Farmers Movement Archive

SC to examine if protest can be permitted with farm laws under judicial scrutiny

Contemplating restrictions on the right to protest, the Supreme Court on Monday observed that “nobody takes responsibility” when damage to property and physical injuries take place during protests, as it referred to the incident in Uttar Pradesh’s Lakhimpur Kheri where violence claimed eight lives during a farmers’ protest a day ago. A bench of justices AM Khanwilkar and CT Ravikumar wondered why farmers are protesting when the operation of the three contentious farm laws has already been suspended by the apex court this January, while calling it a “principal question” to be determined as to whether protests should be allowed when the issue is sub judice (under judicial consideration). The Union government, through Attorney General KK Venugopal and Solicitor General Tushar Mehta, asserted that parties should not be allowed to protest on the streets when a constitutional court is already examining the subject matter of agitation. “When such incidents happen, nobody takes responsibility. Damage to properties, physical damages... deaths too. But nobody takes responsibility,” remarked the bench when Venugopal spoke out about the violence at Lakhimpur Kheri on Sunday. “Why should a person be allowed to protest by the executive after he has exercised his right of going to the court? This is the principal question before us... Once you have gone to the court against the action of the executive, how can that person ask for a permission to protest? Protest against whom? It is now only the court that can pass orders,” commented the bench. “When you have already challenged the law, why should you be allowed to protest? You choose only one option. Either you appeal to the parliament or you come to the court. You cannot be doing everything... How can there be a protest when the matter is sub judice? We will decide this issue,” said the bench. The top court was hearing a petition by farmers’ outfit Kisan Mahapanchayat, seeking permission to hold a peaceful satyagraha against the farm laws at the Capital’s designated protest site of Jantar Mantar when it questioned if there can be an “absolute right to protest”, especially when the party concerned has already moved court against the policy or legislation against which it seeks to hold demonstrations. Meanwhile, another SC bench, comprising justices Sanjay Kishan Kaul and MM Sundresh, issued notices to 43 leaders of farmers’ organisations which have been leading protests under the banner of the Samyukt Kisan Morcha (SKM) against the three farm laws passed by Parliament last year. These leaders include Rakesh Tikait of Bhartiya Kisan Union and Yogendra Yadav of Swaraj Abhiyan – two prominent leaders associated with the ongoing protests. On a request made by the Haryana government through Mehta, the court sought replies from the farm leaders, who have been sought to be included as parties to a petition by Monicca Agarwaal, a single mother working in an information technology firm who has said her travel from Noida to Delhi has become a nightmare due to these protests.According to the application moved by the Haryana government, it is imperative to hear the farm leaders if issues arising out of the agitation on public roads causing inconvenience to others are to be resolved. This bench said that it would hear the case next on October 20 after the farm leaders are served with the notices. Thousands of farmers are camping on the borders of Delhi, Haryana and Uttar Pradesh, and on highways along these states since November last year, protesting three controversial laws that aim to liberalise the farm economy. Traffic at many points have been diverted, adding to commuting times, besides affecting commercial activities along these routes. Meanwhile, Kisan Mahapanchayat assured the bench, headed by justice Khanwilkar, that is not a part of SKM and is not protesting in public spaces but wishes to carry out a peaceful protest at Jantar Mantar to raise several pertinent issues in farmers’ interest. The bench, however, expressed its reservations in entertaining such a request since the outfit has already challenged the validity of the farm laws before the Rajasthan high court through a writ petition. The court requested Venugopal to assist with regard to the question if a party can be allowed to protest when it has already exercised the option of going to the court. “You want to protest against what? This court has already stayed the law. The government has assured they are not implementing the law. So, what are you protesting? If the validity of the laws has to be decided by this court, where is the question of protest?” the bench asked advocate Ajay Chaudhary, who represented the Mahapanchayat. Chaudhary tried to persuade the bench that the outfit is not only protesting against the validity of the farm laws but is also raising other relevant issues. The court, however, remained unimpressed and remarked that when the Mahapanchayat has chosen to move a petition before the high court, why it should be given permission to protest raising the same or similar issues. Venugopal and Mehta submitted that protests should not be allowed when the issues are already pending before a constitutional court. “There should not be any protest when the issue is pending before this court. They cannot exercise both rights. Please, make it clear they cannot continue the protests. Unfortunate incidents happen...see what happened in Lakhimpur yesterday,” Venugopal told the bench. At this, the court said that it is willing to determine the contours of the right to protest after transferring the Mahapanchayat’s petition before the Rajasthan high court to itself. The court, in its order, recorded that the principal question involved is whether the right to protest is a fundamental right, particularly where a party has approached a constitutional court on the same issue. The court fixed the next hearing on October 21. When the Supreme Court had on January 12 stayed the operation of the three farm laws, it had desisted from issuing any order against the protests, saying it is not against peaceful agitations. “While we may not stifle a peaceful protest, we think that this extraordinary order of stay of implementation of the farm laws will be perceived as an achievement of the purpose of such protest at least for the present and will encourage the farmers bodies to convince their members to get back to their livelihood, both in order to protect their own lives and health and in order to protect the lives and properties of others,” the court order had then recorded in its order.While staying the laws, the top court had formed a committee to discuss the legislation with both farmers and the government and make recommendations to the court. The committee submitted its report in the court on March 19 but the case has not been taken up ever since. Former Supreme Court judge, Justice Madan B Lokur, said that the suggestion by the court that nobody should protest against the farm laws when the issue is pending consideration before it is ridden with dangers.“Supreme Court has no power to restrict Fundamental Rights - it has to protect them for the benefit of citizens. If peaceful protest is prohibited, there is a violation of the right to assemble peacefully without arms, which is a constitutional right guaranteed by Article 19(1)(b),” he said. “There is also an issue of freedom of speech and expression, another fundamental right under Article 19(1)(a) that will seriously and adversely affect journalists, commentators, media persons and just about everyone else. The Hon’ble Court has not defined what kind of protest is prohibited. Protesting on the streets is one form of protest. Hunger strike is another while writing critically against a law or an issue is also a manner of protest,” he added.He pointed out yet another flaw with the court’s suggestion. “The Supreme Court does not indicate by what time it will decide the issue of farm laws. One can understand if at all, that the matter will be decided within a week, till then it can request the people not to protest. Such an appeal has been made in the past. There is a precedent for it. But if a case is not to be decided for next five years, it is crazy to say you cannot protest. This can have a bearing on many other issues pending before the court such as electoral bonds, Citizenship Amendment Act, Article 370, etc. So if a labour law is challenged in court, the suggestion would mean that no trade union or labour union can go on strike. Nobody supports burning of buses or public transport, but peaceful protest and free speech is guaranteed by the Constitution.”

Hindustan Times

05-10-2021

India