The Chief Justice-led bench of the Supreme Court a few days ago observed that its intervention in the issue related to the new farm laws has been “misunderstood.” The court’s order staying the farm laws and constituting a committee has been criticised on legal and constitutional grounds. Critics say that the constitutional court tried to act as an executive court, meaning thereby that the court attempted for a resolution of the issue so as to rescue the government. The counter view is that the court’s intervention was to find out a genuine solution to the issue and to reach an amicable settlement.
The farm laws were challenged in the Supreme Court mainly on the ground that the “pith and substance“ of the legislations fall within the State list under the Seventh Schedule of the Constitution. The Seventh Schedule is like a montage. For legislative purpose, often the Centre intrudes into the State’s terrain. A justification would then follow based on some entries in the Union list or in the Concurrent list. A whole statute will then be created resembling a script with the Centre’s political and economic policy. The States too sometimes might commit the same mischief. In either case, threat to the scheme of the Constitution is writ large.
The pith and substance of the new farm laws is “agriculture.” Agriculture, agricultural land and markets are entries 14, 18 and 28 respectively in the State list. Entry 30 of the State list includes “relief of agricultural indebtedness.” Entries 45 to 48 of the same list are regarding revenue and taxation related to land or agricultural land. The Supreme Court can strike down a parliamentary law if it substantially
breached the borders within the Seventh Schedule.
The judgment in Kameshwar Singh Case (1952) is a rare admonition against colourable legislation. In State of Rajasthan Vs G Chawla (1958), the court focused on the content of the statute for deciding its validity. These judgments can have a precedential value while scanning the farm laws. The Centre would try to rely on entry 33 in the Concurrent list. It is not a forbidden zone for Parliament. It is an entry about trade and commerce. It also includes food items. The Centre would thus try to justify its legislative competence on farm laws.
It is this constitutional conundrum that the Supreme Court is called upon to solve in the batch of cases. The court could not adjudicate the issue in time and, thus, it also contributed to the happenings in the street, though its role might have been secondary. The lesson: Time is the essence of constitutional adjudication. The court, of course, on January 12 stayed the laws without any legal reasoning and with a clear intention to resolve the political puzzle rather than the legal puzzle. The intervention was belated and derailed. The court’s committee jurisprudence has taken a good deal of flak. The court was also criticised for its functional failure.
But the egregious insensitivity shown by the executive and the legislature also is equally serious. It needed almost the whole winter in the north for the Centre to suggest something significant, like keeping the laws in abeyance, so as to find out a viable solution to the crisis. In a deliberative democracy, legislative discourse matters. Majoritarianism is not an alibi for refusing conciliation. A regime that believes in the supremacy of the market could lose sight of the agonies and worries on the soil. The opposition too cannot boast of a finer track record on farmers’ issues.
The farm laws were passed in Parliament with little or no deliberation. In spite of the protests, the laws were hurried through. Deliberative democracy requires discussion and engagement throughout the process of law making — before, during and after. The complaint of the farmers that there was no pre-consultation before initiating the laws shows the significance of prior deliberation. The stakeholders must be given an opportunity and heard before taking significant decisions that impact their interests. National justice is a sound principle even in the realm of law making.
In a democracy, legitimacy of legislation is tested on the streets, by peaceful agitations. Political movement is an important tool for ensuring democratic accountability. Despite the challenges posed by the pandemic, the fact that a civil agitation could be launched with enormous participation is remarkable. In general, these agitations have the potential to keep the governmental actions in check. India’s civil disobedience movement was historic not only due to its massive character, but on account of its roots in the ideology of nonviolence. The farmers’ struggle has great ethical content which is not alien to constitutionalism. This moral content is what gives strength to the movement.
Farmers have every right to seek “justice-social, economic and political” as offered by the preamble to the country’s fundamental law. Minimum Support Price with a statutory backing is an indispensable variation of agricultural justice. Loss of revenue for states like Punjab and Haryana due to the abolition of mandi system could also be a federalist concern.
The country’s agricultural diversity is reflected in multiple ways and the scheme of Seventh Schedule recognised it abundantly. Anything that weakens the federalist tenets could turn authoritarian, both in political and economic sense. Federalism is also synonymous with decentralisation of power.
KALEESWARAM RAJ
kaleeswaramraj@gmail.com
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The writer is a Supreme Court lawyer