In one of its rare outbursts against the Government in recent times, a Supreme Court bench, headed by Chief Justice S A Bobde, questioned the process behind the enactment of the farm laws and expressed deep “disappointment” over the Centre’s handling of the farm protests.
Scheduling its order for today, the court indicated that it could even stay the implementation of the new farm laws to ostensibly “facilitate” a solution.
CJI Bobde minced few words: “We do not think the Centre is handling the issue correctly. We don’t think you are being effective.”
Suggesting that the court would appoint a committee that “will tell us if the laws are in public interest,” CJI Bobde said: “We propose to form a committee and if the government does not, then we will stay the implementation of the farm Acts…We are doing this because you have failed to solve the problem. We are proposing to pass this order to facilitate resolution of this problem by a committee chosen by us…We will make the atmosphere comfortable and conducive for talks. Till then the farm laws can be put on hold…If laws are put on hold then negotiations will have a chance to work out.”
As the court was about to rise for the day, Solicitor General Tushar Mehta told the bench, also comprising Justices A S Bopanna and V Ramasubramanian, that the court made “harsh observations” to which the CJI said: “That was the most innocuous factual thing for us to say.”
The court’s remarks come after the latest round of talks between the protesters and the government on January 8 failed to make any headway and unions claimed they had been asked by the government to go to court, a move, they said, they were opposed to.
“What consultative process has been followed for farm bills that entire states are up in rebellion?” asked CJI Bobde. “We are sorry to say that you, as the Union of India, are not able to solve the problem. You have made a law without enough consultation resulting in a strike. Now you have to resolve the strike”.
The court said it is concerned about any likely disruption of peace. “Who is going to be responsible for bloodshed? We need to uphold Article 21 (protection of life and liberty) as a Constitutional court. What if some conflagration takes place?” asked the CJI.
As the hearing wound to a close, the bench said it may pass orders Monday or Tuesday. When Attorney General K K Venugopal urged the court not to be in a hurry and keep the orders for Tuesday, the bench shot back: “Why not? We have given you a very long rope. Don’t lecture us on patience. We will decide when to pass the order. “
The bench was hearing a clutch of petitions challenging the validity of the three laws: Farmers’’ (Empowerment and Protection) Agreement on Price Assurance and Farm Services Act, 2020; Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Act, 2020 and The Essential Commodities (Amendment) Act, 2020.
Venugopal opposed the court’s suggestion to stay the laws saying that would be “drastic”. He pointed out that a law cannot be stayed by the courts unless it is beyond the competence of the legislature or violated fundamental rights or is against any constitutional provision. He pointed out that none of the petitioners has argued this and, on the contrary, many support the laws. The CJI clarified that the bench was not declaring the laws unconstitutional.
On the consultative mechanism, the AG said the process had started during the term of the previous government. But the court said: “Please understand it will not help you that some other government started it”.
Venugopal pointed out that farmers’ unions were insistent that unless the laws were repealed, their protests would continue. The bench responded saying it was not getting into the question of repeal.
“Our intention is to see if we can bring about an amicable resolution to the problem. That is why we asked you why don’t you put the law on hold…Then we can form a committee with Indian Council for Agricultural Research members…”, said the CJI.
When the CJI wondered whether the government is “part of problem or solution,” Solicitor General Mehta replied that “we are part of solution” and added that many farm unions had said the laws are progressive and “that we should not give in”.
But the bench said there was no petition before it which said the law was beneficial and added that those who feel the laws are progressive could say so before the committee.
The CJI pointed out that before the New Year recess, the court had asked the government whether it could put the laws on hold but there had been no response.
“People are committing suicide. People are suffering in the cold. Who is taking care of water and food? Old people and women are in the ground. Why are old people in the farmer protests?” the CJI asked and added that the court did not want to comment on the agitation.
With the AG opposing staying of the laws, the CJI wondered if the court can stay the implementation of the law without staying the law. The AG said this was one and the same.
“Staying a law and staying the implementation of a law is different. We can always stay an executive action under a law”, said the CJI.
Senior Advocate Harish Salve, who is appearing for a Delhi resident who has highlighted difficulties caused to citizens by the protests, said there must be an assurance that farmers will not turn their back if the laws are put on hold.
“We are not having a last hearing. They will appear before the committee”, the court said adding that senior Advocate Dushyant Dave had said so.
Intervening, Dave said there are 400 organisations and he would need to seek instructions on appearing before the committee. The CJI wondered why farmers’ associations which appeared before the government couldn’t appear before the committee.
Senior Advocate Colin Gonsalves, appearing for some of the farmers’ unions said he, Dave, Advocate Prashant Bhushan and Senior Advocate H S Phoolka, were part of a committee constituted by the farmers. “All of us will consult unions and take a stand on this”.
Venugopal said talks with a (court-appointed) committee may not yield a result if farmers’ unions reiterate their repeal-and-nothing-else demand. “They need to give suggestions clause by clause if it’s not in their interest”.
The SC said it trusts lawyers like Dave, Phoolka, Gonsalves and Bhushan to convey to the farmers the purpose of the committee.
The CJI said that the protests can go on and the court does not want anyone to say it stifled the agitation but once the laws are stayed, it needs to be seen if the protestors can be removed from the present site. “Frankly, we have an apprehension that there will be some incident, whether intended or unintended, that may breach the peace.”
The bench said that the “responsibility is on all of us….As a court we will not say you cannot protest. But we can say it is not the only place to protest”.
The AG referred to reports about the proposed tractor rally in Delhi and said about 2,000 tractors will be driven to Rajpath to disrupt the Republic Day ceremony.
Dave assured that nothing of that sort would happen. He told the court that farmers have said they have relatives in the Army and they respect Republic Day.
Welcoming the statement on the Republic Day march, the CJI said the police would take care of such issues. The right to protest is intact, he said, adding that protests should be like Gandhiji’s Satyagraha.
Senior Advocate P S Narasimha, appearing for the Indian Kisan Union, said that many organizations believe the laws are beneficial and urged the court to hear him before any interim order is granted.
Dave wondered why the government couldn’t call a joint session of Parliament and debate the matter.
Senior Advocate Vivek Tankha, representing some farmers unions from Madhya Pradesh, welcomed the court’s suggestion to stay the laws.
Phoolka said some of those who were caught from the protest site had said they were set up by police.
“I want to take a risk. I want you to tell them that the Chief Justice of India wants them (old people) to go back. Try and persuade them”, said the CJI.
The CJI also sought suggestions on names of former judges who can head the proposed committee. Dave suggested former CJI Justice R M Lodha’s name. CJI Bobde said he had already spoken to his predecessor Justice P Sathasivam who had expressed his inability citing his difficulty in understanding Hindi.