By Saheli Chowdhury – Jan 17, 2021
On January 12, as protests in the national capital by over half a million farmers and agricultural workers of India against the three new farm laws reached 48th day, the Supreme Court of India imposed a stay order on the implementation of the controversial laws “until further orders.” The order was pronounced by a Bench of three judges of the Supreme Court, the Chief Justice of India (CJI) S. A. Bobde and Justices A. S. Bopanna and V. Ramasubramanian, who also proposed the formation of an expert committee of four members in order to hear opinions from all stakeholders, and asked the committee to submit a report to the Court regarding the same within two months from the date on which it will begin to function. The protesting farmers and their allies have welcomed this ruling as a “temporary respite”, but have expressed their concerns over the mixed message that it transmits. The agricultural organisations conducting the protests have declared that irrespective of whatever the committee may report, the demonstrations will continue until the three “black laws” are repealed.
The said order was not completely unexpected, as in December the Court had already indicated the formation of a committee for discussion and debate. Still, it came as a disappointment to some extent because only a day earlier, on January 11, during hearings on a batch of petitions – some against the laws while others seeking removal of the hundreds of thousands of farmers blocking all major roads to Delhi, the CJI had expressed his ire against the “ego” of the national government, holding the government responsible for the current impasse. Moreover, despite some of the said petitions arguing that the laws are unconstitutional and had been passed through both Houses of the Parliament in highly arbitrary manners, the Court has remained silent over this crucial issue. In addition, although the participating farmers’ unions, demanding nothing less than a repeal of the laws, have continually opposed being part of any committee, the highest court of the land declared that “no power could prevent the Court from setting up a committee”—a declaration that eerily reflects the same ego for which the CJI had scolded the government.
“A government ploy”
On Tuesday, January 12, the Chief Justice “expressed hope” that everybody “who is genuinely interested in solving the problem is expected to go before the committee.” This was a reaction to the statement released on Monday night by the Samyukt Kisan Morcha, an umbrella organisation of farmers’ groups from across the country, that expressed gratitude to the apex court for understanding the urgency of the matter but declared: “while all organisations welcome the suggestions of the Hon’ble Supreme Court to stay the implementation of the farm laws, they are collectively and individually not willing to participate in any proceedings before a committee that may be appointed by the Hon’ble Supreme Court.”
The All India Kisan Sangharsh Coordination Committee (AIKSCC), a national platform of over 300 organisations of farmers and farm labourers, also expressed reservations over the stay order of the apex court. In a statement released on Tuesday, the body welcomed “the suspension of the laws as an interim measure” but stressed that this was not the solution that the farmers have been asking for, “given that implementation (of the laws) can be reinstated at any moment.” In the statement, the national working group of the platform reiterated that no farmers’ union would participate in the committee that the Court has formed “in its own wisdom.”
Both the statements clarified that none of the petitions under discussion by the Bench headed by the Chief Justice was filed by any of the organisations participating in the protests, and no agricultural union has been party to the Supreme Court hearings. Balbir Singh Rajewal, president of Bharatiya Kisan Union (BKU), explained further: “We never demanded from SC to form a committee; the government is behind all these. The government got the petitions filed. Since we were impleaded, we were represented by our lawyers in the court.”
Hannan Mollah, general secretary of All India Kisan Sabha (AIKS), one of the leading forces in the AIKSCC, explained to the Bengali newspaper Ganashakti on January 15, “this order by the Supreme Court is aimed to push us to complete surrender to the government. We have been sitting here, on the highways to the national capital, for the last 50 days, demanding complete rollback of the new laws. Nobody asked for a stay order on them. And I am afraid that if we leave today, the stay order will be set aside tomorrow—remember that the Court has not stayed the laws indefinitely but only ‘until further orders.’ Also, it is the government that brought in those laws, it is the government that has to repeal them. A committee can do nothing about it. We did not ask the Supreme Court to mediate on this matter, nor did we file any petition. This is a political situation, not a law-and-order situation as the government is trying to misrepresent it to the judiciary and the public. This can only have a political solution.”
“Some comments of the CJI were even more controversial,” continued Mollah. “He said that the Court does not want ‘blood on its hands,’ but why did he make that remark? In spite of provocations, police barricades, tear gas, cold, rain, deaths, in spite of everything, there has not been a single violent incident here; the protests have remained peaceful… It sounded like he was repeating certain ministers of the government, who have gone on multiple news channels claiming that the movement has been infiltrated by violent leftists, that it is a Communist movement…If we had that much support, we would have swept the 2019 general elections instead of getting only 7% [of the total valid votes],” added the AIKS general secretary, who is also a leader of the Communist Party of India (Marxist).
At a press conference, Balbir Singh Rajewal called the Supreme Court ruling “a blatant pro-government stand” and accused the government of trying to “shift pressure away from itself by forming a committee through the Supreme Court.” He reiterated that the protesting farmers will not talk to the committee, that the apex court cannot force anyone to participate in the proceedings of the panel, and that the committee is just a tactic by the government to buy time and escape accountability.
Prem Singh Bhangu, president of All India Kisan Federation, was sterner in his statement as he told NewsClick that the formation of the committee is a government ploy to delay the process. “The reason behind refusing to talk to the SC-appointed mediation panel is very simple,” he said. “It will delay and weaken our protest…We have already experienced such mediation panels. They take up the issues and submit reports after months and years. Therefore, we don’t want to get trapped.” He is not wrong, because no committee in India has ever been able to submit any report within two months, and after that, discussions and deliberations on the submitted report may continue for years.
The ‘chosen ones’ and the reactions
The four experts whom the Bench of the Chief Justice selected for the said committee are Bhupinder Singh Maan, leader of a breakaway faction of Bharatiya Kisan Union (BKU); Anil Ghanwat, leader of Shetkari Sanghthana; Ashok Gulati, economist and agricultural policy analyst; and Dr. Pramod K. Joshi, former director for South Asia of the thinktank International Food Policy Research Institute. All four of the Supreme Court’s ‘chosen ones’ have been vocal supporters of the farm laws; they have appeared on television and written in leading national dailies including Indian Express and The Hindu, openly defending the laws and branding the protesting farmers “misguided by leftists, Maoists and urban Naxals” (terms repeatedly used by the present government against any and every dissenting voice).
Bhupinder Singh Maan supports the “reforms” because “they will make farming more competitive;” he only wants an assurance of the minimum support price (MSP) for crops. However, according to latest reports, Maan has recused himself from participating in the committee. Ashok Gulati and P. K. Joshi are well-known champions of neoliberal economics in the country, while Anil Ghanwat is better known as a “corporate agent” by everyone in the state of Maharashtra. The organisation he leads, Shetkari Sanghthana, is actually an agribusiness lobby that even tried to coerce farmers of that state to cultivate GM foodgrains, something that is illegal in India. All three are of the opinion that the new agricultural laws have “provided more opportunities” for the farmers to sell their produce anywhere, which will lead to “greater competition in the market” and help India to “harness emerging global opportunities.” In fact, it was originally a panel headed by Gulati that had recommended the government to introduce the three farm laws in question, hence the move of the Supreme Court to appoint him to a panel regarding the laws constitutes at least a conflict of interest. This panel is the complete opposite of what the Supreme Court had stated last month, on December 17, when it had ruled on another clutch of petitions centred around the farm protests. That time also the Court had hinted at the creation of an expert committee for discussing the laws, but at that instance the ruling bench had dropped names of experts on rural affairs like that of journalist P. Sainath, founder-editor of People’s Archive of Rural India (PARI), who has worked and reported on the Indian agro-economy for over four decades. Something curious must have happened in the space of a month for which the Court has done an about-turn from its own position.
Jagmohan Singh, member of the national working group of AIKSCC and leader of BKU, alleged that in the name of judicial proceedings, the highest court is not remaining impartial and is getting involved in politics. At a press conference of Samyukt Kisan Morcha, he stated, “had the apex court been guided by a sense of justice, it would not have appointed a committee of people supporting the government’s stand from day one. It is a terrible judgement not to include at least one dissenting voice in the panel.” He stressed that the formation of such a committee is aimed at putting the farmers’ agitation and concerns “in the cold storage.”
Jagjit Singh Dallewal, president of an arm of BKU, added “tomorrow, the government will escape from its accountability giving reference of the report that will be submitted by this committee, which at most will recommend some minor amendments [to the laws]. Anything less than repeal of the three laws is not acceptable to us.”
Various farmers’ bodies and other organisations have also taken issue with the comments of the CJI regarding the presence of women, children and elderly people at the protest sites. During the course of the hearing, he had commented, “Why are women and elders kept in the protest? They should be asked to go home.” He also suggested that advocate H.S. Phoolka “persuade” the women and elderly protesters to return home, citing his concerns about the harsh winter conditions and the pandemic situation in Delhi. However, farmers’ organisations and women’s bodies have condemned this as misuse of “humanitarian grounds,” referring to the silence of the Supreme Court over other recent humanitarian issues, like the plight of migrant workers—many of them women, elderly and children—in the first months of the unplanned lockdown last year, or not ordering the national government to pay compensations to the families of the migrants who died on the way back to their places of origin. Others have been outraged by the language used by the Chief Justice of the country, stating that the aforementioned comment goes against the Constitution which grants every citizen the fundamental right to protest, irrespective of their age, sex, or anything else.
At a solidarity demonstration organised in Kolkata on January 14 by Students’ Federation of India (SFI), a left-wing students’ organisation, a speaker expanded on the legal theme, “There should be more conversation around the unconstitutionality of the farm laws. The Supreme Court can stay or suspend laws only on the grounds of the said laws being against the letter or the spirit of the Constitution. But in the case of these laws, as for the Citizenship Amendment Act earlier, the Court has not considered the question of constitutionality. In addition, the language of the ruling—the three laws ‘will remain suspended until further notice’—is both ambivalent and dangerous. When will be the next ‘notice’? When the committee appointed by the Court submits its report? What will happen if the Court rules based on the report and farm organisations appeal against it? Judicial processes in the country take years to decades to be completed, as we all know and have experienced.”
Do we have the luxury of that much time? No, according to P. Sainath, who has called the process of the formation of a committee to deliberate on the farm laws “death by committee.” Last month, when the Supreme Court had suggested his name while proposing a committee for the first time, Sainath reacted that he did not want to be “party to death by committee.” He continued, “these are sweeping bits of legislation by the Centre on what is, under the Constitution, a state subject. Can you amend unconstitutional laws—no, you withdraw them.” He also called for a special session of the Parliament on the rural crisis, a call that he has been repeating for years.
“It is not the job of the courts to make laws or deal with law-and-order situations. Court has to see the legality of an issue,” wrote social activist Vidya Bhushan Rawat, who has worked extensively on social issues and constitutional matters. According to him, the Supreme Court order in question is not at all “revolutionary,” nor does it go against the position of the central government, rather it seeks to defuse the protests while maintaining the status quo. He also condemned the continued arrogance of the government even after 60 deaths during the course of the protests, and the tactics being used by ministers and leaders of the ruling dispensation to scare protesters and to discredit the protests with allegations of terrorism.
“Now the judiciary seems to have sided with the government,” a member of All India Students’ Association (AISA) who participated in the solidarity protest of January 14 confided to me. “Personally, I was surprised that the Bench of the Chief Justice asked the Solicitor General (representing the government) about the presence of Khalistanis [a separatist movement in Punjab] in the protests. It was just propaganda, based on a single report of sighting of a truck with slogans written in support for the Khalistan Movement, now already without any popular support to speak of, that has been blown out of proportion by some mainstream news organisations. We know who finance the MSM, who own them, who operate them, with whom they are affiliated. It is disappointing, to say the least, to see the highest court of the land giving credit to ruling party propaganda. What happened to the separation of the judiciary from the legislative and the executive?” she lamented.
This is a concern that has arisen due to a few recent rulings by the Supreme Court on some landmark cases, rulings that have left much to be desired. In case of some extremely unconstitutional moves of the government like the adoption of the controversial Citizenship Amendment Act (CAA) or the stripping away of statehood from Jammu and Kashmir and dividing it into two union territories, the apex court openly sided with the government by refusing to pronounce on the lack of constitutional validity of the said acts. In the Babri Masjid-Ram Janmabhumi dispute, the apex court, after censuring the demolition of a five-century old mosque by religious fundamentalists as a blot on the secular nature of the Republic, granted the disputed land to the very organisations which had carried out the demolition. Through these judgements and now with the ruling over the farm laws, the Supreme Court itself has disregarded the independence of the judiciary from the other branches of the administration as mandated by the Constitution. Therefore, although the Chief Justice of India has demanded that everybody must cooperate with the judiciary, no Indian is under any obligation to cooperate with a compromised judiciary. Instead, the highest court of the country must remember that it is not the job of the judiciary to save the reputation of any government, but to ensure the constitutional rights of the country’s citizens.
In regards to the protests, Rakesh Tikait of BKU has informed that irrespective of what the SC decides in the coming days, the protests will continue until the government repeals the three laws and introduces another assuring minimum support price for crops. All the programmes will be carried out as planned, and a “Kisan Parade” (farmers’ parade) with tractors and rallies on foot will be held in Delhi on Republic Day, January 26.
Jagmohan Singh of the national working group of AIKSCC declared “we have come here for an indefinite period, we will return victorious.”
Featured image: More than half a million protesters have braved the winter and camped outside Delhi. Photo courtesy of REUTERS.