Legal View: SC must adjudicate on the legality of farm laws and not on their merit

Farm laws, it has been argued, would see the agricultural sector grow and create opportunities for small farmers to improve the productivity of their farms apart from helping them get a better deal for their crops. However, farmer unions across the country believe these laws go against their interest. For the last fifty days they have gathered in the thousands at the borders of Delhi seeking repealing of these laws.

The government in power is adamant that these laws will not be repealed. Meanwhile some farmers have died -few in the winter chill, others committing suicide as a mark of protest.

It is in this current impasse that the Supreme Court, the final authority on issues of constitutionality, has been petitioned to declare the farm laws as unconstitutional. Applications have also been filed against the farmer protests as going beyond the scope of constitutionally guaranteed right to speech and protest. After a preliminary hearing of all parties the Court thought it fit to put a halt to the implementation of the farm laws and set up a committee to mediate between the farmer’s and the Central Government.

JUDICIAL REVIEW AND PARLIAMENT MADE LAW

The Court’s order putting in abeyance the implementation of the farm laws has been criticised on two grounds (a) The order has violated the constitutional separation of power and undermined parliamentary supremacy by staying the Legislature’s will prescribing agricultural reform. (b) The Court can only stay the implementation of a Statute/Act if there is a prima facie violation of the provisions and principles of the Constitution. The Court has failed to demonstrate such a violation in its interim order.

Both the criticisms are interlinked. The argument that the Court order has intruded into the legislative arena, and it does not have the power to do so within our constitutional framework is incorrect. In fact, the Court has only recently explained while striking down the National Judicial Appointments Commission (2015) and the National Tax Tribunal (2014) the grounds on which the Judiciary can test the constitutionality of a Legislation. Further the claims of reform as reason for legislation does not grant immunity to a law from being tested to see whether it violates the provisions of the Constitution.

The question that arises therefore is on what basis the Court examines the constitutionality of an Act. One ground is whether there exists legislative competency. As we know there are three lists under the 7th schedule of the Constitution. These are the Union, State and Concurrent lists. In our federal structure these lists divide jurisdiction on various subject matters between the Central and State assemblies.

The Supreme Court in its interim order has recorded a challenge made to the Farm laws on the premise that the Constitution (Third Amendment) Act, 1954 has allowed production, distribution and supply of certain products/goods (agricultural), otherwise in the State list, to be taken into the Concurrent List giving the Central Government power to legislate on what would otherwise be strictly a state subject.

The other grounds for examining the constitutionality would be whether the provisions are in line with the elements of the basic structure of the Constitution i.e. federalism, separation of powers etc (Keshavanand Bharti case (1973). The Statute is also tested to see whether it violates any provisions of the Constitution including the equality clause and other fundamental rights guaranteed to citizens.

The question now is whether the interim order staying the farm laws has given a prima-facie finding that there is such a violation. The Supreme Court had while hearing the challenge to the constitutional validity of the Health for Millions v. Union of India (2013) challenging the constitutional validity of the Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 set aside a High Court order staying the provisions of the Statute. The Court held that there is presumption of constitutionality of an act of the legislature.

And therefore, an interim order should be granted in rare situations and only where the Court can show the prima-facie reasons why a statute is unconstitutional. Further the Court has to take into account the effect on the public if such a stay is not granted. It has to consider the irreparable damage to the petitioners and also evaluate the balance of convenience between the contesting parties apart from considering public interest.

There is little doubt that in respect to the farm laws there are enough reasons to grant an interim order. However, the Court has not substantiated the reasons for passing this interim order. The rule of law amongst other things is premised on reasoned orders and consistency in upholding legal precedent. When an order of the Highest Court does not reflect these legal features there is damage to the institution’s credibility.

The forming of a committee by the Supreme Court has also raised several eyebrows. Especially in view of the fact that several rounds of meetings between the Government and the farmers have seen a clear deadlock. The separation of powers which has been frequently raised incorrectly on Television channels, mandates that it’s the Government’s role to consider the grievances of citizens. The Citizens have the constitutional right to protest themselves and through political representation in the opposition. The Court’s role is outside this sphere of political engagement and limited to adjudicating on questions of law.

Therefore, exercise of judicial review to form this Committee to negotiate appears misconceived. The farmers have already entered into talks with the executive. Further the fact that all members in the committee are on record supporting the farm bill makes this form of mediation appear suspect.

I must conclude by saying that all those who feel the protests against Parliamentary legislation is problematic must understand that legislation is only the primary and not the final step in a constitutional democracy. The Constitution provides a complicated set of checks and balances. The fundamental rights (speech and protest), or as I like to call them dissenting rights exercised by the farmers, have shown why the founders of the Constitution guaranteed our citizens these freedoms. It is now time for our constitutional institutions including our Courts to redeem the credibility that has been lost during the rule of the current majoritarian Government.