Whose farms? whose laws? whose solution?

Ever since 12th January 2021, when the Supreme Court of India in Rakesh Vaishnav & Ors. v. Union of India & Ors., has "stayed" the implementation of the three central farm laws, there has been an intense debate on several constitutional and policy issues leading to two opposing views. One view is that it is a victory for farmers against the mighty Central Government, whereas, the other view is that it is a victory of Central Government, which, instead of ending the farmers protest forcefully, used the judicial platform, which might lead to end of farmers protests.

Legally speaking, courts cannot "stay" the implementation of any statute, because it is a court's-own-carved out principle that a statute enacted by the legislature, at the first blush, is presumed as constitutionally valid, until it is "declared" as unconstitutional after judicial review.

Nonetheless, in rare circumstances, courts can "stay" the implementation of a statute as pointed out by the Supreme Court in Health for Millions v. Union of India, (2014), that "… the operation of the statutory provisions cannot be stultified by granting an interim order except when the court is fully convinced that the particular enactment or the rules are ex facie unconstitutional and the factors, like balance of convenience, irreparable injury and public interest are in favour of passing an interim order".

Generally, when an issue is sub-judice, no views should be expressed, but the Supreme Court's unusual "stay" on implementation of farm laws warrants examination of certain fundamental issues. A look at the relevant factual and legal matrix shows that - it is too early to say that the three farm laws are ex-facie unconstitutional, because, firstly, they cannot be said to be beyond Parliament's competence.

The Parliament, along with State legislatures, is competent to enact laws on "trade and commerce…" by virtue of entry 33 of the concurrent list of the seventh schedule to the Constitution, while the State legislatures alone are competent to make laws on "agriculture" by virtue of entry 14 in the State list. As these farm laws deal with "trade and commerce" in Agriculture, Parliament can be said to be competent to enact these farm laws.

At the same breath, it is equally possible to say that 'agriculture' which is a State entry, is also encroached upon by the Centre through colour able legislation. It is exactly for this reason that one of the petitioners has challenged the entry 33. Secondly, the farm laws, atleast on face of them, do not seem to violate any of the fundamental rights of the farmers. All that the Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Act, 2020, says is that farmers may enter into agreements with others before planting/rearing of their produce.

It is needless to mention that such agreements must fulfill all the conditions of a valid contract under Indian Contracts Act, 1872. The Essential Commodities (Amendment) Act, 2020 takes away the Centre's power to impose stockholding limits on foodstuffs except under "extraordinary conditions", like war, famine, etc., which shouldn't concern the farmers at all, because they are nowhere related to stocking restrictions.

Coming to the most-controversial Farmers Produce Trade and Commerce (Promotion and Facilitation) Act, 2020, which is the main cause of protests, it allows the farmers to sell their produce outside the Agricultural Produce Market Committee (APMC) mandis. Many farmers fear that they would lose out the security of procurement by Government of their produce at minimum support price (MSP).

It may be noted that APMC mandis are not totally shut. Moreover, the Government is assuring that it would continue with the procurement at MSP which has been just a Government's policy without any statutory basis. Thus, none of the three laws appears to be ex-facie unconstitutional .

Balance of convenience, irreparable injury to farmers and harming public interest cannot be determined merely on surmises and conjectures without any actual proof, because these are the experimental economic statues enacted with an aim of ushering the modernity in trade and commerce for Agricultural sector.

Such reforming statues are upheld by the UU Supreme Court under "commerce clause" in cases like Heart of Atlanta Motel, INC v. United States [79 US 241 (1964)]. While staying the implementation of farm laws, our Supreme Court should have taken cognizance of its accepted observations of the US Judge, Justice Brandeis, who in New State Ice Co. v. Ernest A. Liebmann [285 US 262 (1931)], observed that "to stay experimentation in things social and economic is a grave responsibility. Denial of the right to experiment may be fraught with serious consequences to the Nation."

While one may argue that the apex court's sole intention in passing the interim order was an attempt to facilitate a fair, equitable and just solution to the problem, but, the court should have probably considered the following issues- 1) whether by going beyond constitutionality of farm laws, it tried to decide political questions? 2) whether lakshmanarekha was crossed by playing the role of a mediator? 3) whether by ordering continuation of MSP and status quo on farm holdings, which questions were not before court, the court tried its hand at judicial governance? and finally, 4) whether the court should have considered the stand of all the stakeholders and unions which are not agitating, despite few were before it, before passing such stay orders?

On the other hand, questions are raised on impartiality of the court constituted expert committee, the varying stands of different farmers unions, and the inflexible demand of opponents of farm laws to repeal them. In this context, it is trite to recollect the oft quoted phrase from the famous English decision, Rex v. Sussex Justices, ex parte McCarthy [(1924) 1 KB 256], where Lord Hewart, C.J., said "Not only must justice be done, it must also be seen to be done".

Stay of farm laws without a reasoned order exhibits unwarranted judicial over-activism. To put an end to this impasse, it is suggested that the Centre may declare the three farm laws as "model laws" by giving discretion to the States either to follow them or to have their own laws to cater to the needs of local farmers in this matter. This will effectively protect the federal spirit and also will respect the distribution of legislative powers under the Constitution. Any attempt at judicial solution to farmers' agitation may certainly boomerang, exposing the inherent limitations of judicial governance.

(The authors are Professor, University College of Law, Osmania University and student, University College of Law, Osmania University respectively)