The farmers especially in Punjab and Haryana region engage in rice-wheat cultivation. This leaves behind a large quantity of paddy straw which is also known as stubble or parali in the fields which has to be cleared to prepare the field for sowing the next crop. In the absence of costly machines and state assistance, the farmers are forced to clear the filed by burning this stubble. Delhi, the capital city of India is the most polluted city in the world. In the month of November, the air quality deteriorates drastically . Much of this is attributable to the stubble burning that is carried out by the farmers of the adjoining states of Punjab, Haryana and Uttar Pradesh. On a number of occasions, executive as well as judicial authorities, in order to assuage the public opinion, have hastily issued orders banning stubble burning. In this article the author tries to argue how these orders are violative of the farmers’ right to equality under Article 14.

The Ban On Stubble Burning Without Providing State Assistance To Farmers Is Arbitrary

Every person residing within the territory of India is entitled to equality before law and equal protection from law under Article 14. It was observed in E.P Royappa's case that equality and arbitrariness are sworn enemies. Therefore, Article 14 invalidates any State action which is arbitrary. The reason why farmers resort to stubble burning is because they do not have the financial wherewithal to procure the costly machines that would help them in switching to alternative methods of disposal of crop residue. The blanket bans that have been imposed on stubble burning by various authorities over the years are blatantly arbitrary because they have failed to take into account the hardships faced by the poor farmers of Punjab, Haryana and Uttar Pradesh. Some Centrally sponsored schemes have also been rolled out to provide the equipment at subsidised rate to facilitate the disposal of crop residue, but the same has not been implemented well. It has been alleged by peasant leaders that the cost of the machinery that the farmers procure from the Government, are even higher than the market price. Failure to implement a scheme by the Government has also been held to be violative of Article 14. The Apex Court in 2019 had come down heavily on the Chief Secerataries of Punjab, Haryana and U.P for being unable to provide the farmers necessary machinery at a subsidised rate. The farmers have no other option but to burn crop residue to clear the field. Therefore, in spite of the heavy fine, the farmers have continued to violate the orders banning crop residue burning. After being rebuked by the Apex Court, the State Government of Punjab and Haryana finally decided to provide an incentive Rs. 2,500 per acre in November 2019 for that season. However, till then it was too late, and harvest season of the Kharif crop had already started. Therefore, such incentives should be announced beforehand and should be a permanent feature, so that the farmers feel more encouraged to switch to other means of paddy straw disposal.

Moreover, in 2009 two statutes namely Punjab Preservation of Subsoil Water Act and Haryana Prevention of Subsoil Water Act were passed by the Legislative Assembly of Punjab and Haryana respectively to preserve groundwater. The Section 3 of both the respective Acts prohibit the farmer from cultivating the paddy crop before the 15th of June. This forced delay in sowing of the Kharif crop causes a further delay in its harvest thereby leaving a very short gap between harvest of Kharif crop and the sowing of the Rabi crop. Therefore, in a desperate bid to prepare their field for the next crop (usually wheat), the farmers see stubble burning as a cheaper and less-time consuming method for clearing their field. It is unreasonable for the State to expect that in light of such constraints, the farmers will be able to switch to alternative modes of crop residue disposal. Thus there is an urgent need to repeal these statutes so that the farmers get more time between harvest of paddy and sowing of wheat.

There Is Need To Classify Farmers On The Basis Of Their Income

The ban on stubble burning is particularly more draconian for small and marginal farmers who can barely make ends meet. Article 14 seeks to achieve substantive equality as opposed to formal or absolute equality. The concept of equality as enshrined under Article 14 is not oblivious to the varying needs of different categories of people. Therefore, it is well within the purview of the powers of the State to make a different set of laws for different categories of people i.e. to make classification. Such a classification is reasonable only if the that the same is being done for a reasonable and legitimate objective and the differentia so adopted has a rational nexus with the objective. There should be a clear and substantive grounds for differentiating between the different categories of people. The fine imposed by the ban has in some cases have gone up to 1 lakh. The average annual income of Indian farmers is Rs. 77,116 and this amount would be even lesser for the small and marginal farmers. Therefore, it is extremely important that the Government while imposing fine should make different slabs of fine payable as per the income and land holdings of a farmers. It is these small and marginal farmers who would most severely face the brunt of these fines that are imposed defaulting farmers.

The concept of equality does not mandate that identical and same law should be applicable to everyone in spite of different and varying needs. However, till date every such ban that has been imposed by either the state Governments or the judicial bodies have failed to take into account such drastic differences and the varying needs of different categories of farmers. The doctrine of reasonable classification not only permits but also puts an obligation on the State to make different set of laws for different people depending upon their different conditions. It has been held by the Supreme Court in Moopil Nair v. State of Kerala invalidated a land tax law on grounds that the land tax was imposed without making a classification on the basis of income and productivity of land.

Equality of opportunity encompasses within itself the twin concept of non-discrimination and affirmative action. It is not enough for the State to merely treat everyone fairly and equally, but it should also take active steps to bring the vulnerable sections of the society on the same footing as those who belong to advanced section. Therefore, the State should endeavour to provide machines for stubble disposal at subsidised prices. It should also provide monetary incentives to the farmers who switch to alternative methods of stubble disposal and make commercially viable for the farmers to economically exploit stubble by selling it into the market. It was noted by the Supreme Court in a 2019 order that the benefits of these schemes had mostly gone to the big farmers keeping the small and marginal away from these schemes. Therefore, it is imperative that the farmers are classified into different categories on the basis of their income and land holding and a targeted and a more specific attempt should be made to provide subsidised machinery and equipment to the small and marginal farmers. This classification would definitely satisfy the test of reasonable classification because such classification would ensure better compliance by the small and marginal farmers of the ban on stubble burning when they are assured of incentives and have access to subsidised equipment for stubble disposal. This would help the State in achieving the purpose of environment protection.

The deteriorating air quality in Delhi-NCR region has been posing a threat to the health of the populace of that region. The executive as well as the judicial authorities should definitely take steps to tackle this situation. The State may by all means ban stubble burning to protect the right to healthy environment as enshrined under Article 21. However, the same should be done in a way that the legitimate interests of the weaker sections of the societies are also taken care of. The authorities should look towards the Apex Court order of 1996 wherein followed a pragmatic approach in order to protect Taj Mahal, a cultural heritage, against the hazards of air pollution, by issuing guidelines for the relocation of industries. At the same time, they also ordered the Government to incentivize these industries on relocation. Here, the Court was also mindful of the hardship that the employees would have face and issued a package of compensation for workmen employed in these industries. Thus it is imperative that the State safeguards the interests of the farmers by incentivising them to switch to alternative methods of stubble disposal and providing them costly equipment at a subsidised rate. Thus in conclusion it would be pertinent to cite the Supreme Courts observation in its 2019 order that, ‘to punish farmers is not the solution, provide them with basic amenities.

Title Image source: AajTak

This article has been written by Akshat Bhushan. He is a law student at Hidayatullah National Law University, Raipur.

This article won consolation prize in 1st HuRiCo National Blog Writing Competition.