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May 26, 2021

Responsibility Of The Custodes And The Committee On Farm Laws

first_imgColumnsResponsibility Of The Custodes And The Committee On Farm Laws Prateek Dwivedi18 Jan 2021 4:52 AMShare This – xThe parliament represents the ‘sovereign will of the people’ and in law there is a ‘presumption of validity’ in favour of legislations enacted by the Parliament/Legislatures(as has also been held in a plethora of judgments). Our history has never witnessed such an extraordinary stay of implementation of Acts of Parliament as has been granted without stating them to be prima facie…Your free access to Live Law has expiredTo read the article, get a premium account.Your Subscription Supports Independent JournalismSubscription starts from ₹ 599+GST (For 6 Months)View PlansPremium account gives you:Unlimited access to Live Law Archives, Weekly/Monthly Digest, Exclusive Notifications, Comments.Reading experience of Ad Free Version, Petition Copies, Judgement/Order Copies.Subscribe NowAlready a subscriber?LoginThe parliament represents the ‘sovereign will of the people’ and in law there is a ‘presumption of validity’ in favour of legislations enacted by the Parliament/Legislatures(as has also been held in a plethora of judgments). Our history has never witnessed such an extraordinary stay of implementation of Acts of Parliament as has been granted without stating them to be prima facie extra constitutional. The presumption of validity in favour of legislations is what prevents the courts from granting such an interim relief even if there is a prima facie case in favour of granting such a relief. A recent example of refusal to grant such a relief would be the case of the challenge to the CAA and NRC laws despite the fact that a religion based classification exists in those laws, amongst other reasons, giving it a draconian colour. This, despite there being nationwide protests and strict crackdowns on the protesters against those laws. In fact, in the instant challenges to Farm Laws, the Supreme Court has itself stated that it is an “extraordinary order of stay”. The order of the Supreme Court is a detailed order speaking about the reasons why such an order has been granted. The court stated that a 4- member committee has been constituted for both sides to appear before and conduct negotiations since talks between the farmers’ bodies and the Government have not made progress till date, and also considering the health of the public in the wake of the pandemic and the winter cold. The court even observed that the stay order 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”. The issue before the Supreme Court is of the validity of the Farm Laws and the amendment made to the Constitution. The test of validity requires the interpretation of the Constitution and only the Supreme Court under Article 32 and High Courts under Article 226 have the jurisdiction to do so. The issue here is of ‘federalism’ and the deliberate indirect encroachment of the Union on a subject which is exclusively in the domain of the State under Entry 14 and 18 of the State List in the 7th Schedule of the Constitution. Agriculture, including education and research, livestock, fisheries, irrigation etc., is a state subject. Even ‘Markets and fairs'(Entry 28) and ‘trade and commerce’ within the State(Entry 26) are State subjects. However, Entry 26 is subject to Entry 33 of the concurrent list. Nonetheless, the fact remains that Agriculture, as a whole, is in the State List. The Parliament, making use of Entry 33 of the 7th Schedule, enacted the said laws deliberately encroaching upon a subject it has no power to legislate upon. The States under the Indian Constitution have been given an independent status and for that purpose the power of making laws, including taxes, is categorically divided between the Union and the States to ensure smooth functioning. Only certain subjects are commonly divided between the two and they are contained in the Concurrent List. This exercise of power by the Union is a direct attack on the exclusive domain of the State Legislatures contained under Entry 14, 18 and 26. That is also an attack on the Basic Structure of the Constitution and one of far reaching consequences being a direct assault on federalism enshrined in the Constitution. In the cases of S.R. Bommai v. Union of India and Kesavananda Bharti v. State of Kerala, the Hon’ble Supreme Court sufficiently held that federalism is part of the basic structure of the constitution. In fact, in State of West Bengal v. Kesoram Industries, the Apex Court held that judicial interpretation of the Constitution must work towards strengthening the federal structure of the Constitution and held that the power of the States must not be whittled down. The Committee appointed has neither the competence nor the jurisdiction to do so. They cannot decide the validity of the said laws and are therefore a non-starter for the purposes of the matter and issue at hand. Secondly, appointment of the committee is seemingly to protect the said laws. That in a way shows that the Court is trying to save the laws made without even going into the validity and the issues raised. The issues raised by the parties present before the Supreme Court are purely legal and, therefore in my opinion, sending them before the Committee is a futile exercise for the purposes of the legal dispute. As of today, one of the members of the Committee has withdrawn from it. Moreover, the Constitution provides for separation of powers. The Government is empowered and competent to have a dialogue with the Farmers. The Government is also the one responsible for building confidence and trust if there is a deficit. The Courts have historically resisted entering into the area of policy decisions, but, by constituting this committee and observing on MSP, the court has seemingly crossed that line; something it desisted from doing in a plethora of decisions, especially in matters of economic policy. Concerns about the impartiality of the committee have also been raised and justifiably so. It is a matter of public record that all 4 members of the said committee have written/spoken in favour of the said laws and praised the government for enacting them. Therefore, the whole exercise of negotiations before the committee, which is ostensibly biased towards one side, is a futile one. It is the same as sending the farmers before the government again. I fail to see how that is going to help improve the situation and restore the trust deficit, since that is one of the concerns of the Court. Lastly, not all Farmers/Farmer Unions are parties before the Court. The protests of the farmers are against the laws enacted, which they perceive as a threat to their livelihoods and future survival. For them, whether the laws are constitutional or extra constitutional is of little or no relevance. They consider the laws to be unjust and draconian. Their fear and distrust stem from the fact that the laws will work to favour corporate interests and work against the interest of the farmers. They feel betrayed and let down. That is not something the Hon’ble Supreme Court can adjudicate upon. That is not something that is dependent on the validity of the impugned legislations. The burden in this instance is on the Government, being a welfare government, to be responsible to its people and its economically weaker sections. The Court can only decide the issue of validity, however in a legal dispute, and under its jurisdiction, it cannot mediate on the issue of Farmers well-being and their survival. In this instance, it seems that the Parliament missed a cue as the majority will seems to be against the said enactments.Views are personal.(Author is a Practicing Lawyer at the Supreme Court of India)Subscribe to LiveLaw, enjoy Ad free version and other unlimited features, just INR 599 Click here to Subscribe. All payment options available.loading….Next Storylast_img read more

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