Laws enacted without consent, now panellists selected without farmer's consent

Judges said the expert panel had no punitive powers, which is obvious because the three experts are not judges.
Laws enacted without consent, now panellists selected without farmer's consent
Bhupinder Singh said that he did not want to compromise the interests of farmers IANS

The Supreme Court setting up a four-member committee to submit a report on the ongoing farmers' strike received a setback. Bhupinder Singh Mann, a recused ex-Rajya Sabha MP, said as a farmer and a union leader, he did not want to compromise the interests of farmers throughout India, and Punjab in particular. In effect, he is admitting indirectly that the three contentious farm laws did not protect the farmers.

His recusal assumes significance because the Supreme Court set up the four-member panel which neither the farmers' unions nor their antagonist, the government, had prayed for during the proceedings. The three-judge bench comprising CJI Sharad Bobde, A.S. Bopanna and V. Ramasubramanian not only put a stay on the three contentious farm laws but said the expert panel would submit their report after eight weeks.

The judges also directed all the parties to the dispute 'shall' appear before the expert panel without leaving any scope to backtrack. Of course, the judges also said the expert panel had no punitive powers, which is obvious because the three experts are not judges.

Earlier, the names of former CJI, P. Sathasivam, who later accepted the post of Kerala Governor was suggested to head this panel. But Sathasivam turned down the recommendation because he was not fluent in Hindi. The name of former CJI, R.M. Lodha, was also recommended but this too did not fructify.

While staying these laws, the Supreme Court did exactly what it orally accused the government of doing. It set up an expert committee without consulting the farmers and made it mandatory for the agitating farmers to appear before it. Not doing so may invite a charge of contempt of court.

So, while the government has refused to repeal the three contentious alleged anti-farmer laws, the Supreme Court has put the farmers in a bigger dilemma. The farmers are damned if they appear before the expert committee because nothing remains in their agitation once they do so. They are damned if they don't appear before the committee because they can be accused of contempt of court and spreading anarchy by trying to overthrow Parliament's supremacy.

During the hearing on pleas questioning the constitutional validity of the three farm laws enacted by the government, the three-judge bench inquired into allegations made by one of the parties that Sikhs for Justice (SFJ), an organisation banned by India, was involved in the ongoing protests.

In response, Attorney General KK Venugopal said, "We have been informed there is a Khalistani infiltration in these protests," noting that he would file an affidavit that included inputs from the Intelligence Bureau (IB). Another senior advocate arguing on behalf of the Indian Kisan Union – which is in favour of the new laws – had previously alleged that certain banned organisations had been funding the protests.

What is 'Sikhs for Justice'?

Founded in 2007, Sikhs for Justice (SFJ) is an anti-India secessionist body operating from the USA that calls for the secession of Punjab – as a homeland for Sikhs or "Khalistan", which means land of the pure – from India. It is led by Gurpatwant Singh Pannun, a graduate from Panjab University, now a practising attorney in the USA. Pannun also reportedly acts as the group's legal adviser.

The outfit has even organised a 'Referendum 2020' to "liberate Punjab from Indian occupation". Pannun declared the SFJ decided to hold the "first-ever non-binding referendum among the global Sikh community on the question of secession from India and re-establishing Punjab as an independent country" during its London Declaration in August 2018.

The SFJ has a nefarious aim to dismember India to achieve the evil aim of the high priest of terrorism, Sant Jarnail Singh Bhindranwale, who was killed by the Indian Army in 1984. Nearly 400 people lost their lives, including 87 soldiers. Later, a London court convicted four Sikhs for trying to murder Lt Gen Kuldeep Singh Brar who led what was known as Operation Bluestar in 1984.

Polling for the referendum, as per its website, was expected to take place in November 2020 across several cities in North America, Australia, Europe, New Zealand, Malaysia, Philippines, Kenya, Singapore and the Middle East. The Canadian government opposed this ridiculous referendum which was applauded by Punjab Chief Minister, Amarinder Singh.

In July 2019, the Indian government placed a ban on SFJ under the Unlawful Activities (Prevention) Act. The ban was buttressed by a dossier prepared by the Punjab Police which listed a series of social media posts made by SFJ calling for secession. Almost a dozen cases have been registered against the SFJ, including three cases of sedition in Punjab.

The Punjab Police also alleged the group shared a domain name and source content with a Karachi-based website. Pannun has also previously called upon Pakistan Prime Minister Imran Khan to support the SFJ's referendum. There can be no doubt the SFJ will resort to deceit, subterfuge and terrorist acts to dismember India at the behest of Pakistan and China which support it.

The SFJ, led by Pannun, filed several cases against Indian politicians, mostly in the USA, particularly against former Prime Minister Manmohan Singh, Prime Minister Narendra Modi, former Madhya Pradesh Chief Minister Kamal Nath and Congress President Sonia Gandhi over the 1984 anti-Sikh riots as well as the 2002 Gujarat riots. Hence, the SFJ's alleged involvement in the farmers' agitation is being used to discredit what is otherwise a legitimate agitation to repeal the three farm laws.

Three laws that have passed without talks

Allegations that the microphones of opposition MPs were muted when the farm laws were passed have also been levelled against the government. Whether true or false, what is a fact is these three farm laws were not referred to either a standing committee or a select committee in either the Lok Sabha or Rajya Sabha before getting Presidential assent via the ordinance route. This implies these laws were passed by the government, for the government and with the consent of the government alone.

This is why the farmers have accused the Supreme Court of trying to break their strike by setting up an expert committee comprising men who avow support to the three contentious laws. Their predicament of justifying before a panel set up without their consent on why 'laws enacted without their consent' must be repealed, is heart-rending. Senior advocate, Dushyant Dave, said on a news channel that he sought a day's time to seek instructions from the farmers' unions to which the CJI did not accede.

In a democracy like ours, the preamble declares the people of India are sovereign. Unlike the government or Parliament which derive its sovereignty from the people of India. By this logic itself, Parliament has to enact laws with the people's consent, and not the government's consent. Which allegedly uses its absolute majority as an unchecked authority to steamroll laws through Parliament without consensus. CJI Bobde has orally said that the Supreme Court cannot direct Prime Minister Narendra Modi what to do because well, an absolute majority implies absolute authority.

So, has the order really been a massive setback for the government? No doubt, the CJI remarked, "We are extremely disappointed in the way you are handling the situation...you made a law without enough consultation, resulting in a strike. Many states are up in rebellion against you...you say you are negotiating. What talks? What is going on..?"

The CJI's oral comments appeared to have validated a view that believes about these farm laws that were passed without consulting the farmers. But these spoken remarks were not recorded in the 11-page order of the three judges. We must remember that judges' signed orders are implemented but not their oral observations.

Going by this yardstick, the CJI's oral observations have not been recorded for posterity in their 11-page order. Now, primary evidence is what the court records in its orders, and not scattered media reports with zero legal value? And so, the Supreme Court may have unwittingly perhaps, again gone soft against the government, by unintentionally breaking the farmers' agitation while setting up this committee.

The composition of the committee, like the alleged anti-farmers' laws, appear not to have been discussed with the agitating farmers' unions. We often forget that the composition of the Supreme Court, (like the four-member committee it has set up), is selected and not elected. Selections whether on pure merit or otherwise are inherently anti-democratic. That is why the farmers are exercising their democratic right not to appear before the four-member committee.

Why? To select one example, the President of the Shetkari Sanghatana, the largest farmers' union in Maharashtra, Anil Ghanwat is an agriculture graduate, who worked with the legendary Sharad Joshi since the 1990s. Like his mentor, Ghanwat has been a votary of liberalisation and open-market policies in agriculture, which form the core of these alleged three anti-farmer laws.

In effect, Ghanwat, like his two colleagues, is not coming to the negotiating table with an open mind but with a conviction that India needs these three contentious laws which the farmers oppose. Simply put, it is like accusing a person of a crime and asking him to prove his innocence. In this case, the accuser is the government, and the accused are the farmers.

Despite the Shetkari Sanghatana supporting the three alleged anti-farmer laws, several state governments outright refused to notify these laws. This move is only because agriculture is on the state list of the seventh schedule in the Constitution. The Modi government used its residuary powers under Article 248 of the Constitution and entry 33 of the concurrent list for the so-called benefit of the country to pass these contentious laws.

Similarly, the farmers allege the Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Act for contract farming protects big corporate interests and not their own. The government has allegedly abdicated its role of protecting small and marginal farmers from giant corporates by guarantees leading to one-sided contracts.

Farmers' experience of contract farming has arguably led to some of them committing suicide. And finally, the third law amending the Essential Commodities Act permits hoarding of stocks and removes price control mechanisms which will obviously have a direct impact on higher consumer prices. On this, there are no proposals from the government. Absolute majority leads to unchecked authority.

Dr Olav Albuquerque holds the M.Sc, LL.M and Ph.D degree in media law from the University of Mumbai. He is a journalist-cum-lawyer of the Bombay high court. The views expressed in this article are the authors' personal views. The facts and opinions in the article do not reflect TBC's views and take no responsibility for them.

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