The 11-page order of the Supreme Court on the bunch of petitions it was hearing on the farm laws substantiates in full measure the skepticism of the protesting farmers and their organisations about this process.
Is the order really "a huge blow to the Government", "a major setback to the Government" as described by most of the media? The comments made by the apex court on the first day of hearing certainly created such an impression. For example, the court told the government's top judicial officers: "We are extremely disappointed in the way you are handling the situation...you made a law without enough consultation, resulting in a strike. Many states are up in rebellion against you...you say you are negotiating, talking, What talks? What is going on..?" Unusually strong comments from the court which more than validated the criticisms by the farmers that they were not consulted. But were these initial comments of the court reflected in the actual orders passed a day later?
The Supreme Court orders have to be seen in the context of the actual demand of the kisan struggle for repeal of the laws and the adamant stand of the government against such withdrawal and for minor cosmetic changes. Eight rounds of negotiations have failed. But while the government faces a public backlash, including uncomfortable questions from its own allies, support for the farmers is growing.
In such a situation, what are the main points of the Supreme Court order?
One of the main operational points of the order which has been the focus of media reporting is that implementation of the three farm laws has been stayed till "further orders." When implementation of extremely unjust laws is stayed by a court, it is surely a good thing. But it has to be further examined whether the stay is conditional and if so, what are the conditions and who will it benefit.
The stay is not linked to further hearings of any of the substantive issues raised in the petitions or by the farmers in struggle. The stay is linked to the setting up of an "expert committee" and the duration of the stay is timebound till its recommendations are received (a deadline has been set of two months after the committee's first meeting). Point 8 of the order specifically links the formation of the committee with the stay: "the negotiations between the farmers bodies and the Government have not yielded any result so far. Therefore the constitution of a committee of experts... to negotiate... may create a congenial atmosphere. We are also of the view that a stay of implementation...may assuage the hurt feelings of the farmers...and encourage them to come to negotiations with faith and confidence."
None of the petitioners had asked for a committee. The representatives of lakhs of farmers who are protesting across the country against the law had on the contrary made it clear that they were opposed to the formation of such an expert committee as it would "only delay and divert" issues which concerned government policy relating to farmer interests. The government had not asked for the committee either, at least not publicly, but was quick to accept it once the Supreme Court suggested it.
The Supreme Court, in spite of the public statements of the farmers, went ahead and set up the committee on its own initiative. Thus, while it had rightly criticized the government for not consulting the farmers, its own action in setting up a committee was done without consultation with the farmers.
The orders go even further. It is made mandatory for farmers to appear before the committee and join the deliberations. In Point 14, it is stated, "The representatives of all the farmers' bodies, whether they are holding a protest or not and whether they support or oppose the laws shall participate in the deliberations of the Committee and put forth their view points. The Committee shall, upon hearing the Government as well as the representatives of the farmers' bodies, and other stakeholders, submit a Report before this Court..."
The use of the words "all" or "shall" leave no room for choice. In other words, farmers in struggle are saddled with an expert committee they had not asked for and have to appear before it whether they wish to or not. The time framework for the committee also makes quite clear the life of the stay on implementation of the farm laws. The committee has to give its recommendations within two months. Give or take another month for the court hearings and the inevitability of the court accepting the recommendations of its own appointed committee, the stay will end, either way in a maximum of about three months.
But then comes the real whammy. Who are the members of the committee to whom the apex court has given such powers? Were any of them associated with the seminal work and comprehensive recommendations made by the Swaminathan Commission? Have any of them even remotely studied the negative impact of so-called reform policies leading to farmer suicides? Is there anything in their expertise which can be considered sensitive to the concerns of farmers? The choice of the Supreme Court is four gentlemen who have been vocal, aggressive, consistent supporters of the farm laws, deadly opposed to public procurement, minimum support prices or indeed any kind of market regulation. A committee which is supposed to bring confidence among farmers has not even one member whose views have not been diametrically opposed to the concerns being expressed by farmers. They are the pillars of the policies being pushed by the government and opposed by the farmers. Who suggested their names to the court? Did the court not run an independant check on their suitability? There is no subtlety here, not even a fig leaf of neutrality as far as their opinions on farmer issues are concerned.
In Point 15, the conclusion of the order, the court expresses its approach to the ongoing protest. It states "while we may not stifle a peaceful protest, we think that this extraordinary order of stay will convince farmers bodies to convince their members to get back..." There are two points to be noted here. The use of the word "may" not "shall" implies that the approach of the court may change towards "not stifling" the protest and secondly, the court expects that this "interim" stay is enough for the farmers to pack up and go home.
Thus the court has made it clear that in its opinion, a temporary stay of a few months, even though it is linked to the conclusions of a committee of known supporters of the very farm laws being opposed by the farmers, in whose deliberations the farmers must necessarily participate is extraordinary enough to end the farmers protest. If anything is extraordinary, it is this assumption of the court!
For the farmers, the price of the stay on implementation of the farm laws is indeed very high.
There are other issues in the order which raise further doubts and apprehensions.
It is known that this government perceives all protest or dissent as an anti-national conspiracy. We have seen how victims of violence become the accused in this perverted understanding of a government which has excelled in formenting divisions and hatred. In this wholly secular protest of farmers, the Modi Government and BJP leaders have used the most outrageous and novel terms of abuse against the farmers from calling them agents of Pakistan and China to being Khalistanis to being picnickers enjoying chicken biryani to being purveyors of bird flu to being looters and thieves...the list is endless. As the saying goes, such absurd charges would be laughed out of court.
But in this Supreme Court order, the branding of the movement found its echo in Point 6 of the order. An accusation by one of the pro-government petitioners that the farmers' movement has been "infiltrated" and funded by a banned pro-Khalistani organisation was promptly supported by the Attorney General. Even though the court lauded the peaceful nature of the protest, it found this accusation important enough to merit a mention in its order. The government has been asked to file an affidavit with the details. We know what happened in the Bhima Koregaon case, the anti-CAA protests, which were branded anti-national and known critics of the government were arrested under draconian laws. Already many cases have been filed against the farmers and their leaders. The implications of Point 6 of the court order could turn ominous given the intolerance of the government to the protests.
The court expressed concern about the plight of the farmers, the deaths and suicides. It asked why women and senior citizens are part of the protest. Perhaps the court is unaware that a large percentage of the female population in India is directly involved in agricultural operations - women as farmers hold up more than half of the sky over rural India. So if there are laws brought which have a devastating impact on farmers, women will be as affected, enraged, as committed to struggle, if not more, than their male counterparts. Patriarchal notions, cultures and practices deny women independant agency in decisions they take. Women are in the struggle braving the cold and all the hardships of their own volition and choice, not because they have been asked to by men. They cannot be told to leave the protest because they are women, in the name of concern over their health.
In the course of the hearing, there were comments made by government lawyers which were straight lies aimed at misleading the court. For example, it was stated that the protests were confined to one or two states when it is known that every day thousands of farmers across the country are protesting the farm laws in their respective states. It was also stated that the laws were strongly welcomed in southern states like Kerala when it is public knowledge that the State Assembly unanimously adopted a resolution asking the central government to withdraw the laws reflecting the people's demand in the state. Surely there should be some standards of accountability for these officers.
Finally, it is the farmers and they alone who will decide their next course of action. They deserve our full support and solidarity. But we as citizens should be clear about the orders of the Supreme Court and who they benefit.
Brinda Karat is a Politburo member of the CPI(M) and a former Member of the Rajya Sabha.
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