On 11 January, the Supreme Court intervened in the stand-off between the Centre and the agitating farmers, but could not accomplish anything that would change the situation. The observations of Chief Justice of India SA Bobde generated some hope, but there was no positive response from the Centre.
Justice Bobde questioned the complete failure of the Executive in the question of the farm laws, saying it is unprepared to understand the unconstitutionality of the laws and the need to protect 80% of the farmers from contractors and corporations. It proposed an independent committee chaired by a former CJI to “amicably resolve” the stalemate did not take off.
This committee was supposed to be chaired by a former CJI, but no name was decided. The committee was a non-starter because it had no head, and the members chosen by the CJI were not neutral either.
SIGNIFICANCE OF 11 JANUARY HEARING
The three-judge bench led by Justice Bobde underlined its “disappointment” on 11 January at how the National Democratic Alliance government was dealing with the farmers’ protest.
The Chief Justice asked Attorney General KK Venugopal and Solicitor General Tushar Mehta, who were appearing for the Centre, “We don’t want to make any stray observations against you... But we are extremely disappointed in the way you are handling this situation. You [Centre] made a law without enough consultation, resulting in a strike. Many states are up in rebellion against you... The whole thing has been going on for months... You say you are negotiating, talking... What negotiating? What talking? What is going on?”
The Attorney General was objecting to the stated intent of the Supreme Court to give an interim order against the implementation of the three laws, calling it a “drastic decision”. He said “none of the farm leaders, during the discussions, had shown a single provision in the laws which was unconstitutional”.
The CJI replied, “Mr. Attorney, sorry to say, we may be taking a decision because you, the Union of India, did not take responsibility. You were not able to solve the problem... You should have been able to solve the strike, but you did not.”
The AG then suggested the court not “hurry” to order a stay on the implementation of the new laws, but Justice Bobde said, “Mr. Attorney, we are giving a very long rope to you. Don’t give us a lecture on patience...”
During the 11 January hearing, Chief Justice Bobde appealed to senior citizens, women and children who are at the protest sites around the Capital to return home. “Tell them the Chief Justice of India wants them to go home... Whether you have faith in us or not, we are the Supreme Court of India and we will do our job,” he said.
This comment sparked off protests from women’s organisations, who criticised it as a patriarchal and unwarranted.
The most problematic part was that the court did not want to go into the constitutionality of the three farms laws at this stage. It should have taken up this question long back, when the farmers first announced their intention to go on a long agitation, or at least it should have given a timeline for hearing the issue of constitutionality.
Most experts have said that for many reasons these laws will not stand the test of constitutionality.
GOVERNMENT VERSUS RIGHT TO PROTEST
Venugopal said in court that the farmers were going to bring 2,000 tractors to “join” the Republic Day parade. Senior advocate Dushyant Dave, however, refuted this claim, saying, “Mr. Venugopal, these farmers too have members in the Army. They will do no such thing... Really don’t understand the attitude of the government.”
The AG then referred to how rioters recently ransacked a stage in Karnal, Haryana, where Haryana Chief Minister Manoharlal Khattar was to attend a pro-farm laws event. To this, Chief Justice Bobde said, “We are not saying we will protect law-breakers. Law and order are the job of the police. We will protect the right to peaceful protest like Gandhiji’s satyagraha.”
WILL MAJORITY SUPPORT FARMERS?
While the government was arguing that the “majority” in the country think the farm laws are harmless, the CJI said the thoughts of the majority would not help resolve the farmers’ strike. “We ourselves do not claim to know how to resolve every situation. We are only trying to break the tension and make the atmosphere more conducive for negotiations. We are a constitutional court...Who is going to be responsible if this sabre-rattling goes on,” he said.
The CJI warned that everybody, including the court, would be responsible if violence broke out. “Each one of us is responsible. The responsibility is on all of us, including the Supreme Court, that there will be no bloodshed. We don’t want any blood on our hands. There should be no violence. A stray incident can spark violence,” he said.
CJI’S CLARIFICATION ON STAY ORDER
To the farmers, the CJI clarified that a stay on implementation of the laws would not mean they have to call off their protest, pack up and go home. He said, “Even after we stay the implementation of the laws, you [farmers] carry on the protest. We don’t want any criticism that the court is stifling the protest.” He, however, asked whether the farmers would “move a little” from their present protest sites to convenience citizens once the talks with the committee get going.
A COMMITTEE WITHOUT BASIS
The committee appointed by the Supreme Court fizzled out as soon as it was formed. One member of the committee recused himself and the agitating farmer leaders declined to appear before it in any case. A Public Interest Litigation has been filed before the Supreme Court to remove the remaining members of this committee.
Within hours of the announcement, the biases of the four members chosen by the Supreme Court to be in the committee were exposed, both in the media and on social media platforms. This committee was expected to hear the objections, demands, grievances and complaints of the agitating farmers against the three farm laws. The media has firmly established that these four members have totally supported the laws that were hurriedly brought in to “liberate” farmers.
EXISTENTIAL CRISIS FOR FARMERS
The farm laws have created an existential challenge for small and marginal farmers all over the country. To fight against these laws, they have developed a strong agitation on the roads that lead to New Delhi.
That the farmers are continuing their peaceful protest is testing the efficacy of the judicial system and poses a challenge to the political executive. The worst part is that the government first exhibited lack of humanity when it ordered the police to attack the farmers with water cannon in two-degree cold in the National Capital Region, and after that fell silent.
Can the Supreme Court resolve an issue which the Centre has failed to address? Is the ongoing protest and stand-off a subject matter that requires judicial mediation? The apex court has tried to do so, perhaps in good faith. The court has passed an interim order suspending the implementation of the farm Acts, which were notified last September and were previously promulgated (as ordinances) in June 2020.
Suspension is no solution for the farmers who agitating for the withdrawal of these laws. The so-called negotiations are just formal strategies to buy time and appear not to be intended to arrive at a solution. Farmers’ unions have been saying that they are unwilling to withdraw their agitation until these laws are abolished, but this the government is unwilling to do.
Either the Centre does not want to accept “defeat”, or it could be under considerable pressure to continue with these enactments. In these circumstances, there is little scope for a “solution”. There appears no possibility of a middle path.
To return to the court-appointed committee, has even the Centre agreed to it? Is there any commitment from the government that its report would be accepted and implemented? Would it be legal if the Supreme Court issues a final order based on the recommendations of this committee?
The most important question is, what criterion was followed in selecting the members of this committee? The experts whom the court chose are already of a fixed mind-frame: their declared position is that the farm laws are advantageous to agriculture and beneficial to farmers.
These experts have made their positions clear through their recent writings and interviews, and in any case their stance on issues related to the new laws had been made clear over the years. It is almost impossible for such members to play a neutral role.
When the mediators have already drawn adverse conclusions on the basis of the farmers’ protest, therefore, they are in no position to convince farmers that their objections would be heard. This is the inherent defect in the committee. (It is not known whether their views were brought to the notice of the Supreme Court).
JANUARY 12: SUPREME COURT ORDERS INTERIM STAY
The Supreme Court’s interim order [of stay on implementation of the laws] basically appears to be an executive function. Is it that the court will now replace the members of its committee? How will it treat the recusal by a member and the refusal of farmers to appear before it? An order of the Supreme Court sets a legal precedent.
Besides, there is no conclusion or ruling from the court on the core issue of whether the farm laws are constitutional. There are many strong arguments against the motion.
Additionally, the Supreme Court has only dealt with the fact that protests are on and presented its views on ending the “stalemate”. Instead, it should have expedited hearings on the important constitutional questions raised by farmers through their protest.
Considering that a member has already recused himself from the committee, and farmers have declared that they would not engage with it either, it does seriously dent the authority of the court. Will the Supreme Court now try to secure compliance with its order? At any rate, the next hearing has been set for mid-March.
The author is a former Central Information Commissioner and professor of law at Bennett University. The views are personal.