Issues and challenges pertaining to the federal structure
Government policies and interventions for development in various sectors and issues arising out of their design and implementation
Farm laws, their constitutional validity, and hope
Context: The Supreme Court of India staying the operation of new farm laws and setting up a committee of experts to negotiate with the government and the farmers.
Why farmers are protesting against farm laws: Click here and here
Why earlier government negotiations have failed: Click here
What is the long term solution advocated by experts: Click here
What has been the reaction by farmers to SC decision to set up committee?
The farmers’ unions have not reacted favourably to the formation of the experts’ committee.
They allege that the committee does not comprise entirely impartial experts. Most of them are well known and strong defenders of the farm laws, and are critical of the agitation.
Thus, the agitation being carried on by the farmers is entering a new phase.
Critical Analysis of SC’s decision
Challenge for the Committee to gain confidence of parties: For conducting negotiations with both the government and the farmers, the members of the committee ought to and should be known to have an open mind on the core issues, which alone will create a necessary confidence in the parties concerned.
Maximalist Position by farmers: The farmers have made it clear that they will not agree to anything less than the repeal of these laws. This would mean that the present agitation is likely to continue indefinitely.
SC’s decision Lacks Clarity: It is not yet clear what impact the report of this committee will have on the final decision of the Supreme Court on the question of the constitutional validity of the farm laws. So whatever the experts’ committee recommends, the question of the constitutional validity of the farm laws can be decided only after a proper hearing of the matter before the Court.
Political Investment by ruling party: While the repeal of a law is a simple legislative act, having to repeal a law in which the government has invested a lot of its prestige is not so easy.
On what basis can farm laws be further challenged in Supreme Court?
Violation of Federalism
The constitutional validity of the farm laws has been challenged in the Supreme Court mainly on the ground that Parliament has no legislative competence to enact these laws, the subject matter of which is essentially in the State list.
Violation of rules of the House
It is a universally acknowledged fact that the voting on the Farm Bills in the Rajya Sabha was not done in accordance with the rules of the House.
These rules require the Chair to order the recording of votes (division) by members even when one member demands it.
The Deputy Chairman of the House, who was conducting the proceedings at that time, did not order division although a few members openly and loudly demanded it.
Thus, there was a violation of the rules of the House in passing the Bills by voice vote when there was a demand for division.
Violation of Constitution with regard to procedures adopted for passage of bills
Article 100 says that all questions at any sitting of either House shall be determined by a majority of votes of the members present and voting.
Majority can be determined only in terms of number, and therefore what this Article requires is that all questions in the House should be determined by recording the votes of the members present and voting.
Majority cannot be determined through voice vote. In fact, the Constitution does not recognise voice vote to determine majority in a legislature.
However, deciding a question by voice vote is a practice prevailing in all legislatures. This was devised for the sake of convenience and there is always an assumption that since the government of the day has a majority, any proposal before the House has the support of the majority.
But that assumption goes when a member demands voting in the House and the Chair has, then, no option but to order the actual voting. Since this was not done and the Bills were all passed by voice vote, there is a violation of the rules as well as the Constitution (Article 100)
What are the options before the Supreme Court if and when above challenges are made?
Strike down laws on violation of Article 100 & 107
The Court can strike down the whole laws as the requirement of Article 107 has not been fulfilled. This Article says that a Bill shall not be deemed to have been passed unless it has been agreed to by both Houses.
As has been explained above, the Bills have not in fact been passed by the Rajya Sabha because the majority had not been determined in accordance with Article 100.
Invalidate the proceedings of Rajya Sabha
The Court may also invalidate the proceedings of the Rajya Sabha and send the three ‘Acts’ back to that House for further proceedings in accordance with the constitutional provisions.
If this happens, it may provide a good opportunity to the government to revisit these laws.
These can then be referred to a Select Committee of the Rajya Sabha which can invite the farmers and all other stakeholders and finally produce better Bills.
Conclusion
The issue that needs to be settled by the top court is the constitutional validity of the laws and adherence to the Procedures established by law & Constitution.
