The Supreme Court has taken up the task of attempting to break the deadlock between the farmers & Central government in relation to the ongoing protests against three farm laws. Meanwhile, Sambhal administration in UP has withdrawn notices served on 20 farmer leaders.

Interestingly, the Supreme Court took up the responsibility of removing the deadlock while hearing a bunch of petitions seeking removal of farmers from the protest sites at the Delhi-NCR border areas.

After a detailed hearing of the matter the Court made it clear that it will not pass any orders to remove the farmers as of now. It also said that it is mooting formation of a committee to try and attempt negotiation and settlement of the issue. Below are the main contentions raised by parties during the hearing.

Right to protest is not absolute, farmers cannot hold city to ransom

One of the main arguments advanced by Senior Advocate Harish Salve was that the protesting farmers had virtually blockaded the national capital by preventing entry of vehicles and essential goods into the national capital. The protestors had occupied public roads which meant that daily commuters from suburbs like Gurgaon and Noida could not make their way into the city.

“When traffic is being stopped, goods are becoming expensive. When people are not able to travel then who will be responsible for job loss. Middle class stays in Gurgaon or Noida,” he said.

He contended that the right to protest is not absolute and while the Supreme Court has recognized the right to protest, it is qualified.

“We have to look at contouring of right. One cannot hold a city to ransom and say either government listens to us or we stop the country from living.”

Harish salve cited the threat of spread of Covid-19 due to protestors gathering without adhering to social distancing norms of wearing masks.

Salve added, “During COVID times if you are coming in such large numbers you are hampering my right to life. You need to look at contours of right to protest.”

In order to buttress his arguments, he also cited the judgment rendered by the Kerala High Court in 1997 in the case of Communist Party of India (Marxist) v Bharat Kumar in which it was held that a Bandh affects the fundamental rights of citizens and cannot be permitted though a general strike or Hartal can be allowed.

The Supreme Court had dismissed an appeal filed by the CPI(M) which was then the ruling party in Kerala. Incidentally, Salve had appeared in that matter for CPI(M).

“I was unfortunately on the other side then. The matter was thrown out by this court in 15 minutes,” Salve submitted.

Protestors should be identified and made liable

The other important argument canvassed by Salve was that there should be a clear manner in which protestors are identified so that they can later be asked to pay up in case of any damage caused to public or private property.

For this purpose, he suggested that people who gather such crowds can be made to submit a declaration saying that they are taking responsibility.

“People who gather the protesters should be made liable. I am talking about identification because groups become amorphous. Tomorrow these protesters will say ‘I am not responsible’. So, there should be identification so that they can be held liable,” he said.

No objection to committee

Punjab government represented by Senior Counsel P Chidambaram argued that it had no objections to the constitution of a committee to discuss the concerns and arrive at a solution. “We have no objection to the proposal of a committee. It is for farmers and centre to agree who will be on committee,” he said.

Chidambaram, however, took strong exception to the submissions by Salve on the contours of the right to protest.

“We have serious reservations on what Mr. Salve argued about what can be done in a democracy. We know what happened in Vienna and Hong Kong. These are serious questions of law,” he said.

He also submitted that it is the authorities who have blocked the roads at Delhi border to prevent farmers from entering the national capital.

“Who has blocked entry? They (Delhi Police and government authorities) cannot block the road and say that farmers are blocking it. They have (used) barbed wires, steel walls, and now containers (to block roads). Farmers want to enter Delhi and not block any road,” Chidambaram contended.

Chidambaram added that the Punjab government and the farmers  have serious objections to Salve’s arguments on right to protest.

Convene Parliament

Chidambaram also urged the government to convene Parliament and discuss the issue. “Convene the Parliament and discuss. Punjab will help in whatever way it can. They are not saying repeal the law but they are saying this law is not good. Government can adopt, repeal and re-enact,” he submitted.

Delhi (Rahul Mehra)

Advocate Rahul Mehra, representing Delhi government, said that the petition was mischievous and also said that Delhi government should be heard since the events impacted Delhi.

Mehra’s submissions came in the light of the fact that law and order in national capital was under the Central government and not Delhi government and the Bench was disinclined to hear the Kejriwal government. The Court, however, said that it will hear Mehra later.

Bharatiya Kisan Union (Advocate AP Singh)

Interestingly, the most important party, the farmers were represented by only one union, the Bharatiya Kisan Union (BKU).  Advocate AP Singh, representing BKU, said that India is an agricultural country and due care should be given to the concerns voiced by farmers.

“Our country is a ‘Krishi-pradhan country and not a corporate country. What about Sabka Saath, Sabka Vikas?”, asked Advocate AP Singh.

He also demanded whether farmers are not part of the Central government’s slogan of ‘Sabka saath, sabka vikas.’ “What about sabka saath sabka Vikas. Where will farmers go? Why cannot the Ramlila Maidan be given for them to protest?” he demanded.

GOI (Attorney General KK Venugopal and Solicitor General Tushar Mehta)–Blockade violating right to movement, spreading Covid

AG Venugopal maintained that the blockade of roads by farmers was violating the right to movement of other citizens.

“This blockade of road is violative of Article 19 impacting right to movement. Farmers cannot violate others’ fundamental right. They say they have come prepared for 6 months protest. All roads coming to city cannot be blocked and this happens only during a war,” Venugopal said.

All roads leading to the city cannot be blocked. It happens only during war. He also took exception to the fact that social distancing and Covid19 norms have been thrown to the wind.

“None of them wear masks and they gather in huge crowds. This will spread Covid and when they return to their villages they will spread Covid across India,” he said.

Both the Attorney General and Solicitor General maintained that the farmers were not ready to sit across the table and simply wanted an outright repeal of the laws.

“They are saying repeal this law, yes or no. They have to discuss clause by clause. They cannot say ‘repeal or nothing’,” Venugopal said.

SG Tushar Mehta said that there was, hence, the need to break the ice and things will not move forward on a ‘yes, no’ basis.

“We need someone who can break the ice. Instead of a committee adjudicating let there be people of eminence who can facilitate the dialogue. We have solutions issue wise for their concerns. We have given them in writing too. It is about sitting together. Yes or no cannot be the answer,” Mehta said.

The Centre, however, remained adamant that it will not give an assurance not to implement the laws which betray their deliberate ignorance of the farmers’ concerns.

Supreme Court: Protests can be allowed as long as it is non-violent

The Bench maintained that the right to protest is not absolute. However, it was generally not inclined to go into the aspect of whether or not protests should be allowed at this stage.

It was rather more focused on how to resolve the deadlock between the farmers and the government. This stance of the court reflected during the hearing and in the order published by the Court on its website later in the evening.

“Protest is constitutional till it does not destroy property or endanger life. We (Indians) do not have to learn about non-violent protests from anyone else. If the protests have some purpose, we will facilitate it,” CJI Bobde said during the hearing.

We are also Indian, we are familiar to the plight of farmers and sympathetic to the cause, he added. This stance was reaffirmed in the order passed by the Court later in the day.

“Indeed the right to protest is part of a fundamental right and can as a matter of fact, be exercised subject to public order. We are of the view at this stage that the farmers’ protest should be allowed to continue without impediment and without any breach of peace either by the protesters or the police,” the order said.

Formation of committee

The Court made it clear during the hearing that it intends to form a committee comprising experts and independent persons to resolve the stalemate.

“We are thinking of an independent committee with members who will hear both sides and meanwhile protest will continue in a nonviolent fashion. The committee can have P Sainath, representative of Bhartiya Kisan Union and others,” CJI Bobde remarked.

The Court also told the Central government that the protestors are unlikely to listen to the government.

“We do not think they will accept your conclusion. Let the committee decide. We have observed that you have not been successful in negotiation,” Bobde said. The order passed by the Court also said the same.

“In order to bring about an effective solution to the present stalemate between the protesters and the Government of India, we consider it appropriate in the interests of justice to constitute a Committee comprising of independent and impartial persons including experts in the field of Agriculture for the purpose. This may not be possible without hearing all the necessary parties,” the order read.

It, therefore, asked petitioners to implead all necessary parties and posted the case for further hearing after the winter vacation.

However, the Court also granted liberty to parties to move the Court for hearing by a vacation bench, if service is complete.

One of the most significant exchanges between the court and Central government during the hearing was on whether the laws can be kept in abeyance for the time being.

The Court asked Attorney General KK Venugopal whether the Centre can give an undertaking that it will not implement the laws till the issue is resolved.

“Mr. Attorney, can you assure the court that you will not implement the law till we hear (and decide the case),” CJI Bobde queried.

The AG, however, categorically refused, saying that it will then close the doors for negotiating with farmers. “No, farmers will not come for discussion then,” he said. The Bench was, however not convinced. “It is to facilitate discussion,” CJI Bode replied but did not press the issue further.