Guest Post: A Critique of the Supreme Court’s Farm Act Order – II

[This is a guest post by Aakanksha Saxena.]

The Supreme Court recently passed an order in discrete batches of petitions arising out of (1) the Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Act, 2020; (2) the Essential Commodities (Amendment) Act, 2020; and (3) the Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Act, 2020, (‘farm laws’), and, the protest by farmers against these laws. Challenges have been filed to the constitutional validity of the laws. An initial petition filed was a PIL by a law student seeking removal of the protesting farmers from the Delhi borders. Another batch of these petitions deserves mention is that it reportedly “supports the validity” of the farm laws – something which is a fundamental presumption in the domain of judicial review.

The Order in question presents myriad concerns. While appreciating that the farmer’s protests have been peaceful, it is insinuated in the same vein that they may be a site of fomenting units which are banned for their secessionist tendencies – on the basis of a mere averment in an intervention application, which was nonetheless pressed by the Attorney General (although, in the final order, directions have been passed to file an affidavit). Further, while noting specifically the absence of counsel representing the farmers, the Bench has proceeded to pass orders indubitably affecting their rights. It appears that the Court has recognised the need for stakeholder participation and consultation as an essential step in policy making, by appointing the expert Committee which is to receive views from all the stakeholders involved; however, what failed to be appreciated is that such a process was integral and ought to have been implemented much prior in time than this hearing, and in any event prior to the enactment of the farm laws. Given the large-scale protests and evident grievances raised by the farmers, the decision-making process leading up to the farm laws could have benefited from stakeholder participation and could also perhaps have avoided agitation and litigation of this nature. The failure to conduct stakeholder participation has clearly led to a situation enabling intervention by the judiciary in the realm ordinarily required to be occupied by the legislature and / or policy makers. Much has been written and said about the impact of the Court’s Order on the farmers’ protests and the natural political posturing and consequences, but this post shall deal with one terse paragraph of the Order which touches on the aspect of judicial review, i.e., whether the Hon’ble Court could pass an interim stay of the impugned Farm Laws.

A reading of the Order discloses that the reasons which weighed with the Bench for staying the operation of the farm laws could be – that negotiations between the farmers’ groups and the Government had been fruitless, and an expert committee to act as a negotiator between the sides would “create a congenial atmosphere”, that some of the farmers bodies’ agreed to go before a Committee, and that senior citizens, women, and children would then be discouraged from protesting which was posing grave risk to these groups. There is not a single statement or suggestion in the Order that the farm laws may, prima facie, be unconstitutional.

Juxtaposed against the Court’s reasoning for the stay, this post seeks to examine the constitutional standards laid down in our jurisprudence for the stay of legislation, particularly economic policy legislation (the standard being somewhat less stringent than laws touching on fundamental and civil rights). It needs to be emphasised that this case was apparently made out by the Attorney General, and this post shall deal with some of those very same precedents that were cited at the Bar, being the inescapable law laid down by the apex court.

In its decision in Siliguri Municipality v. Amalendu Das, the Court was at pains to point out to the concerned High Court the need for self-discipline when it came to interim orders of stay, when the question arose in relation to tax recovery under narrowly applicable state legislation. The Court stressed on the need for a bench to consider the exigencies of the situations and strike the delicate balance. Subsequently, the Court while considering a challenge to Section 9 of the Reserve Bank of India Act, in Bhavesh D. Parish v. Union of India, then went on to consolidate the standard of judicial review by completely deferring to the legislature on economic policy and specifying that any interdiction by courts therein could lead to ramifications which could even retard progress by years. It was expounded that the Court ought only interfere where it was satisfied that a view in the legislation was such that it was “not possible to be taken at all”. This has been reiterated in the case of both legislation and executive policy, when the Court in Bajaj Hindustan Ltd. v. Sir Shadi Lal Enterprises Ltd. clearly held that the court must leave the authority to decide its full range of choice within the executive or legislative power, and in matters of economic policy, the court gives a “large leeway” to the executive and the legislature. In Swiss Ribbons v. Union of India, the Supreme Court while considering a constitutional challenge to provisions of the Insolvency and Bankruptcy Code, expounded this principle as a “Judicial Hands off qua economic legislation”, which flows from SCOTUS Justice Holmes’ celebrated dissent in Lochner. It became the established position that legislatures may do as they feel fit unless restrained by constitutional prohibition, which prohibitions courts cannot extend merely by reading into them conceptions of public policy.

In Health for Millions, the concerned High Court had stayed the operation of Rules in Article 226 writ petitions, by issuing a single-paragraph order stating that ad-interim relief was granted since the Union of India had failed to appear and/or file reply. The Supreme Court strongly reiterated that passing such stay orders was at odds with the need for a court to refrain from staying the operation of legislation, unless the court is convinced that the legislation is patently unconstitutional and factors such as balance of convenience, irreparable injury, and public interest, favour interim stay. It therefore became necessary to set aside the interim impugned order given that the High Court did not consider any of these requirements.

The judgement in Dr. Jaishri Laxmanrao Patil v. The Chief Minister & Anr. referred to in the Order also needs distinguishing for several reasons – it was in a civil appeal, from an order of the Bombay High Court i.e. a constitutional court which had adjudicated upon the validity of the legislation in question, arguments were extensively heard both in support of and against the order under challenge, merit was found in the argument to refer the question of law to the constitution Bench, and it was in that context that the Court found it was not restrained in passing orders to cover the interregnum before the larger Bench presided. At the very least the Bench in Jaishri Laxmanrao Patil engaged with arguments made for and against the stay of the operation of the law, examined the law and the exigencies, and reached a prima facie view on its validity before staying its operation. However, the same cannot be said of the Farmers’ Laws Order, where ostensibly, the hearing was being held in order to ameliorate the heightening tensions and pressure on the government arising out of what were admittedly peaceful, non-violent protests. Of highest concern should be the manner in which the stay was granted in the face of overwhelming binding precedent requiring a constitutional court to expressly reach a prima facie view of unconstitutionality of legislative measures before staying their operation and/or passing any interim measures. In view of the case made out for urgent hearing, the Supreme Court instead of hearing the challenge, chose to appoint a negotiator, and a committee of experts as a negotiator at that. It does not fall to the Supreme Court to direct such committee appointments and stakeholder participation at the stage of a constitutional challenge. It cannot fall from the Supreme Court to stay the operation of a law, de hors a prima facie view of its unconstitutionality, and merely in order to facilitate a political negotiation. The potential effect on future courts is unimaginably dangerous.

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