First, laws enacted without farmers' consent, now panel set up without their consent, writes Olav Albuquerque
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The Supreme Court vindicated its supremacy by doing something which neither the farmers’ unions nor their antagonist, the Government, had prayed for during the proceedings. The three-judge bench, comprising CJI Sharad Bobde, A S Bopanna and V Ramasubramanian set up a four-member expert committee to submit a report within two months, after first staying the three contentious farm laws.

But while staying these laws, the Supreme Court did exactly what it orally accused the government of doing. It set up an expert committee without consulting the farmers and made it mandatory for the agitating farmers to appear before it. Not doing so may invite a charge of contempt of court.

Bigger dilemma

So, while the government has refused to repeal the three contentious alleged anti-farmer laws, the Supreme Court has put the farmers in a bigger dilemma. The farmers are damned if they appear before the expert committee because nothing remains in their agitation once they do so. They are damned if they don’t appear before the committee because they can be accused of contempt of court and spreading anarchy by trying to overthrow Parliament’s supremacy.

Allegations that the microphones of opposition MPs were muted when the farm laws were passed have also been levelled against the Government. Whether true or false, what is a fact is these three farm laws were not referred to either a standing committee or a select committee in either the Lok Sabha or Rajya Sabha before getting Presidential assent via the ordinance route. This implies these laws were passed by the Government for the Government and with the consent of the Government alone.

This is why the farmers have accused the Supreme Court of trying to break their strike by setting up an expert committee comprising men who avow support to the three contentious laws. Their predicament of justifying before a panel set up without their consent why laws enacted without their consent must be repealed is heart-rending. Senior advocate Dushyant Dave said on a news channel he sought a day’s time to seek instructions from the farmers’ unions, to which the CJI did not accede.

Absolute authority?

In a flawed democracy like ours, the preamble declares the people of India are sovereign and not the Government or Parliament, which derives its sovereignty from the people of India. By this logic itself, Parliament has to enact laws with the people’s consent and not the Government’s, which allegedly uses its absolute majority as an unchecked authority to steamroll laws through Parliament without consensus. CJI Bobde has orally said the Supreme Court cannot direct Prime Minister Narendra Modi what to do because well, an absolute majority implies absolute authority.

So, has the order really been a huge setback for the Government? No doubt, the CJI remarked, “We are extremely disappointed in the way you are handling the situation...you made a law without enough consultation, resulting in a strike. Many states are up in rebellion against you...you say you are negotiating. What talks? What is going on..?"

The CJI’s oral comments appeared to have validated the view that these farm laws were passed without consulting the farmers. But these oral remarks were not recorded in the 11-page order of the three judges. We must remember that judges’ signed orders are implemented but not their oral observations.

Oral remarks unrecorded

Going by this yardstick, the CJI’s oral observations have not been recorded for posterity in their 11-page order. Now, what is primary evidence is what the court records in its orders and not scattered media reports, which have zero legal value. And so, the Supreme Court may have unwittingly perhaps, again gone soft on the Government, by unintentionally breaking the farmers’ agitation while setting up this committee.

The composition of the committee, like the alleged anti-farmers’ laws, appear not to have been discussed with the agitating farmers’ unions. We forget that the composition of the Supreme Court, like the four-member committee it has set up, is selected, and not elected. Selection, whether on pure merit or otherwise, is inherently anti-democratic. That is why the farmers are exercising their democratic right not to appear before the four-member committee, which has been reduced to a three-member committee with the resignation of ex-MP Bhupinder Singh Mann.

Why? To select one example, the president of the Shetkari Sanghatana, the largest farmers’ union in Maharashtra, Anil Ghanwat is an agriculture graduate, who worked with the legendary Sharad Joshi since the 1990s. Like his mentor, Ghanwat has been a votary of liberalisation and open-market policies in agriculture which form the core of these alleged three anti-farmer laws.

Contentious laws

In effect, Ghanwat, like his two colleagues, is not coming to the negotiating table with an open mind but with a strong conviction that India needs these three contentious laws, which the farmers oppose. Simply put, it is like accusing a person of a crime and asking him to prove his innocence. In this case, the accuser is the Government and the accused are the farmers.

Despite the Shetkari Sanghatana supporting the three alleged anti-farmer laws, several state governments have outright refused to notify these laws because agriculture is on the State list of the seventh schedule in the Constitution. The Modi government used its residuary powers under Article 248 of the Constitution and entry 33 of the concurrent list, for the so-called benefit of the country, to pass these contentious laws.

Similarly, the farmers allege the Farmers’ (Empowerment and Protection) Agreement on Price Assurance and Farm Services Act for contract farming protects big corporate interests and not their own. The Government has allegedly abdicated its role of protecting small and marginal farmers from giant corporations by guarantees leading to one-sided contracts.

Farmers’ experience of contract farming has arguably led to some of them committing suicide. And finally, the third law, amending the Essential Commodities Act, permits hoarding of stocks and removes price control mechanisms which will obviously have a direct impact on higher consumer prices. On this, there are no proposals from the government. Absolute majority leads to unchecked authority.

The writer holds a PhD in law and is a senior journalist-cum-lawyer of the Bombay high court.

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