What you need to know about the Supreme Court order that protesting farmers have rejected

The Supreme Court on Tuesday stepped right into the middle of the 45-day-long agitation by farmer groups against the laws that seek to deregulate agriculture. It put a stay on the implementation of the laws and set up of a committee – staffed entirely by those who have supported the bills – to “listen to the grievances” of the protesters.

It also suggested that the farmers call off their protest.

The agitating farmer groups immediately rejected both the suggestion to call off the protest as well as the committee, and insisted that their demand remained the same – a full repeal of the laws by the government.

Tuesday’s developments were unusual in that the court took the rare step of putting on hold the implementation of laws that had been passed by Parliament without actually pointing to any legal or constitutional concern it had with the laws themselves.

As a result, the court’s decision angered some supporters of the laws – even though the government did not argue against a stay on the implementation – and yet was also not embraced by the protesters either.

Here is what we know.

What did the court order?

After hearing a clutch of petitions, some questioning the constitutional validity of the laws, others demanding the protesters be removed from the areas around Delhi where they have blocked public roads, the court’s order did not address either of these bigger questions.

Instead, in order to “assuage the hurt feelings of the farmers and encourage them to come to the negotiating table with confidence and good faith”, the court put the implementation of the laws on hold.

Moreover, noting that negotiations between the government and the farmers have failed so far, it ordered the constitution of a committee “for the purpose of listening to the grievances of the farmers relating to the farm laws and the views of the Government and to make recommendations”. The committee is expected to listen to the farmer groups and submit a report to the government in two months.

Who is on the panel?

These are the four names in the court-appointed panel:

• Bhupinder Singh Mann, National President, Bhartiya Kisan Union and All India Kisan Coordination Committee.
• Pramod Kumar Joshi, agricultural economist, director for South Asia, International Food Policy Research Institute.
• Ashok Gulati, agricultural economist and former chairman of the Commission for Agricultural Costs and Prices.
  
• Anil Ghanwat, president, Shetkari Sanghatana, a Maharashtra-based farmer body.
  

As has been pointed out by many observers including the farmer groups themselves, all four of the members of the committee have previously spoken out in favour of the laws in some form or the other.

• Bhupinder Singh Mann met the Union Agriculture Minister in December 2020, handing over a memorandum that demanded implementation of the laws, with a few safeguards that had already been considered by the government.
  
• Pramod Joshi in December 2020 co-wrote an op-ed saying farmers are “changing the goalposts before every negotiation” and that “any dilution in the farm laws will constrain Indian agriculture to harness emerging global opportunities”.
  
• Ashok Gulati welcomed the laws when they were first promulgated as ordinances in May 2020, saying they showed “a willingness to walk the right path [that] deserves compliments” and likening them to a “1991 moment of economic reforms for agriculture”.
• Anil Ghanwat’s Shetkari Sanghatana has rallied in support of the laws and insisted that the government should not bend to “pressure from farmers in just two states”.
  

What position did the government take?

For a few days before the hearing in court on Monday and Tuesday, the government had been making it clear that they expect a judicial solution to the deadlock with the protesters, after weeks of attempting to negotiate, pry away farmer support and vilify those demonstrating as Khalistanis.

Farmer groups questioned the government’s approach in the eighth round of talks, when it brought up the Supreme Court, saying, “It’s a sad day for democracy when an elected government in the middle of talks takes resort in the Supreme Court and says that we should fall back on the Court.”

On Monday, the government’s Attorney General vociferously opposed any stay on the implementation of the law – earning criticism from the judges. On the subequent day, however, it did not challenge this. Moreover, the government welcomed the constitution of the committee to look into the matter.

Were the farmers party to the order?

As per the Supreme Court order, two categories of farmers’ unions are before the bench. One set has deemed the farm laws unconstitutional and want it struck down. The second set has moved impleading petitions supporting the farm laws as beneficial to farmers. ML Sharma, a lawyer known for moving PILs frequently, has not only challenged the farm laws but also the Constitution Amendment effected in 1954 that shifted the subject of agriculture from the state list to the concurrent list.

A number of the lawyers who had on previous occasions represented other farmer groups as part of the protest were not present in court. At the protests, some of the leaders have said clearly tha they do not intend to participate in the legal process, and that their quarrel is with the government.

Regardless, the court in its order said that “the representatives of all the farmers’ bodies, whether they are holding a protest or not and whether they support or oppose the laws shall participate in the deliberations of the Committee and put forth their view points”.

Does it the order expect the farmers to end their agitation?

From the order, the purpose of the court is ostensibly to end the stalemate in the talks between the Centre and the farmers. The court has said that it was staying the implementation of the law so that farmers’ confidence in the parleys would improve.

The court has not asked the farmers to end the protests. In fact, the court has lauded the farmers for their peaceful agitations.

However, it has recorded the submissions of the Attorney General and another lawyer who said that banned organisations have infiltrated the protests. The Attorney General has been asked to file an affidavit over the matter.

And it also included this observation: “We think that this extraordinary order of stay of implementation of the farm laws 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.”

In other words, now that the laws have been stayed, the court expects – but has not ordered – the protesters to go home.

What does it say about the elderly, women and children?

Without explaining why they ought to be treated any different from other protesters, the court observed that “the situation on ground is: (i) that senior citizens, women and children are at site, exposing themselves to serious health hazards posed by cold and Covid”.

It later accepted a submission from a lawyer in court who claimed “that elders, women and children will be dissuaded from being there at the site of protest”.

The comments have provoked responses from many, pointing out that paternalistic tone towards women – who account for vast numbers of the farming community in India.

How can the court stay the implementation of a law?

Attorney General KK Venugopal on Monday had vociferously opposed the bench’s suggestion that the implementation of the laws be stayed. He had argued that there was a presumption of constitutionality whenever a law is passed.

The court has countered this by pointing to previous orders that had stayed enforcement of laws. However, the order has not taken the effort to explain the difference between staying a law and staying the implementation of the law. It only notes that the stay is “extraordinary.”

What does ‘staying the implementation of laws’ actually mean?

One way to read the order is that the Supreme Court, by only staying the implementation of the law, has not broken the presumption of constitutionality. Whether the law is constitutional would be decided at a later point in time. However, the effect of this order is likely to be that the Centre cannot, for two months, enforce the provisions on the ground and the situation that existed before the laws were passed would continue.