the interests of Punjab and of the farmers of the country. The remaining three members heard such stakeholders as would appear and submitted their report to the Court in March 2021. The report was not acted upon, the stay was never vacated, and the constitutional challenge was never listed to a decision before the repeal overtook it.

Did the Supreme Court decide whether the farm laws were constitutional?

No. The Court stayed the implementation of the three laws on 12 January 2021 and appointed a committee, but the challenges raising the competence question, the State List entries on agriculture and markets against Entry 33 of the Concurrent List, were never heard to a conclusion, and the repeal of the laws ended the litigation without a ruling.

The stay deserves a historian’s precision about what it was and was not. It was not a judgment on validity, and the Court said nothing that decided the Entry 33 question in either direction; it was an interim order in a charged political atmosphere, made by a court that hoped, and said it hoped, that suspending the laws would send the farmers home and let negotiation resume. It did neither. The protest continued through 2021, the government’s negotiating position hardened into silence, and the laws existed for the whole of that year in the condition the stay had created: enacted, in force in form, inoperative in fact, and unrepealed. The episode’s constitutional legacy was therefore written by an interim order rather than by a judgment, which is why the farm laws 2020 remain, for a student of the Seventh Schedule, the largest unanswered question in Indian agricultural federalism. A statute book from which a law has been repealed ordinarily closes the question it raised. Here the repeal closed the law and left the question open, because the question was never the property of these three Acts alone: it is the question whether the Concurrent List’s foodstuffs entry lets Parliament rebuild the marketing of farm produce over the heads of the states, and any future central marketing statute will have to answer it again.

The year of the stay: a statute in suspension

The eleven months between the stay and the repeal announcement have their own place in this history, because they tested what a stayed statute is. In form, the three Acts stood on the statute book, in force from 5 June 2020, unamended and unrepealed. In fact, the stay froze them at the moment of their infancy: no trade area infrastructure was built out under a law the Court had suspended, no sponsor of sense wrote farming agreements under an Act whose operation a court had paused and whose repeal a mass movement was demanding, and the state governments that had objected to the laws had no occasion to test their counter-statutes, which awaited a presidential assent that was not given. The legislative position through 2021 was thus a triple suspension: the central laws stayed by the Court, the state answers stayed by the assent process, and the constitutional question stayed with both. The protest at the Delhi borders, which the stay was partly intended to dissolve, instead settled into permanence, acquiring the kitchens, libraries and routines of an encamped town, and the government’s public position settled into a matching permanence of silence, in which the laws were neither defended in fresh argument nor withdrawn. Legislative histories usually record enactment, operation and amendment or repeal. The farm laws 2020 supply the rarer sequence of enactment, suspension and repeal, with the operation stage missing, and the missing stage is why every claim about what the laws would have done, made by either side in the years since, is an inference from a design rather than a report of an experience.

The repeal, when it came, was framed by its author as an act of persuasion acknowledged to have failed. In his address of 19 November 2021, the festival of Gurpurab, Prime Minister Narendra Modi said that the government had brought the laws with honest intent for the benefit of farmers, that it had failed to convince a section of the farmers of their merits despite a year of effort, and that the laws would be repealed in the session of Parliament about to begin; he also announced a committee to examine the support price system and urged the protesters to return to their homes and fields. Opposition parties attributed the timing to the assembly elections due in Punjab and Uttar Pradesh in the opening months of 2022, in which the governing party faced the protest’s home constituencies; the government rejected the attribution. For the legislative record the motive matters less than the manner, which is treated in the article on the repeal itself: the Farm Laws Repeal Bill was passed by both Houses on a single day, 29 November 2021, by voice vote and without discussion, so that the laws exited the statute book by the same procedure, compressed, uncounted and undebated, by which they had entered it. Symmetry of that completeness is rare in legislative history and worth pausing on. A Parliament that had not examined the bills on their way in did not examine their repeal on the way out, although the repeal debate was the one occasion on which the year’s experience, the talks, the stay, the camps and the deaths, might have been entered into the record of the institution that made the laws. The opposition demanded that discussion and was refused it. The statute book closed over the episode in silence at both ends.

What the record settles, and the repeal that closed it

The legislative history of the farm laws 2020 supports one verdict with confidence, and it is the verdict the brief of this article is built on: bypass, not repeal. The trade and commerce Act did not abolish a single state marketing statute, close a single mandi, or repeal a single line of state law. It built a zone outside the state regime in which the state could levy nothing, gave that zone overriding effect over the state law, and left the state regime to survive, if it could, as the only taxed point of sale in a system otherwise free. That is why a law that repealed nothing was experienced as abolishing everything, and why the argument about the laws was so persistently at cross purposes: defenders read the text and reported, accurately, that the mandis stood untouched, while opponents read the incentives and reported, also with reason, that a mandi starved of its fee base stands only until its yard empties. Reading the operative provision against the untouched state law is the only way to see both statements at once, and it is the discipline this series applies to statutes generally: a law is its text plus the record of what its text did to the law around it.

What followed belongs to its own articles. The repeal was announced by Prime Minister Narendra Modi in an address to the nation on 19 November 2021, in which he said the government had failed to persuade a section of the farmers of the laws’ merits, and was enacted by the Farm Laws Repeal Act 2021, passed by both Houses on 29 November 2021, which repealed the two principal Acts and removed the Essential Commodities amendment, restoring the 1955 Act to its earlier form. The wider reckoning with the episode, the protest’s organisation, the Court’s committee as an instrument of remedy, and what the passage and the repeal together teach about legislating on a state subject, is taken up in the series article on the lessons of the farmers’ protest for lawmaking. The protests were called off in December 2021 after the government gave written assurances on the unions’ remaining demands, including the constitution of a committee on the support price. The three Acts had by then been law for roughly fourteen months, stayed for eleven of them, and operative at scale for none. Nothing about their validity was settled by any court, nothing about their likely effect was settled by any experience, and the one thing the episode settled beyond argument is procedural: in the Indian system a statute on a contested federal subject, passed without a committee stage and without a counted vote in the House of the states, carries a legitimacy deficit that no subsequent defence of its merits was able to retire.

Template histories in this series end by asking what the passage record of a statute predicted about its working life, and the farm laws 2020 answer the question with unusual completeness. A statute introduced as an ordinance, carried without a committee stage, passed in the states’ House without a counted vote and insulated from the civil courts in its dispute scheme, had announced at every step that the institutions through which consent is ordinarily manufactured, the committee room, the recorded division, the state’s concurrence and the independent forum, would not be used in its case. Its working life reproduced the announcement: the consent that Parliament had not manufactured had to be sought afterwards, in negotiations with unions at a table the government did not control, under the supervision of a court that suspended the statute rather than let the negotiation fail in the streets, and it was not obtained. The counterfactual is not speculative, because the elements of the alternative were all on the record before June 2020: a standing committee’s recommendation of a ministers’ conference, a high-level committee of chief ministers already constituted, model laws already drafted for consensual adoption, and a subject on which the opposition’s demand from the first day was the ordinary one of reference to a select committee. A government that used any two of those instruments would have produced a slower, narrower and probably state-varying reform, and the reform would have carried the one property the enacted package never acquired, which is that the people it displaced had been heard in a forum whose output they had some reason to accept. The farm laws 2020 are therefore best filed, in the legislative history of the republic, not as a failed reform but as a controlled experiment in whether drafting quality and committee literature can substitute for legislative process in a federal democracy. The texts were competent, the literature was real, and the experiment’s result is in.

The questions the episode left on the table

A repeal restores the earlier law; it does not answer the questions the repealed law was answering, and the farm laws 2020 left three standing on the table. The first is the question of the price floor. The protest converted the minimum support price from an administrative practice into a constitutional-style demand, that the price be made a legal entitlement of the farmer, and that demand survived the repeal intact. The Prime Minister’s repeal address promised a committee to examine the support price system’s effectiveness and the wider questions around it, and a committee under the chairmanship of Sanjay Agrawal, a former Union agriculture secretary, was constituted in July 2022 to deliberate on the support price, on natural farming and on crop diversification. Whatever such a committee recommends, the underlying legal question the farm laws exposed remains exactly where the episode found it: whether the Indian state should convert a procurement price, delivered in practice to a minority of farmers growing a few crops in a few states, into a statutory right enforceable by every farmer everywhere, with the fiscal and market consequences that conversion carries. The farm laws did not pose that question; they assumed an answer to it, that a free market would make the floor unnecessary, and the assumption was the one part of their theory the country examined and rejected in the streets.

The second standing question is the federal one, and it is the question this article has treated as the episode’s legal core. Entry 33 of the Concurrent List remains in the Seventh Schedule with its 1954 foodstuffs clause unamended, Entries 14 and 28 of the State List remain unamended beside it, and no judgment construes their boundary at the farm gate. A future Parliament that wishes to legislate a national market for agricultural produce has the same texts to work with and the same precedent, which is to say none, and a future state that wishes to resist has the same pleadings ready. The episode did, however, establish a political precedent where the law has none: the route of ordinance, voice vote and override was tried at full strength and failed completely, and the alternative route, the model law adopted state by state that the Centre pursued between 2003 and 2018, remains open and unrepealed, with several states having amended their own marketing law in pieces over the years. The constitutional road to marketing reform still runs through the state legislatures, not because the courts said so, but because the one attempt to build a shorter road collapsed under the weight the shorter road could not carry.

The third standing question is about Parliament itself, and the farm laws share it with the repeal. Between September 2020 and November 2021 the Indian Parliament enacted three statutes restructuring a sector in which, on any estimate, well over two-fifths of the workforce is engaged, and then repealed them, without a committee report, without a recorded division on the principal questions, and without a debate on the repeal. The episode therefore belongs not only to agricultural history but to the longer argument about the hollowing of the legislative process that runs through the histories in this series: the ordinance used where a bill would do, the committee stage treated as an obstacle rather than an instrument, and the voice vote used in the one House where a count was the point. The laws’ substance was debatable and was debated, in the country, for a year. The institution charged with that debate performed it least. A reader who finishes this history understanding the trade area, the fee bar and the closed court door, but not that institutional failure, has the provisions right and the history wrong, because in the end the farm laws 2020 were not defeated by a better argument about marketing. They were defeated by the accumulated refusal of every constituency they touched, farmers, states, commission agents and opposition parties, to accept a law made in the manner these were made, and the refusal outlasted the government’s majority, its committee, its court stay and its defence of the merits.

Frequently Asked Questions

Q: What were the three farm laws of 2020?

The three farm laws of 2020 were the Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Act, 2020, which freed the sale of farmers’ produce outside the notified market yards of the state APMC laws and barred any state fee on such trade; the Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Act, 2020, which created a national framework for contract farming through written farming agreements with a price fixed before production; and the Essential Commodities (Amendment) Act, 2020, which amended the Essential Commodities Act of 1955 so that stock limits on listed foodstuffs could be imposed only in extraordinary circumstances such as war, famine or an extraordinary price rise. All three began as ordinances on 5 June 2020, were passed by Parliament in September 2020, were stayed by the Supreme Court in January 2021 and were repealed in November 2021 without their validity ever being decided by a court.

Q: Why did the farm laws start as ordinances?

The government promulgated the three measures as ordinances on 5 June 2020 because Parliament was not in session, and an ordinance under Article 123 of the Constitution lets the executive legislate with immediate effect subject to parliamentary approval within six weeks of the Houses reassembling. The government’s stated reasons were urgency and timing: the Agriculture Minister argued that the marketing reforms had been under discussion for two decades, that the pandemic had shown the weakness of a system forcing farmers to a single crowded market yard, and that an ordinance in June let farmers use the new freedoms in the season that followed. Critics answered that a reform twenty years in preparation was the opposite of an emergency, that the subjects were state subjects on which consultation was owed, and that beginning by ordinance announced that the consultation the Standing Committee on Agriculture had recommended in 2019 would not take place. The replacing bills reached Parliament in September 2020.

Q: How were the farm bills pushed through Parliament in September 2020?

The replacing bills were introduced in the Lok Sabha on 14 September 2020. The Essential Commodities (Amendment) Bill passed the Lok Sabha on 15 September and the two principal bills on 17 September, with no reference to a standing or select committee at any stage. In the Rajya Sabha on 20 September the two principal bills were taken up with Harivansh in the chair; opposition members demanded a reference to a select committee and then a division, a counted vote, and the chair proceeded by voice vote, declaring the bills passed amid disorder in the House. The third bill passed the Rajya Sabha on 22 September. Eight opposition members were suspended on 21 September for their conduct during the passage. The President’s assent was given on 24 and 26 September and the Acts were published in the Gazette on 27 September 2020, each deemed in force from 5 June 2020.

Q: What was the trade area outside the mandi?

The trade area was the statutory space created by Section 2(m) of the Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Act, 2020. It meant any area or location of production, collection and aggregation, including farm gates, factory premises, warehouses, silos and cold storages, from which farmers’ produce could be traded anywhere in India, excluding only the physical premises of the market yards, sub-market yards and deemed markets notified under state APMC Acts. Inside a trade area any farmer could sell to any trader holding a permanent account number, electronic trading platforms could operate, and by Section 6 of the Act no state market fee, cess or levy could be charged on the transaction. The mandi did not cease to exist; it became the one place of sale where the state still took a fee, which is why the trade area, though defined as a space, functioned as a competing system.

Q: What did the contract farming law provide?

The Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Act, 2020 provided a national framework for a written farming agreement between a farmer and a sponsor, made before production, covering the supply of farming produce and farm services. Section 3 set the period at one crop season minimum and five years maximum and barred any agreement in derogation of a sharecropper’s rights. Section 5 required the price to be stated in the agreement, and where price varied, a guaranteed price plus a clear reference for any additional amount. Section 8 barred any transfer, lease or mortgage of the farmer’s land under an agreement and any permanent structure on it, and Section 15 barred any recovery of dues against the farmer’s agricultural land. Disputes went to a conciliation board and then to the Sub-Divisional Authority, with the civil courts barred, and produce under an agreement was exempted from state marketing law and stock limits.

Q: Why were civil courts barred under the farm laws?

Both principal Acts replaced the civil court with a three-tier executive scheme, and the stated reason was speed. A dispute under the trade and commerce Act went first to a conciliation board appointed by the Sub-Divisional Magistrate, then to the Sub-Divisional Magistrate sitting as the Sub-Divisional Authority, who had to decide summarily within thirty days, and then on appeal to the Collector within a further thirty days; the farming agreement Act used the same structure. Section 15 of the trade Act and Section 19 of the agreement Act barred civil court jurisdiction over any matter those authorities could decide. The government’s argument was that agricultural disputes are small and perishable and are ruined by civil court delay. The objection, pressed by lawyers and unions, was that adjudication by executive officers of the government that made the laws, with the ordinary courts closed, denied the weaker party an independent forum, leaving only the writ jurisdiction of the High Courts.

Q: Did Parliament have the power to make the farm laws?

That question was argued but never decided. Agriculture is Entry 14 and markets and fairs are Entry 28 of the State List, which supported the states’ case that agricultural marketing belonged to them. The Union relied on Entry 33 of the Concurrent List, which covers trade and commerce in foodstuffs, cattle fodder, raw cotton and raw jute, and on Entry 42 of the Union List, covering inter-state trade and commerce, arguing that the Acts regulated trade in commodities rather than agriculture or markets as institutions. The challengers replied that in pith and substance the trade Act restructured the first sale of agricultural produce and displaced state market committees, which made it a law on markets wearing a trade label. The Supreme Court stayed the laws without ruling on competence, and the repeal ended the litigation, so the reach of Entry 33 into the farm gate sale remains an open constitutional question.

Q: Why did the Supreme Court stay the farm laws?

On 12 January 2021, in Rakesh Vaishnav v Union of India, a bench headed by Chief Justice S. A. Bobde stayed the implementation of all three laws until further orders. The Court said it was disappointed with the handling of the negotiations with the protesting farmers, hoped that suspending the laws would encourage the farmers to end the protest and return to negotiation, and coupled the stay with directions that procurement at the minimum support price would continue as before and that no farmer would be dispossessed of land under the farming agreement Act. It also appointed a four-member committee to hear the farmers’ grievances and the government’s views. The stay was an interim order, not a finding that the laws were invalid: the Court decided nothing about competence or rights, and because the laws were repealed while the stay stood, nothing was ever decided.

Q: Who could trade in the trade area, and what did a trader need first?

Section 3 of the trade and commerce Act gave every farmer, trader and electronic trading platform the freedom to carry on inter-state or intra-state trade in farmers’ produce in a trade area. For the category that state law regulated most closely, scheduled farmers’ produce, meaning produce specified for regulation under a state APMC Act, Section 4 imposed a single condition on the buyer: a trader could trade only if the trader held a permanent account number allotted under the Income-tax Act, 1961, or another document notified by the Central Government. Farmer producer organisations and agricultural co-operative societies were excepted from the condition. The design replaced the market committee’s licence, a permission that could be granted or refused, with a tax identity that any genuine trader holds by entitlement, and it fixed no capital, turnover or experience threshold for entry into the trade.

Q: What penalty could a trader face under the trade and commerce Act?

Section 11 of the Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Act, 2020 prescribed the penalties. A person who contravened the trade provisions of the Act or the rules under it was liable to a penalty of not less than twenty-five thousand rupees, which could extend to five lakh rupees, and where the contravention continued, a further penalty of up to five thousand rupees for each day of continuance after the first. A person who owned, controlled or operated an electronic trading and transaction platform and contravened the platform provisions faced a higher band, not less than fifty thousand rupees and up to ten lakh rupees, with a further daily penalty of up to ten thousand rupees for a continuing breach. The penalties were imposed through the Act’s own dispute machinery, by the Sub-Divisional Authority or the officer empowered over platforms, rather than by prosecution in a criminal court.

Q: How quickly did a trader have to pay the farmer under the 2020 trade law?

Section 4(3) of the trade and commerce Act set the payment term. Every trader who transacted with a farmer had to make payment for the traded scheduled farmers’ produce on the same day as the transaction, or, where procedure genuinely required it, within a maximum of three working days. The farmer was protected at the point of handover as well: the receipt of delivery, mentioning the amount due, had to be given to the farmer on the same day the produce changed hands, so the seller held a document stating the sum owed from the day of delivery rather than having to prove the debt later. The Central Government could prescribe a different payment procedure for farmer producer organisations and agricultural co-operative societies, whose payment was linked to the receipt of payment from their own buyers, an exception aimed at the aggregation layer rather than at the individual sale.

Q: How long could a farming agreement run under the contract farming Act?

Section 3(3) of the Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Act, 2020 fixed the duration of a farming agreement. The minimum period was one crop season or one production cycle of livestock, so an agreement could not be written for less than the time the contracted crop or animal cycle took to produce. The maximum period was five years. Where the production cycle of the produce was longer and ran beyond five years, as with a plantation crop, the maximum could be mutually decided by the farmer and the sponsor and had to be explicitly mentioned in the agreement. Section 3(4) empowered the Central Government to issue guidelines and model farming agreements to help farmers contract on standard terms. Section 11 added that the parties could alter or terminate an agreement at any time by mutual consent for reasonable cause.

Q: Could a sponsor recover dues from a farmer’s land under a farming agreement?

No. Section 15 of the farming agreement Act stated that, notwithstanding the Act’s recovery provision, no action for recovery of any amount due under an order passed under the Act shall be initiated against the agricultural land of the farmer. The protection sat alongside Section 8, which barred a farming agreement from providing for any transfer, including sale, lease or mortgage, of the farmer’s land or premises, and barred the sponsor from raising a permanent structure or making a permanent modification on the land unless the sponsor undertook to remove it and restore the land at the sponsor’s cost. The farmer’s own liability under an agreement was also confined in substance to the value of the advances received and the cost of the farm services provided. Agriculture Minister Narendra Singh Tomar relied on these provisions in Parliament to answer the charge that contract farming endangered the farmer’s title: the agreement covered the crop, not the land.

Q: What happened when conciliation failed under the farm laws’ dispute scheme?

Under Section 8 of the trade and commerce Act, an unresolved dispute between a farmer and a trader moved from the conciliation board to the Sub-Divisional Magistrate, sitting as the Sub-Divisional Authority, if the parties could not settle it within thirty days. The Authority decided in a summary manner within thirty days of the filing, after hearing the parties, and could order recovery of the amount in dispute, impose the Act’s penalties, or restrain the trader from trading in scheduled farmers’ produce for a stated period. An aggrieved party could appeal within thirty days to the appellate authority, the Collector or an Additional Collector nominated by the Collector, who was to dispose of the appeal within thirty days. Every order had the force of a decree of a civil court and was enforceable as one, with the decretal amount recoverable as arrears of land revenue. The farming agreement Act followed the same ladder.

Q: What did the Essential Commodities (Amendment) Act 2020 change about stock limits?

The amendment worked on Section 3 of the Essential Commodities Act of 1955, the provision under which the government controlled production, supply and distribution of essential commodities. It inserted a new sub-section providing that the supply of foodstuffs, including cereals, edible oils, oilseeds, pulses, onions and potatoes, could be regulated, and stock limits imposed, only under extraordinary circumstances: war, famine, extraordinary price rise or natural calamity of a grave nature. Extraordinary price rise was quantified: a hundred per cent increase in the retail price of horticultural produce, or a fifty per cent increase for non-perishable agricultural foodstuffs, over the lower of the preceding twelve months’ price or the average retail price of the preceding five years. Stock limits were also disapplied to processors and value chain participants up to installed capacity, and to exporters up to export demand. The full record of the 1955 Act is treated in the series article that owns that statute.

Q: When did the three farm Acts come into force?

Each of the three Acts was deemed to have come into force on 5 June 2020, the date on which the ordinances they replaced were promulgated. That retrospective commencement was written into the Acts themselves: the trade and commerce Act stated in its first section that it shall be deemed to have come into force on the fifth day of June 2020, and the replacing Acts repealed and saved the corresponding ordinances so that everything done under an ordinance was treated as done under the Act. The chronology therefore runs in an unusual direction. The regime began as executive law on 5 June 2020, Parliament passed the replacing bills between 15 and 22 September 2020, the President’s assent was given on 24 September for the two principal Acts and 26 September for the Essential Commodities amendment, and the Acts were published in the Gazette on 27 September 2020 with effect already running from June.

Q: What is Entry 33 of the Concurrent List and why did it matter for the farm laws?

Entry 33 of the Concurrent List in the Seventh Schedule empowers both Parliament and state legislatures to make laws on trade and commerce in, and the production, supply and distribution of, specified goods: foodstuffs including edible oilseeds and oils, cattle fodder, raw cotton and cotton seed, and raw jute, together with the products of industries whose control the Union has declared expedient in the public interest. It mattered because agriculture and markets are State List subjects, Entries 14 and 28, so Entry 33 was the principal bridge by which the Union claimed power to enact the farm laws 2020: the Acts, on the Union’s argument, regulated trade in foodstuffs, a concurrent field, and inter-state trade under Entry 42 of the Union List, rather than agriculture itself. Entries 26 and 27 of the State List are expressly subject to Entry 33, which the Union also relied on. The Supreme Court never ruled on the argument.

Q: What did the Supreme Court order on procurement and land while the farm laws were stayed?

The order of 12 January 2021 in Rakesh Vaishnav v Union of India did two things beyond staying the implementation of the three laws. First, it protected the procurement system as it stood: the Court directed that the minimum support price system in place before the laws would continue in the meantime, so the stay could not itself be used to wind down purchases at the support price while the litigation was unresolved. Second, it protected the farmer’s title: the Court ordered that no farmer shall be dispossessed or deprived of title as a result of any action taken under the farming agreement Act. Those directions mattered because they answered, for the duration of the stay, the two fears that had driven the protest, the erosion of procurement and the loss of land, without the Court having to decide whether the laws were valid. The committee the Court appointed the same day reported in March 2021.

Q: Why did the demand for a division matter in the Rajya Sabha passage of the farm bills?

A division is a counted vote: instead of the chair estimating which side is louder, each member’s vote is recorded and the numbers are published. When the two principal farm bills were taken up in the Rajya Sabha on 20 September 2020, opposition members demanded a division, and the demand mattered for two reasons. The first was arithmetic: the ruling alliance did not command a comfortable majority in the Rajya Sabha, so a count was the one test that could have shown whether the bills actually commanded the House. The second was legitimacy: the bills were declared passed by voice vote amid disorder, so no recorded count of their support exists, and the absence of that record became a standing part of the case against the laws from that day onward. The chair’s refusal of the division, followed by the suspension of eight opposition members the next day, converted a policy dispute into a dispute about the validity of the passage itself.

Q: What rules governed electronic trading platforms under the trade and commerce Act?

Section 5 of the trade and commerce Act governed the platforms. Any person other than an individual who held a permanent account number, and any farmer producer organisation or agricultural co-operative society, could establish and operate an electronic trading and transaction platform for trade in scheduled farmers’ produce in a trade area, and each transaction on the platform had to result in physical delivery of the produce. The operator was required to prepare and implement guidelines for fair trade practices covering the mode of trading, fees, technical parameters including inter-operability with other platforms, logistics, quality assessment, timely payment and dissemination of the guidelines in the local language of the place of operation. If the Central Government considered it necessary in the public interest, it could by rules prescribe the procedure, norms and manner of registration for platforms, a code of conduct, and the modalities of trade, and under Section 7 it could require a platform to provide information about its transactions.