Guest Post: The Absence of Reason – The Supreme Court’s Extraordinary Order on Farm Laws

[This is a guest post by Siddharth Shivakumar.]


On the 12th of January, 2021 the Supreme Court of India passed an extraordinary Order staying the implementation of the Farmer’s Produce Trade and Commerce (Promotion and Facilitation) Act, 2020, the Essential Commodities (Amendment) Act, 2020 and the Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Act, 2020 (hereinafter collectively referred to as ‘farm laws’). Moreover, the Supreme Court also appointed a four-member committee for the purpose of listening to the grievances of the farmers and the views of the Government and to make necessary recommendations.

In this piece, I argue that the Supreme Court has erred in its decision to stay the implementation of the farm laws, since it goes against established precedent, that enunciates the doctrine of presumption of constitutionality of statutes. Further, I argue that the Court has not provided any justification for the stay apart from those that I have inferred from the Order.  

According to the Supreme Court, three kinds of petitions were made before it. The first batch of petitions argued that the farm laws are unconstitutional. Another batch of the petitions were filed by individuals claiming that these unending protest by farmers violated their right to move freely and their right to carry out their trade. The third batch of petitions surprisingly supported the farm laws as being constitutional as well as beneficial to farmers. Without passing judgment on the merits of these petitions, it is extraordinary that the Supreme Court entertains petitions wherein the petitioners argue in favour of a law. However, considering that the Court can now arbitrarily stay the implementation of laws, we might see more such petitions where individuals feel the need to file a petition in favour of constitutionality, appreciating the work of the law-makers!

After describing the nature of the petitions, the Court describes the events on the ground at protest sites. This background is crucial as it seems to be the only reasoning provided by the Court for its Order. In this context, the Court seems to adopt a paternalistic view on women protestors, who “are exposing themselves to serious health hazards posed by cold and covid”. While these risks are real and dangerous, clubbing the protesting women with senior citizens and children perpetuates the already problematic stereotyping of women.  The Court even seems thrilled that one of the parties was keen on dissuading women along with senior citizens and children form joining the protests. Further, the Court acknowledges that the negotiations between the farmers and the Government have failed. Therefore, it appears that the Supreme Court has stepped in to perform the role of the executive.

To diffuse the tension between the farmers and the State the Court has not only stayed the implementation of the laws but also has set up a 4-member committee. According to the Court, they do not wish to stifle protests but they feel that such an extraordinary verdict will be considered as a victory by the protestors and will encourage them to get back to their livelihoods. This seems to be the only reasoning that can be inferred from the Order for staying the implementation of the laws. This is concerning for the following reasons. Firstly, the Supreme Court has not just allowed for the law-making process to be hijacked but has also set a precedent for protestors. An unelected set of judges can now stay the laws enacted by the elected representatives without any legal reasoning except for the fact that thousands of determined protestors refuse to budge. Secondly, it is not the Court’s place to encourage protestors to return to their livelihood. It is the duty of the executive to handle the law-and-order issues that arise because of such protests. No Court should usurp this power in such a manner with the aim of encouraging protestors to get back to their livelihoods. The job of the Court is to judge the constitutionality of these petitions or even the constitutionality of the State action with regard to these protests.

Apart from this, the only other justification provided by the Court that comes remotely close to being called a legal argument for staying the implementation of the laws is in Para 10 of the Order. In this paragraph, the Court states that it “this court cannot be said to be completely powerless to grant stay of any executive action under a statutory enactment.”

It is bizarre that the Court’s only justification is to split hairs by differentiating between staying the implementation of the statue and staying the statue itself. The Court has relied on the recent case of Dr. Jaishri Laxmanrao Patil v. The Chief Minister and another to argue that such a stay can be granted. This is a flawed argument advanced by the Supreme Court for the following reasons. Firstly, in Dr. Jaishri Laxmanrao Patil Case (Civil Appeal No 3123 of 2020), the Supreme Court stated:

“However, if the Court is convinced that the statute is ex-facie un-constitutional and the factors like balance of convenience, irreparable injury and Public Interest are in favour of passing an interim order, the Court can grant interim relief. There is always a presumption in favour of the constitutional validity of a legislation. Unless the provision is manifestly unjust or glaringly un-constitutional, the courts do show judicial restraint in staying the applicability of the same.…However, there is no absolute rule to restrain interim orders being passed when an enactment is ex facie un-constitutional or contrary to the law laid down by this Court.”

Therefore, ex-facie unconstitutionality and factors like balance of convenience, irreparable injury and Public interest are considered by the Court to grant such a stay. The Court in this order has failed to provide even one reason to show that the farm laws in question are unconstitutional. Forget providing a reason, they have not even hinted at unconstitutionality of the laws apart from suggesting that a batch of petitions challenge constitutionality.

Secondly, the Court has acknowledged the precedents cited by the Attorney General, yet it has failed to apply these precedents to the present matter. For instance, in, Health For Millions v. Union of India [(2014) 14 SCC 496],the Supreme Court quoted the following passage from Bhavesh D. Parish v. Union of India [(2000) 5 SCC 471]:

“When considering an application for staying the operation of a piece of legislation, and that too pertaining to economic reform or change, then the courts must bear in mind that unless the provision is manifestly unjust or glaringly unconstitutional, the courts must show judicial restraint in staying the applicability of the same. Merely because a statute comes up for examination and some arguable point is raised, which persuades the courts to consider the controversy, the legislative will should not normally be put under suspension pending such consideration. It is now well settled that there is always a presumption in favour of the constitutional validity of any legislation, unless the same is set aside after final hearing and, therefore, the tendency to grant stay of legislation relating to economic reform, at the interim stage, cannot be understood.” [Emphasis Supplied by Author].

Let us not forget that the farm laws are economic reforms in the agricultural sector. They may or may not have a desired impact. Yet irrespective of the impact, the Courts must be wary to stay such laws even if they are unjust or unconstitutional. A stay is granted only when these laws are manifestly unjust or glaringly unconstitutional. Therefore, especially in this particular case where economic reforms are in question, the Court ought to have demonstrated greater restraint and caution rather than an absence of reason.

Irrespective of your position on the farm laws, there should be no doubt that by ignoring the doctrine of presumption of Constitutionality (even law students are aware of this), the Supreme Court has acted with impunity to pass an Order without providing any legal justification for its decision. The Constitution Court through this Order has reduced its majesty by becoming the self-appointed patriarch of the Nation! 

One thought on “Guest Post: The Absence of Reason – The Supreme Court’s Extraordinary Order on Farm Laws

  1. The apex court definitely passed the farm law order with best of intentions; yet the author view is correct that the order establishes a bad precedent owing to lack of cogent reasons.

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