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Monday, August 02, 2021

Farmers have a case

The protesters are right to demand repeal of farm laws — the central laws violate the spirit of federalism in the Constitution and apex court directives.

New Delhi |
Updated: December 29, 2020 10:08:23 pm
Farmer unions agree to return to table: Next round of talks TuesdayThe farmers are right to make the maximalist demand that the laws be repealed.

Written by Kabeer Shrivastava

An editorial in this newspaper (‘A Narrow Window’, IE, December 19) suggests that the farmers and the government should accept a Supreme Court appointed committee of stakeholders to break the impasse on the farm laws. It further argues that the farmers’ demand of “repeal-or-nothing-else isn’t the most effective way to address their apprehensions”. I disagree with both the arguments.

The Supreme Court is not expected to, and indeed should not, veer into legislative or executive domain, which is what the Court would end up doing by lending its judicial heft behind a committee that should have been formed at the legislative branch. As it is, there is no novelty in the suggestion for this committee. About two weeks ago, the government itself had suggested its formation and the farmers rejected it. For the Court to make that suggestion again would unjustly bolster the government’s bargaining power, and given the high stakes, the Court should not unfairly tilt the bargaining scales.

The farmers are right to make the maximalist demand that the laws be repealed. Their argument flows from the Constitution: The Seventh Schedule delineates legislative powers between the states and the Union. Agriculture is in the State List. Therefore, it was not right for Parliament to pass the laws in the first place. The government’s argument that they’re using powers under Entry 33 of Concurrent List (joint legislative list of the states and Union) by regulating the trade of foodstuff and not agriculture per se doesn’t pass muster of the pith and substance rule of constitutional law under which courts may condone incidental encroachments of one list item over the other. In this case, eight entries in the States List relate to agriculture and its allied fields (Entries 14, 18, 28, 30, 45, 46, 47 and 48) and none of them are subject to any entry in the Union or Concurrent List. Therefore, the farmers are right to demand a complete repeal because accepting an amendment would be to accept Union’s primary jurisdiction on agriculture, which it does not have.

Since the laws came into force, several petitions have been filed in the Supreme Court challenging their validity. While those are pending, the Court has taken up administrative law petitions in respect of the site and manner of the protests themselves, which are merely an expression of vast swaths of people feeling that the laws are unjust. While there are several bodies more trained to regulate such administrative matters, it is only the Supreme Court or the high courts that can adjudicate whether a law meets the constitutional muster, and, as a natural corollary, is a just law.

There is a presumption of constitutionality of laws duly passed by Parliament. But our framework mandates our constitutional courts to strike down egregious digressions, especially if they violate the basic structure of the Constitution as these laws do by assailing the federal structure of 7th Schedule (SR Bommai v/s Union of India 1994 SCC (3) 1 where the Supreme Court held that federal structure is a branch of the Basic Structure of the Constitution; Kesavananda Bharati v/s State of Kerala 1983 (4) SCC 225) or if the laws violate fundamental rights contained in Part III, which no legislation, whether state or Union, can impinge. The farmers fear that the application of contract farming could make them slaves in their own fields, which would go against the letter and spirit of Article 23 of the Constitution that prevents forced labour.

The assumption of constitutionality of these laws is further muddied by the fact that the Rajya Sabha passed the laws with a voice vote when members of the Opposition sought a division of votes as the ruling party might not have had the sufficient numbers. While courts do not go into the legality of proceedings inside legislative chambers, it was for the court of the citizens to see how the laws were rammed through. More than one state has refused to implement the three laws; two states have passed resolutions in their state legislature to that effect. A constitutional crisis is staring the country in the face — only our constitutional courts can avert it by taking up the petitions challenging the validity of the laws.

It is uncharitable of us to lecture the farmers to accept the terms of a government dispensation that doesn’t consult them on draft laws, ignores their protests on railway tracks, then when they want to enter their own capital, refuse entry.

The right way to break the impasse would be for the government (as the one on a higher vantage point) to legislate those farmers’ demands that they’ve already conceded to, such as the continuation of MSP, imposing a tax on the newly envisaged private mandis as the existing APMCs. To ask the farmers to blink first is unconscionable.

(The writer is an advocate)

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