STAY ON FARM LAWS - A REAL VICTORY OR A POTENTIAL DEFEAT : A REFLECTION ON THE SUPREME COURT ORDER IN Rakesh Vaishnav v. Union of India (decided on Jan 12, 2021)

                                                               Anurag Deep

                                                                                                   Professor

                                                                                        Indian Law Institute, New Delhi

1. Introduction

2. The Supreme Court Order

3. Operative Part of the Supreme court order 

4. Obiter dicta 

5. Comments

1. Was the stay extraordinary?

2. What was going on in the mind of judges? 

3. Was the Supreme court influenced by Shaheen Bagh judgement?  

4. Article 370, CAA petition : Is the Supreme court unfair

5. Will no cooperation with Committee be a Contempt of Court ? 

1. Introduction  

On Jan 11, 2021 a full bench (three judges led by Bobde, CJ) of the Supreme court warned the Government of India that they will stay the controversial farm laws. Next day they confirmed the warning and surprised many by staying a parliamentary amendment on farm laws. Following is the analysis of the order in the case of Rakesh Vaishnav v. Union of India Jan 12, 2020

2. The Supreme Court Order

Court order by full bench mentions following things-

1. There are 3 types of petition 

1. Challenging constitutional validity of amendment in 3 farm laws 

2. Supporting constitutional validity of these amendment 

3. fundamental right violation because of agitation and blockage 

2. During  agitation 

1. Vulnerable group people are exposed to fatal health hazards

2. A few deaths like farmer suicide  

3. Farmers agitations are largely peaceful but the concern is 

1. Non farmers also joined the agitation 

2. Allegedly a banned organisation like “Sikh for justice” is financing agitation.

4. Lawyers team of some agitating farmers absent on the day of order. 

5. Allegation that Jan 26, 2020 can be disrupted by proposed tractor rally was taken note of. It was declined by one lawyer. 

6. An expert body constituted to negotiate between the farmer's body and government. It may help improve trust deficit. The Attorney General agreed. Some farmers bodies also agreed for an expert body.  

7. Stay of implementation of amended laws may “assuage the hurt feelings of the farmers” and encourage them to the negotiation table. 

8. The Attorney General disagreed on the stay of laws because 

1.  He quoted 4 precedents like Bhavesh D Parish v. Union of India, (2005) 5 SCC 471, Health For Millions v. UoI 2014 (14) SCC 496 :  State of UP v. Hirendra Pal Singh 2011 (5) SCC 305 ; Siliguri Municipality v. Amalendu Das,1984 (2) SCC 436 

2. The opponents of laws did not point to any provision detrimental to farmers. 

3. There is presumption of constitutionality  

9. The Court has previously stayed executive action under the statute. The Court referred Dr. Jaishri Laxmanrao Patil v. The Chief Minister (Civil Appeal No.3123 of 2020) where the Supreme court stayed the enactment. [It provided for admissions to educational institutions for the Academic Year 2020-21 and appointments to public services and posts under the Government shall be made without reference to the reservation provided under the impugned legislation.]

10. Counsel of some farmers' bodies agreed to stay the law. Others bodies disagreed. One reason for disagreement on stay was that any stay on law means “21 million tonnes of fruits and vegetables will rot.” [why so, not understandable]. 

11. The Court considered the argument that 

1. Minimum Support Price is not “being done away with. The same may not be dismantled.” 

2. There are inherent safeguards, in-built in the Farm Laws, for the protection of the land of the farmers and 

3. it will be ensured that no farmer will lose his land

III. Operative Part of the Supreme court order 

The Court passed following orders -

1. The implementation of the three farm laws remain stayed till further orders-

1. Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Act, 2020; 

2. Essential Commodities (Amendment) Act, 2020; and 

3. Farmers (Empowerment and Protection) Agreement on Price Assurance and

4. Farm Services Act, 2020

2. Consequently, the earlier situation is restored-

1. The Minimum Support Price System in existence before the enactment of the Farm Laws shall be maintained 

2. The farmers’ land holdings shall be protected, i.e., no farmer shall be dispossessed or deprived of his title as a result of any action taken under the Farm Laws. 

3. An Expert Committee is being constituted comprising of 

1. Shri Bhupinder Singh Mann, National President, Bhartiya Kisan Union and All India Kisan Coordination Committee; 

2. Dr. Parmod Kumar Joshi, Agricultural Economist, Director for South Asia, International Food Policy Research Institute; 

3. Shri Ashok Gulati, Agricultural Economist and Former Chairman of the Commission for Agricultural Costs and Prices; and 

4. Shri Anil Ghanwat, President, Shetkari Sanghatana, 

4. Direction to and Mandate of the Supreme Court Constituted Expert Committee on Farm Laws Amendments, 2020  

1. The first sitting shall be held within ten days from today, ie Jan 22, 2021. 

2. It will listen to 

1. the grievances of the farmers relating to the farm laws 

2. the views of the Government and 

3. other stakeholders 

  c.It will make recommendations to the Supreme    court. 

4.  within two months of the first sitting ie latest by March 22, 2021.  

5. Direction to government for the Committee 

1. This Committee shall be provided a place as well as Secretarial assistance at Delhi by the Government. 

2. All expenses for the Committee to hold sittings at Delhi or anywhere else shall be borne by the Central Government. 

3. The representatives of all the farmers’ bodies, whether they are holding a protest or not and whether they support or oppose the laws shall participate in the deliberations of the Committee and put forth their view points. 

6. Next hearing after eight weeks, ie after Feb 10, 2021.  

IV. Obiter dicta 

The Supreme court has made certain expectations which are not binding like operative part as mentioned above. The expectations which are persuasive in nature are as under: 

1. The Supreme court hoped and expected “that both parties will take this [stay order and setting up of an expert committee] in the right spirit and attempt to arrive at a fair, equitable and just solution.” 

2. A peaceful protest cannot be stifled. However This stay order is extraordinary in nature. 

3. Such stay order should be “perceived as an achievement” for protestors and supporters for now. The farmers' bodies should convince their members to get back to their livelihood. This will protect their own lives and health and also protect the lives of others and properties.  

V. Comments

1. Was the stay extraordinary? 

It was surprising that the Farm laws were stayed. The Supreme court also expressed that the order is “extraordinary”. The stay was unexpected because 

1. The Supreme court refused to entertain the petition in October, 2020 and asked a petitioner to approach the High court. A central law having all India impact and potential opposition in various states should have been heard under article 32 to reduce multiplicity of proceedings in various courts. It was not correct to ask the petitioner to approach under article 226 in this case.    

2. Later on the Supreme court entertained the petition but did not accept the prayer of staying the farm laws. 

3. There were a few hearings in 2020 and the Court did not express its desire to stay it. The agitation took momentum. The talks between government and farmers bodies started. There was news of some breakthrough but the protest continued. The Supreme court thought that it should intervene. 

2. What was going on in the mind of judges? 

1. There was news that the celebration of January 26, 2021 may be used for the purpose of farmer agitation to press demand and to attract international media. There is already a declaration of tractor rally. Last year the visit of the President of the USA, Donald Trump in India in Feb, 2020 was used to protest the demand to repeal the Citizenship Amendment Act, 2019. Unfortunately the protest went out of hand. There were instances of provocative speeches, seditious expressions. Disorder ensued, followed by violence which led to serious Hindu Muslim riots. 53 persons were killed including government officials besides life changing injuries to hundreds of persons and loss of property. It seems the Court was little worried that the mass agitation against farm laws may turn into a more unpleasant situation.  

2. In the farm agitation, there were a few disturbing news and incidents referred by the Supreme court, like alleged involvement of banned organisations (here Sikh for Justice who is agitating for Khalistan) for unlawful, terrorist and secessionist activities. Such organisations use these situations as breeding grounds to gain sympathy for the sufferings of farmers, agitators. They hunt young people for radicalisation. Such radicalised youth are used by terrorist organisations, foreign players to work against territorial integrity of the country or disturbing harmony among Indian citizens.  

3. There are eyebrows raised on the stay order. Is the Supreme court encouraging the agitation, protest, blockage etc which is conducted without permission of the government? Is the stay order a prize to the agitators who brought great inconvenience to daily commuters on the road? Or is it the prize for the sacrifice made by the protestors because they left their convenience of home, faced cold waves, slept in tents in winters. Was the Court concerned for the agitators many of whom were from vulnerable groups like senior citizens, women and even children?  

4. The answer may also be traced in a passage from Bandhua Mukti Morcha v. Union of India which  may suggest possible reason for the intervention of the Supreme court which is as under : 

When  the Court  entertains  public  interest litigation, it does not do so in a cavilling spirit or in a confrontational mood  or with a view to tilting at executive authority or  seeking to  usurp it, but its attempt is only to  ensure   observance  of   social  and   economic  rescue programmes, legislative as well as executive, framed for the benefit of  the have-nots and the handicapped and to protect them against violation of their basic human rights, which is also the  constitutional obligation  of the  executive. The Court is  thus merely  assisting in  the realisation  of the constitutional objectives.

 

There is no doubt that the Court stayed the farm laws with the pious objective to find a common ground. 

3. Was the Supreme court influenced by Shaheen Bagh judgement?  

When the CAA protest in Shaheen bagh was going on in winters of 2020, the Supreme court intervened. During the hearing of the case of Shaheen Bagh (Amit Sahni v. Commissioner of Police) two interlocutors were appointed, Mr. Sanjay R.Hegde and Mrs. Sadhana Ramachandran. They tried to persuade the protestors but in vain. The Supreme court provided a different ground for such extraordinary approach of appointment of interlocutor which is as under: 

fundamental right, be it of an individual or of a class, does not exist in isolation and has to be balanced with every other contrasting right. It was in this respect, that in this case, an attempt was made by us to reach a solution where the rights of protestors were to be balanced with that of commuters. 

In the Shaheen Bagh case the Supreme court appointed committee could not convince the protestors. There was “no constructive outcome”. Later on due to “hand of god” ie CoVID19 the protest was discontinued. Ultimately the Supreme court also decided that the protestors have no fundamental right under article 19 to agitate at public place. The right to dissent and demonstration is limited by designated place else it "would only lead to a chaotic situation". The Supreme court through Sanjay Kishan Kaul, J. observed as under : 

What must be kept in mind, however, is that the erstwhile mode and manner of dissent against colonial rule cannot be equated with dissent in a self- ruled democracy. Our Constitutional scheme comes with the right to protest and express dissent, but with an obligation towards certain duties. 

The extraordinary approach of the Supreme court to intervene had “rights” as justification in Bandhua Mukti Morcha (1984) while in the case of Shaheen Bagh, (2020) it was “duty” as justification. The Court further propounded that :

we have to make it unequivocally clear that public ways and public spaces cannot be occupied in such a manner and that too indefinitely. Democracy and dissent go hand in hand, but then the demonstrations expressing dissent have to be in designated places alone. 

This was a message to all protestors of the future. In Farm Law case the protestors are blocking public ways and have occupied public spaces. While in Shaheen Bagh the protest was limited to a place, in the Kisan agitation the protest is at many places in and outside Delhi. The obiter remarks in Rakesh Vaishnav has clear message for protestors also. If the protest continues in the same manner the Supreme court will follow the precedent of Shaheen Bagh pronouncement. The Shaheen Bagh (Amit Sahni v. Delhi) laid down the law as under: 

We have, thus, no hesitation in concluding that such kind of occupation of public ways, whether at the site in question or anywhere else for protests is not acceptable and the administration ought to take action to keep the areas clear of encroachments or obstructions.

 The Kisan and their supporters will be given a designated place to raise their voice and continue their protest so that other citizen, like commuters can move freely. The profession, occupation, trade and business is trying to rejuvenate after the “hand of god” (covid19) which was beyond control. The mass protest for months must be an additional burden on those affected by such protest which is indeed man made tragedy and not beyond control. Shaheen Bagh judgement has expected the future course of action for the government and for the judiciary as under: 

We only hope that such a situation does not arise in the future and protests are subject to the legal position as enunciated above, with some sympathy and dialogue, but are not permitted to get out of hand.

4. Article 370, CAA petition : Is the Supreme court unfair

The Supreme court in Rakesh Vaishnav case, has stayed the implementation of farm amendment laws of 2020. It raises a question of the standard of judicial review and discriminatory judicial process applied in various cases. Why did not the Court demonstrate similar concern in other petitions like those dealing with article 370, CAA etc. and stay other laws. Was it because the Court was trying to favour the central government as argued by a few experts? A line of reasoning is that the judges want to favour the government because they are  rewarded by the government when they retire. Sweeping generalisations have been made by such arguments and motives have been attributed. The integrity of judges are questioned that they want post retirement benefits. Even in Rakesh Vaishnav case the impartiality of the Committee has been doubted by some scholars, experts and politicians because the experts have written in favour of Farm Laws. Writing for media on farm laws and submitting an expert report to the Supreme court are two different things. If the rule of natural justice is extended to this level, it will be almost impossible to govern. In the Shaheen Bagh case the interlocutors were known for their open support to the protesters of CAA. But the Court has given the responsibility to them and appreciated their endeavour. The rule of law cannot survive if doubts are raised on the democratic institutions on the drop of a hat. If the composition of the committee really matters, it can be requested to the Court and the Court will definitely look into the matter. Coming to the issue of judicial treatment of article 370, CAA it is necessary to understand the jurisprudential aspects of judicial review. The petition dealing with article 370 and CAA are directly and proximately connected to the sovereign jurisdiction of the Parliament to address the matters of national security (article 370) and foreign policy (CAA)? The matter of farm laws are distinct from other petitions like reorganisation of Jammu and Kashmir or CAA. Farm laws will face strict scrutiny of judicial review as it is more a matter of fundamental right than that of mere government  policy. On the other hand the petitions on JK, CAA are more a matter of government policy and less a matter of fundamental right. The petitions on JK, CAA will follow deferential review (not strict scrutiny) where the Parliament and the Government are given more leeway and deference than in pure fundamental right cases. Separation of power is more active and relevant in these cases which are matters of sovereign jurisdiction.  

5. Will no cooperation with Committee be Contempt of Court ? 

The Supreme court order also says that it is mandatory for the parties to participate in the interaction with the Expert Committee. Can an order of the Supreme court compel a body (under no legal obligation) to participate? Does it mean denial to talk will amount to contempt of court? The answer seems yes. 

The Supreme court has expressed that the stay will help farmers’ bodies to come to the negotiation table.  The farmers came for every round of negotiation and talks. Then why this expectation? The stand of the farmer's body is determined rather adamant. They want laws to be repealed only. The government has demonstrated their will to amend laws. The message for farmers seems to be to relax their approach and be lenient in demand. The unexpected step of staying three amendments in farm laws has a message for the government also that they ought to be more active in resolving disputes. Both parties have competing claims.  Hope the preambular mandate of justice, social, economic and political will be served.