Farmer protest: Why SC intervention should be taken with a pinch of salt

While apex court has skipped petitions on constitutionality of the farm laws, the panel formed by it to hold negotiations with farmers has members who have supported the farm laws in the past

supreme court, collegium, permanent judges, Madras High Court, CJI, S A Bobde, N V Ramana, R F Nariman
The Supreme Court on Tuesday put all the three contentious farm laws on hold. Photo: PTI

The Supreme Court on Tuesday put the Centre’s three farm laws on hold and formed an expert committee to hold negotiations with the farmers protesting against the contentious legislations at the borders of the national capital.

There are two dimensions to the apex court’s order.

To begin with, the order is a moral and political defeat for the central government. In the initial stages of the agitation, the government had refused to even have discussions with farmers. Then, it agreed to negotiations, but with the condition that the new legislations would not be altered. The government then agreed to amend a few clauses in the Acts. It agreed to shelve the Electricity Bill 2020 as well as the measures that would have penalised farmers of Punjab and Haryana for stubble burning. Then, finally, the government admitted that more discussions could have been organised with farmers before passing the farm Bills.

Thus, the order by the Supreme Court of India has come at a time when the government was withdrawing from many of its hardened positions, and was also in a bind, given the growing support for the farmer’s agitation on a national level. Given the harsh statements from the court on the centre’s handling of the agitation, the government has now been pushed to the back foot, both morally and politically.

Related news: SC panel members know to advocate farm laws, say agitating farmers

At the same time, the intervention of the Supreme Court has also raised suspicion among farmers and the general public. First, the Supreme Court has not even begun hearing the multiple petitions filed before it on the constitutionality of the farm laws. The key contention in many of these petitions is that the central government violated the federal principles enshrined in the Constitution and waded into the legislative turfs of state governments. Agriculture is a state subject in the Constitution as per Entry 14 in the State List. Entry 28 in the State List refers to “markets and fairs”. However, what the centre did was to invoke Entry 33 of the Concurrent list, to which Entry 26 and 27 of the State List are subject to. Such an inappropriate usage of Entry 33 to legislate on issues in Entry 14 and Entry 28 of the State List is the central question raised in the petitions.

The Supreme Court has not yet touched this point of contention. Instead, it chose to treat the farmer’s agitation as a civil liberties issue, just as it tended to treat the Shaheen Bagh agitation during the anti-CAA protests of 2019 and 2020. Whether Delhi could be blockaded was the major issue raised and discussed in the court at that time instead of the CAA. Given this context, none of the major contentions of the farmer’s organisations, including the constitutional objections, were discussed in the court.

The Supreme Court chastised the central government on its handling of the protest. It disagreed with the government that it did enough to engage with the farmer’s organisations. It announced that it was staying the farm laws till a committee appointed by the court completes negotiations with farmers. This nature of intervention by the Supreme Court has in fact raised more questions than it has answered.

Questions to ponder

First, can the Supreme Court “stay” the farm Acts? Is there precedence where an Act was stayed without holding it prima facie violative of the Constitution? It appears not. As lawyer Gautam Bhatia pointed out, the Supreme Court had refused to stay many other important legislations in the past, even when the petitioners had offered strong objections, such as in the Aadhaar Act, Jammu and Kashmir Reorganisation Act and the Citizenship Amendment Act. No committee was formed in any of those instances. But the urge of the Supreme Court to stay the farm laws and form a committee to hold negotiations has raised serious questions of constitutional propriety.

Secondly, no farmer’s organisation had prayed to the Supreme Court requesting its mediation. Even the Union government was, at least on record, opposed to the idea of mediation. Yet, the Supreme Court found it desirable to steamroll a mediation process on the farmers.

Thirdly, and this is the most worrisome, the committee appointed by the Supreme Court has four members, all of whom have publicly declared positions in support of the Farm Acts. Ashok Gulati and P.K. Joshi are celebrated neoliberal economists, who have long argued for free market reforms in agricultural marketing. Gulati had called the passage of the Farm Acts as a ‘1991 moment for agriculture.’ Joshi had written in a recent article that the Farm Acts would lead to the ‘evolution of competitive markets and benefit both producers as well as consumers.’ Anil Ghanwat heads the Shard Joshi-faction of the Shetkari Sanghatana, which has always stood for free trade and private corporate-led markets in agriculture. He is on record stating that the three Farm Acts would provide ‘financial freedom to farmers’ and that he would press for ‘further freedoms’ for the farm sector. Bhupinder Singh Mann is the President of a faction of the Bharatiya Kisan Union (BKU), which has supported the Acts (though with some minor amendments). He had said that these ‘reforms are needed in order to make agriculture competitive.’

Related news: Won’t go before SC committee, it’s just a divide-and-rule tactic, say farmers

Finally, what are the terms of reference for this Committee? The Supreme Court order states that this committee was formed ‘for the purpose of listening to the grievances of the farmers relating to the farm laws and the view of the government and to make recommendations.’ Can the Committee recommend repeal of the Farm Acts? Without such clarity, it is impossible to foresee any positive outcome to follow from its proceedings.

Clearly, it would be difficult to expect the farmers to perceive such a committee with any admiration. It would be totally understandable if they tend to treat this step of the Supreme Court with suspicion. No genuine farmer’s organisation is likely to be interested in conversing with such a committee. In fact, consciously or unconsciously, the Supreme Court itself has given a good reason for the farmers to boycott the committee’s proceedings.

(The author is a Professor at the Tata Institute of Social Sciences, Mumbai).

(The Federal seeks to present views and opinions from all sides of the spectrum. The information, ideas or opinions in the articles are of the author and do not reflect the views of The Federal).

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