Forgotten about the farmers’ protest? Here’s why and how the Supreme Court of India stayed the farm laws

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What are the 3 laws about? – Legislative Intent

First and foremost, let us analyze the three farm laws in a very brief manner.

1. Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Act, 2020: This act allows farmers to sell their farm produce outside the Agriculture Produce Market Committees (APMC). Farmers can sell their crops for mutually agreed prices to license holder buyers, cancelling the middlemen between farmers and consumers, thus eliminating the concept of Minimum Support Price (MSP). This way, the farmers can negotiate for a better deal and the consumers also can get the produce at a cheaper value as the crops would be free of APMC Mandi taxes that are imposed by the State Governments.

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2. Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Act, 2020: This act allows farmers to do contract farming and market their products at their liberty. Farmers can set up a contract before rearing or farming. By allowing them to trade freely without any license or stock limit, the competition among the buyers will increase, setting better prices for farmers. Also, the selling process will be much faster, so half of the crops won’t perish on the way to the market and consumers would get fresher products.

3. Essential Commodities (Amendment) Act, 2020: The amendment to this act, frees various items like pulses, edible oils, onions, potatoes, and other food grains, from the subsidy to keep them at fair price except in extraordinary situations or crises. At present, it contains seven ‘essential’ commodities: drugs, fertilizers (inorganic, organic, or mixed), foodstuffs including edible oils, hank yarn (made wholly from cotton), petroleum and petroleum products, raw jute and jute textiles, seeds of food-crops and seeds of fruits and vegetables, seeds of cattle fodder, jute seed, cottonseed.

Why are there such widespread protests against these laws?

One of the biggest reasons for the protest was the abolition of the Minimum Support Prices. The very thing that protected the farmers to date was suddenly eliminated, so it put them into unrest. There is hesitation among the farmers whether allowing outside- APMC trade of farm produce would lead to lesser buying by the government agencies in the approved ‘mandis.’

Farmers will even be unprotected from the risk of fraud due to the entry of buyers without registration or license. Also, the fact remains that the farmers will always fear losing their land and becoming “slaves” to the corporates and in cases of disputes in the business, the corporate buyers might ignore the interests of farmers. So, at times, the farmers will be forced to sell their crops to corporate companies at a lesser price.

Supreme Court’s stay on the laws

Forgotten about the farmers’ protest

On the background of an ongoing protest agitation by the farmers near the Delhi border, on 11th January, Supreme Court passed a judgment to stay the three Farm Laws, based on an appeal by a farmer’s union. A new committee has been set up to review the legislation which has recently released its report.

The reason which caused the Supreme Court to ‘suspend’ the Farm Laws and to review the same seems to be raising questions. Before going into the jurisdiction of the Apex court, let us analyze the reasoning put forth by the Supreme Court at the time of staying the laws.

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The Supreme Court observed that the negotiations between the Government and farmer’s bodies have not yielded any result, and hence the Supreme Court constituted a committee, consisting of experts from the field of agriculture, to improve the trust of the farmers. The three Farm Laws have stayed for the time being which might ‘assuage the hurt feelings of the farmers’ which will bring them back to the negotiating terms in good faith.

When can an Act stay?

The Advocate General in his submission argued that the Court cannot stay legislation passed in the Parliament. However, there are occasions when courts can interfere with executive actions. An act that is passed by the parliament can be stayed by the Supreme Court if the laws are unconstitutional, lack legislative competence, are illegal or if there was any illegality in the passage (procedural limitations). The Court can also interfere, had the laws violated the farmers’ fundamental rights. Further, the Court can interfere if any incident goes against the national interest.

Forgotten about the farmers’ protest

Did the Parliament have the legislative competence to pass the said bill or is there an element of illegality?

In this context Article 245 and 246 are of importance. It envisages the three lists, namely: Union list, State list and the concurrent list. According to these lists, it can be ascertained that the parliament does not have the power to enact laws on agriculture except under entry 41 which talks about agricultural land pertaining to evacuee property.

Agriculture is also mentioned in the State List, entry 14. If we take into account Article 249 that lets the parliament legislate on matters of the State List if it’s of national interest, winning the same needs a majority of two/third members present. However, these laws were passed by a voice vote even though the opposition MPs asked for recorded votes.

If we consider entry 33 under the concurrent list of the 7th schedule, which gives away most of the power to the Centre including the agricultural sector, then we must also note the fact that ‘Market and Fairs’ is entirely in the State List and only the State can take decisions where/to whom/for how much the farmers sell their produce to the licensed buyers. Further, the three farm laws are related to the marketing of agriculture which is exclusively under the State List. Thus, the question of framing marketing laws does not come under the purview of the Centre.

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Clearly, from a bare look at the above entries under the three lists, it is clear that Parliament did not have the requisite legislative competence to enact any law pertaining to ‘agriculture.’ Thus, the said laws can be said to be illegal or laws passed without following the due procedure established by law.

Why did the Supreme Court put a stay on these laws?

The court has not raised any such concern as stated above. The bills were passed in Parliament by a mere voice vote. The opposition raised objections in the process of passage of the bill. However, the Supreme Court did not observe any procedural limitations in its order. Thus, it may be assumed that they found the passage of bills in order. Further, the Supreme Court did not find it against any provision of the Indian Constitution.

So, from what can be observed, the laws cannot be considered unconstitutional. So, the question of withholding the implementation of the laws becomes questionable.

Forgotten about the farmers’ protest

The Supreme Court might have considered it as a matter of national concern and hence intervened in the matter. Then, one can ask, if the Centre can take any and every decision that’s on the State list all the time if they think it’s of the national interest, then what is the need for separation of power? The Centre can directly control the ‘Nation’. Such a situation poses a legible threat to the federal structure of the country.

It is understood that the judgment of the Supreme Court may not have been an ideal case to cite from a legal point of view. Even though the logic behind the judgment to stay the Farm Laws might not have been expressly mentioned in the order, from the comments offered by the three judges’ bench during the proceedings and by reading between the lines, the following possible reasons for staying the laws may be offered:

  1. Agriculture is the most important livelihood in India. Indian economy is severely dependent on it. The legislation on farms is of national ramifications. So, the Supreme Court might deem it appropriate to step in to resolve the impasse.
  2. The ‘agriculture is in the Concurrent List and the ‘agricultural marketing’ is in the State List. Maybe the Centre needs to take the State Governments into confidence in such cases. In this context, it would not be out of context to recall our experience about how the Centre and the States arrived at a consensus in the case of the implementation of GST.
  3. The Supreme Court may have stayed the laws to help in facilitating reconciliation between the two parties in conflict, for the larger interest of the society.

Conclusion

The Supreme Court has stayed a law passed by the Parliament. It may seem that it is a clear case of judicial activism. Justice Katju even went on to say that this is “judicial adventurism”. However, it may not be so, as we have seen ‘judicious’ judicial activism in the past by the Apex court. The Supreme Court in their order also said that they are not “completely powerless to grant a stay against any executive action under a statutory enactment.”

About the Author: Manjima Banerjee is a 2nd year student at St Xavier’s University, Kolkata. She’s the winner of Memo Pundits’ fortnightly blog writing competition.

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Lipi Garg

Lipi Garg

Lipi is the Assistant Publishing Editor of Memo Pundits. For help in publishing details of any event, please email at lipi.garg@memopundits.com

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