Setting a bad precedent

The decision to put on hold the three farm laws has put the Supreme Court under scanner for intervening in a social movement

On Jan. 12, the Supreme Court stayed the implementation of three farm laws over which farmers have been protesting for more than a month now, and set up a four-member committee to address the grievances of the protesters. But the decision led to widespread condemnation for the apex court wading into political and administrative management instead of looking into the constitutionality of the farm laws. The decision to put these laws on hold is a bad constitutional precedent and may lead to courts intervening in the law-making processes of the legislature in future.

It is Parliament’s role to make laws. It follows certain procedures for this. The procedure was followed for making three farm bills into laws. People are well within their rights to protest. Farmers, especially from Punjab and Haryana, have been peacefully protesting at Sindhu border in Delhi to demand scrapping of these laws. They did not resort to any action that may seem unconstitutional or illegal. The Supreme Court is custodian of the Constitution and can always question the constitutionality of a law. The top court may nix a law if it is convinced the substance of the law is against the basic nature of the Constitution. Stay on implementation should also follow a prima facie conviction about unconstitutionality of a law. In the current situation, the apex court did not consider the constitutionality of three farm laws and did not mention any legal basis for the suspension decision but felt a need to intervene to break the impasse between the protesting farmers and the government that has held several rounds of talks but to no avail. That, experts feel, is not the function of the judiciary. Courts have no role to mediate in political disputes, such as the one between the farmers and the government, they add.

The SC’s attempt to resolve the government-farmer problem may create new problems of its own. In future, the court may stay every new law or any law in the name of intervention if there are protests over them. And, this, experts said, will be against separation of powers of the executive, the legislature and the judiciary.

The government enacted three laws – Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Act; Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Act; and Essential Commodities (Amendment) Act – for bringing in reforms in the agriculture sector in order to improve income and well-being of farmers, diversification of crops and make agriculture environmentally sustainable but the laws haven’t gone down with the farmers. The biggest worry of the protesting farmers is that the government is seeking to do away with the MSP (minimum support price) regime by allowing areas outside the APMCs (agriculture produce market committees) to be trading areas without any fees and cess. This, farmers said, does not provide a level playing field because there are taxes in the APMCs. The government has repeatedly assured the farmers that the MSP won’t go away but the farmers don’t seem to be convinced and have gone to each round of negotiations with just one demand: scrap the laws. That, of course, cannot be a precondition for any talks. If one is not open to ceding ground, talks hold no meaning but the government has still gone to the table several times. The MSP, they said, has never been a legal provision; it was implemented as an executive order. That, they added, will continue to be done but farmers wanted assurance about MSP to be mentioned in the law. You can have a view on who is right – the government or the farmers – but it is for people or political process to decide this if there’s no unconstitutionality involved.

Basically, it is the Parliament’s duty to mend if it breaks something. The mediation to break a political stalemate is always welcome but it has to be a political process, not judicial.

There are questions about the committee, too. Its members – agriculture economist Ashok Gulati, Bhartiya Kisan Union (Mann) president Bhupinder Mann, Shetkari Sangthan president Anil Ghanwat and former director of South Asia International Food Policy Research Institute Pramod Joshi – have been seen on the side of the government and in favour of the farm laws. So, like veteran journalist Hartosh Singh Bal said in a tweet, it is like asking a bunch of hangmen to debate death penalty. The statement from the All India Kisan Sangharsh Coordination Committee (AIKSCC) said: “It is clear that the court is being misguided by various forces even in its constitution of a committee. These are people who are known for their support to the three Acts and have actively advocated for the same.”

The farmer leaders have said they will not participate in proceedings of the committee but left the formal decision on this to the Sanyukt Kisan Morch, an umbrella body of around 40 protesting farmers’ unions.

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