Responsibility Of The Custodes And The Committee On Farm Laws

The order of the Supreme Court is a detailed order speaking about the reasons why such an order has been granted. The court stated that a 4- member committee has been constituted for both sides to appear before and conduct negotiations since talks between the farmers' bodies and the Government have not made progress till date, and also considering the health of the public in the wake of the pandemic and the winter cold. The court even observed that the stay order will be perceived as "an achievement of the purpose of such protest at least for the present and will encourage the farmers bodies to convince their members to get back to their livelihood, both in order to protect their own lives and health and in order to protect the lives and properties of others".

The issue before the Supreme Court is of the validity of the Farm Laws and the amendment made to the Constitution. The test of validity requires the interpretation of the Constitution and only the Supreme Court under Article 32 and High Courts under Article 226 have the jurisdiction to do so. The issue here is of 'federalism' and the deliberate indirect encroachment of the Union on a subject which is exclusively in the domain of the State under Entry 14 and 18 of the State List in the 7th Schedule of the Constitution. Agriculture, including education and research, livestock, fisheries, irrigation etc., is a state subject. Even 'Markets and fairs'(Entry 28) and 'trade and commerce' within the State(Entry 26) are State subjects. However, Entry 26 is subject to Entry 33 of the concurrent list. Nonetheless, the fact remains that Agriculture, as a whole, is in the State List. The Parliament, making use of Entry 33 of the 7th Schedule, enacted the said laws deliberately encroaching upon a subject it has no power to legislate upon. The States under the Indian Constitution have been given an independent status and for that purpose the power of making laws, including taxes, is categorically divided between the Union and the States to ensure smooth functioning. Only certain subjects are commonly divided between the two and they are contained in the Concurrent List. This exercise of power by the Union is a direct attack on the exclusive domain of the State Legislatures contained under Entry 14, 18 and 26. That is also an attack on the Basic Structure of the Constitution and one of far reaching consequences being a direct assault on federalism enshrined in the Constitution.

In the cases of S.R. Bommai v. Union of India and Kesavananda Bharti v. State of Kerala, the Hon'ble Supreme Court sufficiently held that federalism is part of the basic structure of the constitution. In fact, in State of West Bengal v. Kesoram Industries, the Apex Court held that judicial interpretation of the Constitution must work towards strengthening the federal structure of the Constitution and held that the power of the States must not be whittled down.

The Committee appointed has neither the competence nor the jurisdiction to do so. They cannot decide the validity of the said laws and are therefore a non-starter for the purposes of the matter and issue at hand. Secondly, appointment of the committee is seemingly to protect the said laws. That in a way shows that the Court is trying to save the laws made without even going into the validity and the issues raised. The issues raised by the parties present before the Supreme Court are purely legal and, therefore in my opinion, sending them before the Committee is a futile exercise for the purposes of the legal dispute. As of today, one of the members of the Committee has withdrawn from it.

Moreover, the Constitution provides for separation of powers. The Government is empowered and competent to have a dialogue with the Farmers. The Government is also the one responsible for building confidence and trust if there is a deficit. The Courts have historically resisted entering into the area of policy decisions, but, by constituting this committee and observing on MSP, the court has seemingly crossed that line; something it desisted from doing in a plethora of decisions, especially in matters of economic policy.

Concerns about the impartiality of the committee have also been raised and justifiably so. It is a matter of public record that all 4 members of the said committee have written/spoken in favour of the said laws and praised the government for enacting them. Therefore, the whole exercise of negotiations before the committee, which is ostensibly biased towards one side, is a futile one. It is the same as sending the farmers before the government again. I fail to see how that is going to help improve the situation and restore the trust deficit, since that is one of the concerns of the Court.

Lastly, not all Farmers/Farmer Unions are parties before the Court. The protests of the farmers are against the laws enacted, which they perceive as a threat to their livelihoods and future survival. For them, whether the laws are constitutional or extra constitutional is of little or no relevance. They consider the laws to be unjust and draconian. Their fear and distrust stem from the fact that the laws will work to favour corporate interests and work against the interest of the farmers. They feel betrayed and let down. That is not something the Hon'ble Supreme Court can adjudicate upon. That is not something that is dependent on the validity of the impugned legislations. The burden in this instance is on the Government, being a welfare government, to be responsible to its people and its economically weaker sections. The Court can only decide the issue of validity, however in a legal dispute, and under its jurisdiction, it cannot mediate on the issue of Farmers well-being and their survival.