By Lokendra Malik
“You have strangulated the entire city, now you want to come inside the city! The residents around, are they happy with the protest? This business should stop. You are obstructing security and defence personnel. This was in the media. All this should stop. There is no point in protest once you come to the court challenging the laws,” observed a two-judge bench of the Supreme Court led by Justice AM Khanwilkar while hearing a case relating to farmers’ protest at Delhi borders against three farm laws passed by Parliament last year. The Court went onto state that the petitioners who have challenged the constitutional validity of the farm laws in the apex court should have trust in the Court and there was no point in doing satyagraha. The Court also came down heavily on farmers who are alleged to have blocked the public roads at Delhi-NCR borders.
The observations made by the apex court have ignited a debate about the citizen’s constitutional right to protest against the policies, laws, and programmes of the government that violate people’s rights in a democratic system. The different benches of the Court have spoken differently on the issue.
Last year, a bench of the Supreme Court led by then Chief Justice of India SA Bobde had categorically observed that farmers have a constitutional right to protest against the government and the Court can’t stop them from exercising their right. “We clarify that this court will not interfere with the protest in question. Indeed, the right to protest is part of a fundamental right and can, as a matter of fact, be exercised subject to public order. There can certainly be no impediment in the exercise of such rights as long as it is non-violent and does not result in damage to the life and properties of other citizens and is in accordance with law,” observed the Court.
After a few days of making these remarks, the apex court stayed the operation of three-farm laws, Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Act, 2020; Essential Commodities (Amendment) Act, 2020; and Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Act, 2020 in January this year. Also, the Court constituted a committee, comprising four agriculture experts, to examine the farmers’ grievances and submit the recommendations to the Court.
However, the farm unions rejected the idea of the committee which continued its work and submitted its recommendations to the Court within the prescribed time. Surprisingly, the Court has not yet made the recommendations of the committee public and the matter is still pending for final hearing. The Court may decide the constitutionality of the farm laws on a priority basis.
It is nobody’s case that the farmers have an absolute constitutional right to protest in the country. The Constitution does not give any such right to the people, including the farmers and nobody is claiming such kind of liberty. Under Article 19(2) of the Constitution, the State has the power to impose reasonable restrictions on the exercise of such rights to protect the collective interests of society. In several cases, including the famous Ramlila Maidan case, the Supreme Court has reiterated this view.
Farmers are doing their protests as per the constitutional scheme peacefully. The central government is responsible for creating this situation. The Union government passed the three-farm laws at rocket speed without having any meaningful consultation with the farm associations and state governments that deal with the agriculture issues. It is the centre that compelled the farmers to start an agitation against the farm laws that affect their interests adversely.
Hundreds of thousands of farmers are sitting on dharna at Delhi’s borders for the last ten months. Sadly, more than 600 farmers have lost their lives in these protests. But the government seems least bothered about their problems. The Court has also not said anything about those who lost their lives during this agitation. There have been several rounds of discussions between the central government and the farm unions but no solution has yet been achieved. The Modi government has made it a prestige issue and seems to be reluctant to repeal the farm laws. On the other hand, the farm associations have also decided to continue with the agitation until the three farm laws are repealed by the centre and their demand for a legal guarantee for the Minimum Support Price for farm produce is not met. As of now, there is a severe deadlock and there does not seem any possibility of an early solution through the dialogue between the government and the farm associations.
Now, the ball is in the Supreme Court. The petition relating to the constitutionality of the three-farm laws is pending in the Court for more than ten months. The expert committee constituted by the Court has also submitted its report, but the Court could not get time to hear the matter. The Court is also hearing the petitions of some citizens who have valid objections against the blockade of public roads by the protesting farmers.
In this kind of scenario, the Court needs to take a balanced view about the whole issue given its constitutional role, reputation and responsibility to protect the people’s fundamental rights, rule of law and constitutionalism in the country. The Court is the last hope for the millions of farmers. People knock on the doors of the Court when they do not get any relief from other branches of the state. In a democracy, the people have all the rights to build pressure on the government to persuade it to withdraw its laws and policies that violate people’s interests. The Court cannot pass a gag order against people’s protest.
India is the land of civil protests.
We got freedom through the protests launched by our great founding fathers, such as Mahatma Gandhi, Pandit Jawaharlal Nehru and Dr BR Ambedkar. Then how can the farmers be wrong? The right to protest available to the people under the Constitution is not just necessary in and of itself it is also inalienable from the articulation and assertion of other constitutional rights and freedoms. Admittedly, all fundamental rights are subject to reasonable restrictions.
The farmers are not above the law but the Court should have been more sensitive about their problems, struggle and the government’s attitude. The farmers need dignified treatment given their constitutional rights, duties and contribution to the national economy and development. Protesting peacefully against the government is not a crime in this land of Bapu, who was the prophet of civil protests.
The Supreme Court of India has a glorious record of fundamental rights’ protection through the instrument of Public Interest Litigation. Barring a few instances, the Court has always stood with the people when their rights are violated by the State. Being a guardian of the fundamental rights of the people, the Court has a constitutional duty to heal the farmers’ wounds and save them from State-sponsored persecution and harassment.
Millions of farmers are looking towards the Court for getting justice. I think the Court will not disappoint them. The farmers deserve empathy, not rebuke. The Court should not allow the government to escape its responsibility. A timely adjudication of the farm laws is the need of the hour.
Let me conclude this note with these thought-provoking words of the eminent legal philosopher Professor Ronald Dworkin: “Free speech is a condition of legitimate government. Laws and policies are not legitimate unless they have been adopted through a democratic process, and a process is not democratic if the government has prevented anyone from expressing his convictions about what those laws and policies should be.”
—The writer is Advocate, Supreme Court of India