Overview
Supreme Court on 12th January 2021 gave an 11-page
order in the case of Rakesh Vaishnav v. Union of India. The order was
pronounced by 3- judge bench comprising of Chief Justice of India (CJI) S.A.
Bobde, Jts A.S. Bopanna and Jts. V. Ramasubramanian.
Supreme Court said that there were 3 types of petitions
filed in this matter, 1) which challenged the constitutionality of the laws, 2)
which supported the laws and 3) which wanted to stop the agitation. Though it
is quite surprising that petition was filed to support the farm laws because I personally
believe that if a person is in support of any law there is no need to approach the
Supreme Court.
The Supreme Court has said that they were very disappointed
with the manner in which the centre has handled the farm laws and also that these
laws were made without enough consultation. The court went on to say that we do
not want anybody’s blood on our hands and wanted to bring amicable resolution
to the problem.
The court has ensured the farmers that MSP will not be dismantled
and will sustain until further orders. Also, the landholding of farmers will be
protected and no farmer shall be dispossessed or deprive of his title under
farm laws until further orders. Though it was not prayed by the
petitioners.
The SC has put temporary stay over the farm laws and
formulated a 4-member committee who is supposed to express their opinion and
views over the implementation of the farm bill. They are directed to submit
their report within the time of 2 months. The representative of the farmer's
body in favour or against the laws shall participate in the deliberation of the
committee.
Members of the committee are as follow:-
1. Mr Bhupinder Singh Mann, National President of
Bhartiya Kisan and All India Kisan Coordination Committee,
2. Dr Parmod Kumar Joshi, Agricultural economist, International
Food Policy Research Institute,
3. Mr Ashok Gulati, Agricultural economist, former Chairman
of Commission of Agricultural Cost and Prices,
4. Mr. Anil Ghanwat, President of Shetkar
Sanghatana
Problem with the order
1. When the court has to form an opinion over the subject matter of any foreign law, science, art, handwriting, finger impression etc. Then in such cases court has the right to take the evidence of respective experts of their field. But here, the matter before the Supreme Court is not that, whether the laws are bad or good. The only duty of the Supreme Court is to check the constitutionality of the farm laws. And to check the constitutionality of the law Supreme Court does not require any expert opinion because the judges themselves are the great experts of the law.
Supreme Court has the power to appoint a committee, like Lokur committee in case of stubble burning or the Lodha committee in the matter of BCCI. But over here the committee’s report will not be of much help in deciding the constitutionality of the farm laws.
2. The court has used the word ‘shall’ for participation
in deliberation which makes it mandatory to give a statement before the
committee. It is surprising because the committee can compel the
representatives to give their statements even if they do not want to. As farmers
are not even a party in this matter presented before the Court and the farmers did
not even went to the SC. But the court is compelling the farmers to give their
statement before the committee. This mandate is deeply problematic.
3. The 4-member committee formulated by the court does not seem to be independent because all these 4 members already have their opinion in favour of these farm laws which are present in the public domain in the form of articles written, letters written to the union agriculture minister or any statement given by them. All the members are in favour of market favour reforms. Their ideological leaning is towards the farm bills made by the government.
I personally believe when such expert opinion is to be taken, the members need to be independent.
But here it looks like as if the position of the committee is already settled. And
it is most probable that the recommendations of the committee will be in favour
of the farm laws.
4. As discussed in the last blog that the central
government does not have the right to make laws in the matter of agricultural
as exclusive power is given to the state. The Supreme Court ought to have put a
stay on the farm laws on the grounds that prima facie there is the possibility
of the farm laws being unconstitutional and not on the ground to stop the
protest or to provide breathing time.
Other problems
1. Supreme Court ought to have considered that, whether
the farm laws are constitutional or not. Without even considering the
constitutionality of the farm laws (prima facie) Supreme Court put a stay over it.
There has to be reason attached to the order while putting the stay over any
law. But here the Supreme Court has not even provided any prima facie findings
over the constitutionality. Supreme Court stayed the farm laws on the grounds to stop
the violence. As per the experts it is not the duty of the judiciary to prevent violence. It is the
duty of the police and the administration to prevent violence. The only duty of the judiciary is to check the constitutionality of the farm laws.
2. Instead of deciding the issue that whether the
farm laws are constitutional or not, Supreme Court is deciding over the policy
matter of the executive (government) while promising the MSP to the farmers and
that farmer holdings shall be protected until further orders. Whether MSP shall
be provided or not is a complete policy matter of the government. There is broad separation of
power in the Indian Constitution and one organ shall not encroach upon the power
of another organ. And to sustain the MSP or to protect farmers holdings were
not even in the prayer of the petitioners.
3. The Supreme Court suggested the woman in the
protest to go home considering the harsh winters. To which the women said that they
are also an equal citizen. They question that does Chief Justice of India
consider woman weak? Women said that they also have the right to protest against
these farm law as much as men have.
4. The Supreme Court should have kept themselves
confined to the matter that whether the farm laws are constitutional or not. In
the matter of deciding the constitutionality of the laws, the court went on to discuss
over the Khalistan and terrorism support report or saying that we don’t want
anybody’s blood on our hand or saying that woman and senior citizen shall go
home to prevent themselves from extreme winters of Delhi etc. All these
statements had no relevance to the case. This sets an example of judicial adventurism
or judicial overreach as per the experts.
One of the members recuses from Supreme Court formed a committee.
Mr Bhupinder Singh Mann withdraws his name from the
committee on the ground to not to compromise the interest of Punjab and farmers
of the country. He said that he wanted to remain impartial to the public sentiment
in connection to the farmer’s ongoing protest.
Observations
It is important to know the role of
the select committee or parliamentary committee before passing any bill. The
purpose of such a committee is not to weaken or criticise the administration
but to strengthen it by investing it with more meaningful legislative support. Members
of the committee have domain expertise to the subject matter. The committee
examines the policy issue and provides an opinion to the government. Gives an
opportunity to the general public to express their opinion who are interested
in the measure.
When there is a law that is
affecting 60% of the Indian population (around 80 crore people) directly, it
becomes important for the government to make such law with a lot of care and precaution
and after deep consultation with the experts and stakeholder (people to whom it will affect) in order to make the law as much error-free as possible.
But on the other hand, what we saw was that how the government was in a hurry to pass this bill without taking any
recommendation from the parliamentary committees or without proper discussion
and debate in the house as well. And in Rajya Sabha violating the
rules of the voice vote, the bills were passed. This hurry in passing the farm bills
brings a suspicion over the legislative intent.
Also read - Are New Farm Bills a ‘Death Warrant’ for Farmers?
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