Begumhan Simsir – Managing Editor, Legit
Amri Gupta – Associate Editor, Legit.
Vijayalakshmi Raju – Chief Managing Editor, Legit
The New Indo-Pacific Trilateral Dialogue and what It Brings
On the 9th of September, 2020, India, Australia, and France held their first trilateral dialogue through videoconference. The conference was co-chaired by Foreign Secretary of Ministry of External Affairs of India Mr. Shri Harsh Vardhan Shringla, Secretary-General of the French Ministry of Europe and Foreign Affairs Mr. François Delattre and Secretary of Department of Foreign Affairs and Trade of Australia Ms. Frances Adamson. The new trilateral cooperation will be an addition to the already existing Quad consisting of the USA, Australia, Japan, and India. The main topic of the meeting was to exchange views about strengthening cooperation in the Into-Pacific region. The three states decided to continue and hold the dialogue on an annual basis to provide effective and long-lasting solutions to the issues in the region.
Maritime Domain and Cooperation
Although various topics in the region were discussed in the meeting, the main topic remained around the ways to enhance cooperation in the region. Australia, and also France have become a major strategic partner of India in the Indo-Pacific Region and the Indian Ocean Region (IOR), with a focus on the maritime domain. India has various logistic agreements with both of the countries, to facilitate the good and services supply access. In the maritime domain, France is the first state, who deployed a Liasion Officer at the Information Fusion Centre of the Indian Army (IFC-IOR) with the aim of improving the Maritime Domain Awareness (MDA). Earlier this year, in February, India and France conducted joint patrols in Reunion Islands (in the western Indian Ocean), for the first time. The topic of maritime security cooperation and the possibilities of enhancing it between the three countries were discussed. The need for reformed multilateralism was mentioned repeatedly, and initiatives like International Solar Alliance and Coalition for Disaster Resilient Infrastructure to develop cooperation in the region were taken into consideration. Marine and cooperation on global marine commons were also highlighted in the conference, with a particular focus on marine biodiversity, environmental challenges, blue economy, and environmental challenges.
Three states did not only discuss the ways to create newer paths of cooperation; the ways to continue and strengthen the existing trilateral and regional cooperation methods were also among the main topics. The significance of regional organizations such as the Association of Southeast Asian Nations (ASEAN), Indian Ocean Commission and Indian Ocean Rim Association (IORA) was underlined. The possibility of France joining the Supply Chain Resilience Initiative (SCRI), which is an initiative aiming to build resilient and reliable supply chains built recently by India, Japan and Australia was also talked about. As expected, the current global pandemic of coronavirus, which is one of the reasons why the conference was held as a videoconference call, was also discussed between the states in the meeting. The financial impact of the pandemic on the countries in the Indian Ocean region was mainly focused on. The officials said, “The increased salience of resilient and reliable supply chains was also discussed.”Particularly, cooperation on vaccine development and domestic responses to the pandemic were talked about. The Indian Ministry of External affairs summarised the topics discussed in the meeting saying, “Cooperation on Marine Global Commons and potential areas for practical cooperation at the trilateral and regional level were also discussed, including through regional organizations such as ASEAN, IORA and the Indian Ocean Commission.”
Although not openly expressed, China's recent aggressive behaviour in the Indo-Pacific region, especially in the South China Sea. An increase in maritime surveillance to monitor the Chinese Naval activities in the Indo-Pacific waters is expected from this trilateral group as a response to the increasing presence of China in the region. India's relations with China have been tense since the border standoff in May; similarly, Australia is experiencing severe strains and a significant change in its relations with China. Thus, the anxiety over the increased presence of China in the region and the urgent need for this meeting is nothing unexpected. Despite the tenseness in the recent relations in the region, the conference emphasized multiple times the importance "to ensure a peaceful, secure, prosperous and rules-based Indo-Pacific region." Following the meeting French ambassador to India, Mr. Emmanuel Lenain tweeted: “trilateral talks (focused) on boosting cooperation for a free, open and inclusive Indo-Pacific. Together we will uphold our values and interests!” Even though details on the topic were not shared yet, it is known that possible reforms in multilateralism were also one of the topics of the conference. In a statement made by the French authorities, it was pointed out that this dialogue “helped to underscore the goal of guaranteeing peace, security and adherence to international law in the Indo-Pacific” region.
Seeing from the meetings and the shared reactions of the actors to these meetings, it would not be far fetched to say that this trilateral group would be a lasting one. In addition to the existing Quad, without a doubt, this trilateral group will be an essential source for multilateral conversations and strengthening cooperation in the region. Further development into the issue of pandemic and its effects and outcomes in the Indo-Pacific countries, the possible cooperation specific on this issue and vaccine could provide relief to peoples and ease the sufferings caused by the pandemic. Nonetheless, this meeting provides a one of a kind chance to develop and further the progress and achievement these three countries had done in their bilateral relations in the past years and shows a promise of more cooperative and inclusive development in the region.
The Era of Virtual Justice-Time Bound or Need Forever?
The pandemic has made countries all around the world to adapt to this ‘new normal’ system of imparting justice. The courts have been trying hard to extend the branches of justice to every possible corner. Amidst the unlock and lockdown, the interaction of people is limited and takes place through laptops, phones, etc. There has been a significant change in the way of carrying out proceedings, interchange of documents, and cross-examination. At the end of the day, one gets unplugged from this outer world upon switching off a laptop, phone, etc.
The Technological Shift
The developed countries have adapted to this change quickly when compared to the Indian Judicial System. China, the country first hit by the pandemic, has gone through rapid developments in ODR platforms, usage of AI tools in management and adjudication of civil and criminal proceedings, and specialized courts. The reason for such reforms is the use of ‘Smart Courts’ which was proposed by the Supreme People’s Court of China in 2015. Since then, courts have been directed to use technology to turn into Smart Courts.
In 2016, a technological reform was initiated by the UK Government. As a result of this, the existing courts in England and Wales have been able to modify too quickly to the pandemic. In March 2020, a report by the Researchers at the University of Surrey detailed the use of virtual hearings in criminal cases; it mentioned that the use deteriorated the quality of process and rights of the defendants because of the lack of verbal communications during virtual hearings. (Fielding, et al., March 2020)
The concept of virtual hearing is less tackled by Indian lawyers but this pandemic has forced them to enter into a phase of technological reform. On 15th September 2020, Justice DY Chandradhud during a virtual event, emphasized the fact that services of the court cannot be denied to a litigant on account of inequitable access to technology. The event was organized by the Madras High Court to launch five e-court projects for Tamil Nadu. He also stated that the National Judicial Data Grid (NJDG) should be used to assess judicial officers wholly i.e. including their ability to incorporate Information and Communication Technology (ICT) governance. He informed that out of 34.74 lakhs of cases, 15.32 lakhs have been disposed of in the last five months. (Emmanuel, 2020)
Will this shift replace the Physical Courts?
In the UK, the Ministry of Justice clarified in 2016 that the virtual hearings would be used in appropriate cases. On the same lines, Justice DY Chandrachud during a webinar in May 2020 organized by the Nyayam Forum of the NALSAR University, emphasized a point that virtual hearings cannot be a substitute for the open Court systems, which form the “spine” of Indian legal system. He also stressed that there is a large section of Indian people who lack access to technology but that cannot be a ground to exclude them from ensuring justice.
A letter dated 20th October 2020, was written to the Chief Justice of Delhi High Court by the Bar Council of Delhi, requesting to adopt a hybrid system in all courts in Delhi. BCD stated that the rest of the sections of the society are getting back to the usual course of work and lawyers are the only section to be locked in their houses. The BCD revealed that the system of virtual hearings has led to the adjournment of 75 percent of the cases which is leading to distress among lawyers coupled with the fear of losing out on fees. Therefore, there is a dire need for a hybrid system. (Mahajan, 2020)
Probable Concerns with Virtual Justice
The concept of transparency is one of the most concerns along with cyber-security concerns. At present, when India is juggling between COVID-19 and boundary disputes, it becomes essential to ensure transparency in judicial proceedings to prevent internal disturbance. Further, non-verbal communications might prove a disadvantage to defendant lawyers.
What can be concluded?
It took almost eleven months for courts across countries to get accustomed to the system of virtual justice. And, as no one has heard of vaccine this system will exist until the pandemic dissolves or a new method is developed by courts to impart justice.
Countries like China and the UK have been started to reform their judicial system much earlier which makes them work more efficiently in this pandemic. However, for the Indian Judicial System, the technology is still a less explored area. As most of the courts prefer physical hearing to virtual hearing, the era of virtual justice is time-bound because once the pandemic disappears, the courtrooms will again be stuffed with black robes and an uncountable number of case files. And then again justice will be delayed to immemorial time.
Emmanuel, Meera. 2020. Bar and Bench. barandbench.com. [Online] September 15, 2020. [Cited: October 24, 2020.] https://www.barandbench.com/news/justice-dy-chandrachud-virtually-launches-5-e-court-projects-at-madras-hc.
Fielding, Professor Nigel, Braub, Professor Sabine and Hieke, Dr.Graham. March 2020. Video Enabled Justice Evaluation. South East England: Sussex Police & Crime Commissioner, March 2020.
Mahajan, Shruti. 2020. Bar and Bench. barandbench.com. [Online] October 20, 2020. [Cited: October 24, 2020.] https://www.barandbench.com/news/start-hybrid-system-of-hearings-bar-council-of-delhi-requests-chief-justice.
Agriculture Ordinances, 2020
➔ The Farmers' Produce Trade and Commerce (Promotion and Facilitation) Ordinance, 2020 permits intrastate and interstate trade of farmers' produce beyond the physical premises of APMC markets. The State Governments are prohibited from levying any cost of market fee, cess or a levy outside APMC areas.
➔ The Farmers' Agreement Ordinance makes a framework for contract farming through an agreement between a farmer and a buyer before the production level or rearing of any farm produce. It provides a three-level dispute settlement mechanism:
- The Conciliation Board
- Sub Divisional Magistrate
- Appellate Authority
➔ The Essential Commodities (Amendment) Ordinance, 2020 allows the Central Government to regulate the supply of certain food items only under extraordinary circumstances (in cases of war and famine). Stock limits may be imposed on agricultural produce only if there is a steep price rise.
The President passed three Ordinances related to the agriculture sector on 05th June 2020 namely
- The Farmers' Produce Trade and Commerce (Promotion and Facilitation) Ordinance, 2020.
- The Farmers' (Empowerment and Protection) Agreement on Price Assurance and Farm Services Ordinance, 2020 and
- The Essential Commodities (Amendment) Ordinance, 2020.
The Recent briefs took up the following
- The Code on Social Security, 2019 (10th September 2020).
- The Insolvency and Bankruptcy Code (Amendment) Ordinance, 2020 (09th September 2020).
It aims to increase the availability of the buyers for farmers' produce by allowing them to trade freely without any licence or stock limit so that an increase in competition would be made which results in better prices for farmers. While the ordinance aims to liberalize the trade and increase the number of buyers, deregulation alone may not be sufficient to attract more buyers.
The Standing Committee on Agriculture (2018-2019) noted that the availability of a transparent, easily accessible, and efficient marketing platform is a primary source to ensure the remunerative prices for the farmers. Most farmers who lack access to government procurement facilities and APMC markets. It is also taken into consideration that the small ruler markets can emerge as a viable alternative for agricultural marketing only if they are provided with adequate infrastructure facilities.
The Standing Committee also recommended that the Gramin Agricultural markets scheme which aims to improve the infrastructure and civics facilities in 22,000 Haat across the country shall be made a freely suspended Central scheme which scaled to ensure the presence of a Haat in each Panchayat of the country.
Highlights of the Ordinances
The Agricultural Markets in India is mainly regulated by the state Agriculture Produce Marketing Committee (APMC) laws. APMCs were set up, intending to ensure fair trade between buyers and sellers for effective price and discovery of farmers' produce. They are as
➔ The regulation of the trade of farmers' produce by providing licences to buyers, commission agents and private markets;
➔ To levy market fees or any other charges on such trade, and provide necessary infrastructure with their markets to facilitate the trade.
➔ The Standing Committee on Agriculture (2018-2019) has looked into the APMC laws which have not been executed in the truest sense and needs to be reformed urgently.
The issues which are identified by the Committee include, most APMCs have a limited number of traders operating, which leads to cartelization and reduces competition, and undue deductions in the form of commission charges and market fees. Traders, Commission agents, and other functionaries who organise themselves into associations do not allow easy entry of new persons into market yards, stifling competition. The Act is highly restrictive in the promotion of multiple channels of marketing and competition in the system.
During the year (2017-18), the central government released the model APMC and contract farming Acts which allows restriction-free trade of farmers’ produce, promote competition through multiple marketing channels, and promote farming under pre-agreed contracts.
The Standing Committee (2018-19) noted that states have not implemented several reforms suggested in the model Acts. It recommended that the central government constitute a Committee of Agriculture Ministers of all states to arrive at a consensus and design a legal framework for agricultural marketing.
A High Powered Committee consisting of seven Chief Ministers was set up in July 2019 to discuss, among other things: (i) adoption and time-bound implementation of model Acts by states, and (ii) changes to the Essential Commodities Act, 1955 (which provides for control of production, supply, and trade of essential commodities) for attracting private investment in agricultural marketing and infrastructure.
The central government promulgated three Ordinances on June 5, 2020:
(i) the Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Ordinance, 2020,
(ii) the Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Ordinance, 2020, and
(iii) the Essential Commodities (Amendment) Ordinance, 2020.
The Ordinances collectively seek to
(i) facilitate barrier-free trade of farmers’ produce outside the markets notified under the various state APMC laws,
(ii) define a framework for contract farming, (iii) impose stock limits on agricultural produce only if there is a sharp increase in retail prices.
The three Ordinances together aim to increase opportunities for farmers to enter long term sale contracts, increase the availability of buyers, and permit buyers to purchase farm produce in bulk.
The Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Ordinance, 2020
Trade of farmers’ produce:
The Ordinance allows intra-state and inter-state trade of farmers’ produce outside:
The physical premises of market yards run by market committees formed under the state APMC Acts and other markets notified under the state APMC Acts. Such trade can be conducted in an ‘outside trade area’, i.e., any place of production, collection, and aggregation of farmers’ produce including
➔ Farm gates
➔ Factory premises
➔ Cold storages.
The Ordinance permits the electronic trading of scheduled farmers’ produce (agricultural produce regulated under any state APMC Act) in the specified trade area. An electronic trading and transaction platform which may be set up to facilitate the direct and online buying and selling of such products through electronic devices and the internet.
The following entities may establish and operate such platforms:
➔ Companies, partnership firms, or registered societies, having Permanent Account Number (PAN) under the Income Tax Act, 1961 or any other document notified by the central government.
➔ A farmer producer organisation or agricultural cooperative society.
Market fee abolished: The Ordinance prohibits state governments from levying any market fee, cess or levy on farmers, traders, and electronic trading platforms for the trade of farmers’ produce conducted in an ‘outside trade area’.
The Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Ordinance, 2020
Farming agreement: The Ordinance provides for a farming agreement between a farmer and a buyer before the production or rearing of any farm produce. The minimum period of an agreement will be one crop season or one production cycle of livestock. The maximum period is five years unless the production cycle is more than five years.
Pricing of farming produces: The price of farming produce should be mentioned in the agreement. For prices subject to variation, a guaranteed price for the product and a clear reference for any additional amount above the guaranteed price must be specified in the agreement. Further, the process of price determination must be mentioned in the agreement.
Dispute Settlement: A farming agreement must provide for a conciliation board as well as a conciliation process for the settlement of disputes. The Board should have a fair and balanced representation of parties to the agreement. At first, all disputes must be referred to the board for resolution. If the dispute remains unresolved by the Board after thirty days, parties may approach the Sub-divisional Magistrate for resolution. Parties will have a right to appeal to an Appellate Authority (presided by collector or additional collector) against decisions of the Magistrate. Both the Magistrate and Appellate Authority will be required to dispose of a dispute within thirty days from the receipt of the application. The Magistrate or the Appellate Authority may impose certain penalties on the party contravening the agreement. However, no action can be taken against the agricultural land of a farmer for recovery of any dues.
The Essential Commodities (Amendment) Ordinance, 2020
▪ Regulation of food items: The Essential Commodities Act, 1955 empowers the central government to designate certain commodities (such as food items, fertilizers, and petroleum products) as essential commodities. The central government may regulate or prohibit the production, supply, distribution, trade, and commerce of such essential commodities. The Ordinance provides that the central government may regulate the supply of certain food items including cereals, pulses, potatoes, onions, edible oilseeds, and oils, only under extraordinary circumstances. These include (i) war, (ii) famine, (iii) extraordinary price rise and (iv) natural calamity of grave nature.
▪ Stock limit: The Ordinance requires that the imposition of any stock limit on agricultural produce must be based on price rise. A stock limit may be imposed only if there is:
(i) a 100% increase in the retail price of horticultural produce;
(ii) a 50% increase in the retail price of non-perishable agricultural food items. The increase will be calculated over the price prevailing immediately preceding twelve months, or the average retail price of the last five years, whichever is lower.
Availability of buyers for farmers’ produce and infrastructure
The Trade and Commerce Ordinance provides buyers with the freedom to buy farmers’ produce outside the APMC markets without having any license or paying any fees to APMCs. The Contract Farming Ordinance provides a framework for buyers and farmers to enter into a contract (before a crop season starts) which guarantees farmers a minimum price and buyers an assured supply. The third Ordinance amends the Essential Commodities Act to provide that stock limits for agricultural products can be imposed only when retail prices increase sharply and exempts value chain participants and exporters from any stock limit. The three Ordinances aim to increase the availability of buyers for farmers’ produce, by allowing them to trade freely without any license or stock limit, so that an increase in competition among them results in better prices for farmers. While the Ordinances aim to liberalise trade and increase the number of buyers, this may not be sufficient to attract more buyers.
For instance, in 2006, Bihar repealed its APMC Act with a similar objective to attract private investment in the sector and gave charge of the markets to the concerned sub-divisional officers in that area. This resulted in a lack of required marketing infrastructure as the existing infrastructure eroded over time due to poor upkeep. In unregulated markets, farmers faced issues such as high transaction charges and a lack of information on prices and arrival of produce. The Committee of State Ministers constituted in 2010 for agricultural marketing reforms, observed that complete deregulation of markets did not help in attracting any private investment. It noted that there is a need for an appropriate legal and institutional structure with a developmental type of regulation to ensure the orderly functioning of markets and to attract investment for infrastructure development.
The Standing Committee on Agriculture (2018-19) recommended that the central government should create marketing infrastructure in states which do not have APMC markets (i.e. Bihar, Kerala, Manipur, and certain union territories).
Note that the Ordinances do not repeal the existing APMC laws (as done by Bihar), but limit the regulation of APMCs to the physical boundaries of the markets under their control. The Ordinances may result in increased competition, which may also make APMCs more efficient in providing cost-effective marketing services. Further, for farmers selling their produce outside the APMC markets, the prices prevailing in APMC markets can serve as a benchmark price, helping in better price discovery for farmers.
Gramin Agriculture Markets:
The Standing Committee noted that the availability of a transparent, easily accessible, and efficient marketing platform is a prerequisite to ensure remunerative prices for farmers. Most farmers lack access to government procurement facilities and APMC markets. Small and marginal farmers (who hold 86% of the agricultural landholdings in the country) face various issues in selling their produce in APMC markets such as inadequate marketable surplus, long-distance to the nearest APMC markets, and lack of transportation facilities. The average area served by an APMC market is 496 sq. km., much higher than the 80 sq. km recommended by the National Commission on Farmers.
The Standing Committee (2018-19) noted that Gramin Haats (small rural markets) can emerge as a viable alternative for agricultural marketing if they are provided with adequate infrastructure facilities. It recommended that the Gramin Agricultural Markets scheme (which aims to improve infrastructure and civic facilities in 22,000 Gramin Haats across the country) should be made a fully funded central scheme and scaled to ensure the presence of a Haat in each panchayat of the country. The central government has proposed the development of basic infrastructure in Gramin Haats through the National Rural Employment Guarantee Scheme and of marketing infrastructure through the Agri-Market Infrastructure Fund. The Fund will be set up by NABARD to provide Rs 1,000 crore to states at a concessional interest rate for the development of marketing infrastructure in Gramin Haats.
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LEGIT ORIGINALS:Volume I, Issue III