View: Are agitations turning SC into a policymaker?


Granted, the NDA government’s new farms laws may have irked a large section of agriculturists, especially in the northern states of Punjab and Haryana, but, as those who take a macro perspective have argued, there is a clear rationale behind the government thinking while formulating and enacting the legislation which was approved by Parliament.

At a macro-level, it makes little or no economic sense if farmers keep cultivating only wheat and rice and insist on an MSP when there is a surplus to the tune of millions of tonnes of foodgrains in the godowns of the Food Corporation of India

At a micro-level, as Gurcharan Das has pointed out in a editorial-page article “Don’t Kill the 2nd Green Revolution” in the December 2 edition of The Times of India, the new laws offer individual farmers the liberty to sell anywhere and not just to a monopoly cartel at the APMC mandi, the freedom to store their produce, and the option to take forward contracts which transfer the risk to businessmen.

Behind the agitation, Das adds, are both the arthiyas (buying agents in APMC mandis who stand to lose Rs 1,500 crore a year by way of commissions) and Punjab’s affluent farmers who are part of that six percent of India’s agriculturists who benefit from the MSP (minimum support price) regime. The arthiyas, Das says, fund political parties and often double up as politicians and farm-union leaders.

Granted, it would have been wiser for the government to have involved all the stakeholders, including the opposition political parties, in the process. The more the consultation, the greater the acceptability to laws passed in Parliament or in the state assemblies. Granted, the government’s initial response to the protesting farmers in the first week of December was crude and ham-handed to the extent where the “Dilli-chalo” rallies were subjected to tear-gas, lathi-charges and water-cannons at the height of a freezing winter.

However, should the Supreme Court now be saying, as the national news-channels and online media are quoting it as saying to the government, “Tell us whether you will put these farm laws on hold or else we will do it”. The Supreme Court has the power to stay laws but should it override both the government of the day which is responsible for formulating economic policies and Parliament which approves these policies and enacts them into law?

By talking of setting up another committee of agricultural experts to review the new farm laws, is the Supreme Court entering the policy-making domain? Is the Supreme Court saying that the national government did not consult agricultural experts when it formulated the new farm laws and that the elected members of Parliament did not notice this lacuna when they approved the bills and enacted them? Wouldn’t the talk of setting up another committee be tantamount to saying that it is the Supreme Court and neither the elected national government nor Parliament which will make and unmake economic policies?

The question could also be asked why the Supreme Court, which is now urging the government to “Tell us whether you will put put farm laws on hold or else we will do it”, did not intervene when the fundamental rights of the people were being trampled on during the 19-month Emergency imposed by the Indira Gandhi government from June 25, 1975. In her book on “The Emergency”, the veteran journalist Coomi Kapoor narrates how thousands of individuals were arrested all over the country, and cites the specific instance of her journalist husband being thrown into jail for remonstrating when Youth Congress activists beat up a teenager for shouting anti-Emergency sloans during a civic reception at the Red Fort for foreign delegates attending the Commonwealth Parliamentary Conference on November 1, 1975.

On April 28, 1976, in a 4-1 verdict, the Supreme Court dismissed the habeas corpus petitions of Emergency detenus even when 9 of the country’s High Courts had struck down the Indira Gandhi government’s MISA (Maintenance of Internal Security) orders as ultra vires the Constitution. These 9 High Courts had held that, under Article 21 of the Constitution, no person could be deprived of life or liberty, except according to due process of law, which included the right to petition the courts. The government had then appealed to the Supreme Court.

During the Supreme Court hearing, the dissenting judge H R Khanna had, while maintaining the supremacy of Article 21 of the Constitution, asked the then Attorney General Nitin De whether there would be any judicial remedy if a police official killed someone out of personal enmity. The AG’s shocking response was that “There would be no judicial remedy in such a case as long as the Emergency lasted. It may shock your conscience, it shocks mine, but consistently, with my submissions, no proceedings can be taken in a court of law on that score.”

In his dissenting judgment, Justice Khana had quoted from what Wolfgang Friedman had written in his treatise on “Law in a Changing Society”: “In a purely formal sense, any system of norm based on a hierarchy of orders, even the organized mass murders of the Nazi regime, qualify as law.” Coomi Kapoor describes the Supreme Court’s dismissal of the Emergency detenus’ habeas corpus petitions as “one of the darkest chapters in the history of the country as it struck at the heart of fundamental rights”.

Granted, the ongoing 47-day-old farmers’ agitation is being held at the height of the coronavirus pandemic where India is second (after the USA) in the number of cases (10,466,595) and third (after the USA and Brazil) in the number of deaths (151,160).

Granted, there are concerns about the spread of the virus since there is no social distancing during the ongoing farmers’ agitation where telecasts have shown that many of the protesters are not even wearing masks. Granted protesters have a right to peacefully protest. But can an agitation be considered peaceful when the national highways to and from the capital are blocked by the protesters and when many telecom towers in Punjab are forcibly dismantled and the wires deliberately cut, with the target being a particular company?

Can protesting kisans in one state or region decide that a law giving farmers the option to sell outside the APMC mandi should not be implemented anywhere else in the country? In any case, the Congress government in Punjab has made it clear that the new farm laws will not be implemented within the state. Some other state governments have followed suit.

In a country with a population of over 138 crore people, the intensity of an agitation in one state or region should not be interpreted as the will of the people throughout the nation. The will of the people of the country is determined through periodic national elections and not on the basis of a state or region-wide agitation where highways are forcibly blocked and telecommunications deliberately disrupted. The intensity of any such agitation need not, therefore, determine the administrative or judicial response.

There will never be any reform in the country if it is the agitation which determines the administrative or judicial response.





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