The holy grail of all judicial systems around the world is to build a society where justice and harmony prevail. However, as it is repetitively affirmed, justice must not only be done but also seen to be done. This justice loses its significance when not delivered within a reasonable time period. Alternative Dispute Resolution mechanism is an efficient alternative to judicial proceedings as it is quicker and requires less cost and paperwork. Further, the absence of formalities like formal pleadings, written statements, and evidence in consonance with Indian Evidence Act makes Alternative Dispute Resolution more effective.
Alternative Dispute Resolution has emerged and proved to be one of the most effective means of solving disputes, involving out of court settlements. The recent farm laws, Farmer’s Produce Trade and Commerce (Promotion and Facilitation Act, 2020), Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Act, 2020, Contract Farming Act and Essential Commodities (Amendment) Act, 2020] have become a cause célèbre in the recent times. There are certain provisions in these laws w.r.t. alternative dispute resolution which will be dealt with in this piece. This article critiques the farm laws on the basis of their shortcomings in ensuring effective the means to extend Alternative Dispute Resolution to the farm laws effectively.
The Farmers Produce Trade and Commerce (Protection and Facilitation) Act, 2020 (FPTC ACT): The farmers earlier had numerous restrictions w.r.t. marketing of their produce. The farmers were supposed to sell the produce only to registered licensees of the State government. Hindrances existed w.r.t. the flow of agricultural produce between different States as well, owing to the varied APMC legislations in States. The FPTC Act aims at removing the restrictions which had existed prior to the existence of this Act. Under this Act the Section which deals with dispute resolution is Section 8 which encompasses the following mentioned points:
1) It deals with the dispute between the trader and farmer.
2) An application for dispute resolution is to be filed before the Sub-divisional magistrate [Section 8(1)].
3) The Sub-divisional magistrate (SDM) is to then form a conciliation board, consisting of a Chairperson appointed by the SDM and either two or four persons, out of which half shall represent the parties in dispute. These persons are to be appointed by the Chairperson, after receiving a recommendation from the parties. If, the parties are not able to make such recommendation in seven days then, such persons shall be appointed by the SDM.
4) The provisions related to appeals are also found under this Section. An appeal can be made if there is no settlement within 30 days from the date of the formation of the conciliation board, the appeal is to be made to SDM acting as the Sub-divisional authority [Section 8(5)]. An appeal can alternatively be made from the order of SDA as well within 30 days of receiving such an order. This appeal is to be made to the Collector or Additional Collector as nominated by the Collector.
The Farmers (Empowerment and Protection) Agreement of Price Assurance and Farm Services Act, 2020: The agricultural sector in India is imbued with certain characteristics such as – small land holdings (fragmented), dependence on weather conditions and unpredictability of market and production. All these factors lead to risk and inefficiency with respect to the overall functioning of the agricultural sector. The Contract Farming Act aids in removing the above-mentioned uncertainties and associated risks. Under this Act, the Section which deals with Alternative Dispute Resolution is Section 13. Since the work is to be carried out under an agreement or a contract, the discussion with respect to dispute resolution would be carried out even before any actual dispute. Section 13 provides for a conciliation board, to which all disputes could be referred to in case any such dispute arises. The conciliation board members would consist of representatives of the parties to the agreement. Section 13 encompasses the following mentioned points:
1) All farming agreements are to provide for the formulation of a conciliation board.
2) The appellate authority (first) shall be the Sub-divisional authority.
3) The second appeal is to be made to Collector or Additional Collector as nominated by the Collector.
4) Both the above-mentioned appeals are to be filed within 30 days of the order made.
Apart from these provisions, Section 14 also elaborates further provisions with respect to ADR in the same manner as has been prescribed by Section 8 of the Farmers Produce Trade and Commerce (Protection and Facilitation) Act, 2020.
As per Section 15 of the FPTC Act and Section 19 of the Contract Farming Act, there is a complete prohibition on the jurisdiction of civil courts. Also, as per Section 13, FPTC Act and Section 18, Contract Farming Act the Central/ State government, SDA, any appellate authority is immune from being prosecuted for anything done or intended to be done in good faith.
As per the provisions mentioned above, excessive power has been given to the executive. The following mentioned points highlight the same:
a) Jurisdiction of civil courts is expressly prohibited where section 89 of the Civil Procedure Code exclusively deals with Alternative Dispute Resolution. Further, the term “alternative” in Alternative Dispute Resolution clearly suggests that this extra judicial setup does not exist to completely overshadow the traditional court setup. Further, denying such disputes the chance to be tried under traditional court setup in case ADR fails (which is allowed in other matters), is another drawback of the provisions.
b) Appointment of Chairperson and other members is to be done by the executives only.
c) If the parties fail to recommend in 7 days, then power lies with the SDM to appoint, thereby giving excessive discretion to his authority.
d) Both appeals lie to the executives only, thereby overlooking the role of actual judicial bodies.
e) The only judicial remedy available under the above-mentioned laws is writ jurisdiction under Article 32 and Article 226. However, this option restricts and narrows the function and scope of judicial systems to a large extent.
It goes without saying that alternative dispute resolution offers a lot of benefits being effective in terms of cost and time. Further, ADR setup does not require formalities like formal pleadings, written statements and presentation of evidence, thereby proving to be more cost effective and efficient. However, till date individuals are reluctant to opt for this method. It is a plain-sailing notion that the person adjudicating a dispute concatenated to agricultural matters, must be well-versed in the field of agriculture. Further, the complete concept of ADR itself is rather new and therefore there is too severe a lack of resources to burden ADR setup with such excessive responsibility. The provisions of laws mentioned above do not mention any such qualification of the adjudicating authorities related to the field of agriculture, where the neutral third party in ADR is supposed to be a technical expert in that field.
There exists a possibility that the conciliators being appointed by the executives may be biased towards certain individuals. This probability will defeat the ultimate purpose of providing justice. Hence, despite the fact that conciliation offers a lot of advantages, it can be disadvantageous in this case. Further no remedy available in traditional court setup and the fact that unlike other legal disputes, here parties to the agreement are not allowed to choose their mode of dispute resolution is inherently flawed.
Provision related to condonation of delay is yet another drawback in the above-mentioned law. In the FPTC, a condonation of delay for a period of 90 days is permitted for electronic trading. But no provision for condonation of delay is provided w.r.t. disputes under Section 8, FPTC Act and the Contract Farming Act.
A Way Forward
The alternative mode of dispute resolution has become renowned in the contemporary times. Indeed, the benefits conferred by this mode are manifold and of great importance. The commercial expediency of new farm laws can also not be ignored. Since, there are no middlemen in the whole process of trading the farmers can sell their produce at better prices. The new farm laws have also introduced the concept of electronic trading. This e-trading is also commercially expedient this will increase the market area for selling the produce. As the reach of farmers is widened, they are no longer bound to sell their produce to certain limited purchasers, in this way they can avail better opportunities and prices.
Though, the new farm laws have adopted the conciliation method of dispute resolution, yet these provisions are inadequate in certain aspects. These fallacies broach some serious concerns and hence require immediate attention. In order to ameliorate the existing legislation, following suggestions can be taken into account:
1. Qualification for adjudicators: In order to impart and give justice it is essential that the one who provides the same should be well-qualified. Qualifications ensure the affected parties that their case will be judged by an individual who is aware of all the nuances w.r.t. the field of concern. In the new farm laws, no qualification is being provided w.r.t. the adjudicators. Therefore, the first and foremost suggestion is to incorporate changes and add qualifications for the post of adjudicators.
2. Restricted application of condonation of delay: It is an accepted phenomenon that there be prescribed a certain time limit for bringing a legal action. This phenomenon is based on the idea that one who sleeps over his rights can later find no remedy. However, in certain cases this delay in initiating an action can be condoned. In the new farm laws condonation of delay is being restricted to electronic trading only. Keeping in mind the principles of justice, equity and good conscience, it is essential that this provision of condonation of delay be extended to other matters as well.
3. Mediation/Conciliation Committee could be set up to facilitate the functioning of the conciliation board. A separate committee can be set up for all the States, being region specific this committee can base its advice on the local requirements of a particular State and area.
(This post has been authored by Trisha Shreyashi, a final year student of School of Law, KIIT DU and a member of the Advisory Council of the Harvard Business Review. )
CITE AS: Trisha Shreyashi, ‘Enabling Alternate Resolution for our very own countrymen: ADR under Farm Laws, 2020’ (The Contemporary Law Forum, 11 April 2021) <https://tclf.in/2021/04/11/enabling-alternate-resolution-for-our-very-own-countrymen-adr-under-farm-laws-2020/> date of access.