In an unprecedented order delivered on January 12, 2021, the Supreme Court (SC) has stayed the implementation of the three laws on agricultural marketing reforms enacted by the Modi – Government in September, 2020.
The top court normally intervenes if a law passed by the Parliament is either beyond its legislative competence or is unconstitutional in as much as it violates the basic structure of the constitution. In the instant case, none of these reasons apply. In fact, the SC has not yet examined the constitutionality or otherwise of the laws (a petition in this regard is already pending with it). Then, what has prompted the court to take recourse to such an extraordinary step.
Tens of thousands farmers – mostly from neighboring states of Punjab and Haryana – have been on the roads for over 50 days protesting against these laws. The Government has so far held nine rounds of negotiations with farmers’ leaders to address their concerns and even agreed to make necessary amendments in the relevant provisions. But, the farmers don’t want to settle for anything short of repealing all the three laws and also insisting on enactment of a law guaranteeing minimum support price (MSP).
In this backdrop, and keeping in mind the overarching need to prevent any untoward incident and give an opportunity to the farmers get their concerns addressed in a congenial atmosphere, the SC has put implementation of the laws on hold (till further order) and also set up a four member committee (consisting of 2 agriculture economists and 2 representatives of farmers). The committee will meet all stakeholders and submit its report to the court within 2 months & 10 days.
The order has come as a big disappointment to all those who were rejoicing over the far reaching reforms in marketing of agricultural products that were brought about vide these three laws; will unleash unlimited opportunities to farmers sell their produce at high prices for increasing their income; incentivize corporate including foreign investors invest in development of agri – infrastructure and provide modern agricultural inputs, technologies and farming practices for getting higher yield and enhance crop quality.
Already, following enactment of the three farm laws, a number of projects in the area of food procurement, processing, handling and distribution are under implementation. Hundreds of start-ups have come up; a number of them having borrowed money from the Rs 100,000 crore agri – infrastructure fund set up by the Union Government under the stimulus packages announced by the Finance Minister, Nirmala Sitharaman last year. Now, in view of the SC order staying their implementation, these investments will be in jeopardy, besides no further investment will come.
It may be argued that the top court has not annulled the laws; that it has only put their implementation on hold. But, this is no consolation as the order has created uncertainty about the future in view of two related matters on which the court has to take a view before full clarity emerges on whether the laws will stay or not.
First, the aforementioned committee has been given 2 month and 10 days to submit its recommendations. Further action by the apex court will have to wait till the committee submits its report and that is a minimum of 2 month and 10 days. Considering that pan – India, there are around 500 unions of the farmers (those agitating on Delhi borders are just about 40) and that the committee is expected to take the views of all or majority of them, finalization of the report could take much longer – 6 months or even more. Consequently, removal of the embargo (if at all, SC reaches a conclusion that everything is hunky dory with the laws) will have to wait that long.
Second, a petition is also pending before the SC challenging the constitutional validity of the three Central laws. The petitioners have questioned these on the ground that agriculture being a state subject under the constitution, Union Government does not have powers to legislate in this area. In fact, they have questioned the entry 33 of the Concurrent List – inserted vide an amendment in 1954 – which the latter has invoked to enable direct purchase of specified commodities/ foodstuffs from farmers outside the designated Agricultural Produce Market Committees (APMCs).
The apex court needs to pronounce its verdict on this fundamental aspect. Instead, things have gone off the track with the order of stay pushing them into an uncharted territory and uncertainty of the policy environment. The ball does not stop here.
The present episode sets a dangerous precedent. If, a handful of unions representing a few lakh farmers (a meager 3% of a total of 150 million farmers in India) can force stay on implementation of laws passed by the Parliament – that too by resorting to agitation and holding the national capital under siege, a small group from any other sector of the economy can also force the top court – using similar tactics – order stay on relevant laws enacted by the legislature.
If, on prima facie finding of the law being in violation of the constitution or beyond competence of the Parliament, the SC were to order a stay, that would be fine. But, to put it on hold merely on an ‘assessment that the situation is extraordinary’, it raises many a hackle. It makes the implementation of any law vulnerable to the actions of a few lakh persons (or even a few thousand).
The actions based on such an assessment can lead to chaos. In the instant case, acquiescing to the pressure from farmers in one or two states, it has forced the Central Government to stay implementation of these laws making the former happy and hoping they return home (it is a different matter that this group is unrelenting and won’t settle for anything less than repeal and has added more demands to their charter). What if, this prompts farmers in other states who have welcome the laws to come on the roads and do a repeat of what is happening in Delhi.
Will the court order removal of the stay on the law; this time to deal with the so called ‘extraordinary situation’ created by the majority group? Will this not plunge the country perpetually in a state policy uncertainty? What happens to India’s avowed objective of offering a ‘stable’ and ‘conducive’ policy environment?
In the past, the SC has refrained from making any intervention on policy matters saying this is the prerogative of the executive. But, this time around, for it to intervene and go that far as to stay implementation of the laws (albeit economic) passed by the legislature is anomalous. Having decided to go into it, it ought to have looked into the merits (or demerits, if any) of the three bill instead of leaving it to a committee. Or, it could have avoided granting a stay right away; instead waited for committee’s report.
Ironically, even as the Government has shown enormous flexibility to accommodate all concerns raised by farmers and promised to make necessary amendments (besides providing clarifications wherever needed), farmer leaders have thus far shown ‘my way or the high way’ attitude and harped all along on ‘repealing the laws’ and adding a demand for ‘a law on MSP’ to cover all purchases made by private traders (a demand which is impossible to meet).
They have not pinpointed any provision in the laws which could subject them to loss. The losses alleged by them are all based on misconceptions and myths. For instance, there is nothing in the laws to suggest that APMC mandis will be closed; or Central agencies such as Food Corporation of India (FCI) will stop purchasing albeit at MSP; or firms which enter into contract with farmers will grab their land; or farmers will be reduced to the status of laborer and so on.
The SC should have taken a look at all the facts which clearly show that farmers have only to gain from the Central laws and nothing to lose. Accordingly, it should have goaded them to sit with the Government to sort out remaining concerns, if any. Instead, its order of stay (without going into the details) has only fueled their ‘my way or the high way’ to a point whereby they have even refused to meet even the committee appointed by it.
There is urgent need for course correction. The SC can use the defiance of farmers to lift the stay right away and leave the matter to be sorted out between them and the Government. Meanwhile, the court should only focus on examining ‘whether the three laws are valid’. It should deliver the verdict on fast track so that uncertainty of the policy environment comes to an end.