Mediating the farmers’ protests is difficult terrain

If the top court does find itself mandated by a higher public duty to intervene, then it must observe some essentials

January 14, 2021 12:02 am | Updated December 04, 2021 10:31 pm IST

For nearly half a hundred days, the farmers of North India protesting against the recent farm laws have been at the capital’s outskirts, braving the bitter cold, and growing in numbers. They have mostly kept the peace and their dignity, and their communities seem ready to support them for as long as need be. If the authorities had any hopes of the protest petering out by dissonant voices claiming to represent farmers, or labelling them as anti-national and fuelled by pro-Khalistan elements, these do not look like carrying much weight. New Delhi’s mandarins have a first class headache, brought on principally by the way in which they hustled through legislation which affects the lifeline of India’s agrarian sector.

Central issue is about trust

One thing stands out clearly, and that is the lack of trust the farmers have developed about the designs of the government; the laws, they say, will leave them at the mercy of corporates. Given the imputed closeness of the ruling elite with corporate houses which have ascended to commanding heights of the economy in multiple key sectors, this is not a charge easily to discount. The farmers’ focus is on retention of the MSP, the minimum support price mainly for wheat and rice, and the need to provide a statutory backing for this, in the absence of which a corporate with ready cash will tap into farms in need. And the necessity of continuing with the mandi system which provides the wherewithal for open trade. On its part, the government offers assurances but these fall short of binding legal mandates, in other words asking the farmer to accept on trust that all will be well — and that brings us back to the central problem of lack of trust in the central government.


Another thing that stands out clearly is the fact that the Prime Minister and the top leadership have been absent from dialogues with the farmers’ representatives, these being helmed by junior Ministers out of the decision-making range. The earnestness of the government in finding a fair solution would have been well demonstrated if its heads lent a willing ear to those who toil on the ground to keep us well fed. For the essence of a hearing is that it may well open out your mind and give you a better perspective. And it brings comfort and confidence to those who are agitating to have their concerns redressed.

Committee and its mandate

In the encrusted stalemate now comes pitchforked the appointment of a committee by the Supreme Court, before which were petitions calling for removal of protesters and challenging the farm laws, accompanied by a stay of implementation of the laws with observations to the effect that the protesters need not continue on site. This is problematic for several reasons. Staying a law on legal grounds of prima facie force in the constitutional challenge is one thing, holding it in abeyance to facilitate the committee’s work and dispersal of protesters is another. Another is the mandate itself — the committee is supposedly made up of experts to give its recommendations to the Court on the laws; where exactly does a court come into the picture in what seems to be a legislative and executive exercise? It is another matter for a court to undertake legal examination and on finding provisions to be ultra vires , strike them down or declare the entire law void.

The body has not been termed a mediation committee nor formally tasked with conducting a mediation, but the Court does mention a role in assisting the negotiations between the farmers and the government, and in public discourse this is being talked about. A structured mediation would be approached differently. First, and this is of the essence, all necessary parties must consent to it; mediation’s strength lies in its voluntary aspect. Here, prominent farmer unions held back, perhaps because they perceive that growing public support dictates the choice of the political battleground rather than the mediation table; if so, the Court should be circumspect before entering the arena. The other reason for rejection has to do with the second basic requirement for mediation, that the mediators must be fair and neutral, and seen and perceived by all parties to be such. Appointing persons who have publicly taken strong stands on the merits of the matter is asking for a non-starter.

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The pathway to take

It is a tricky situation and caution would forbear a Court from wading into a political minefield. However, it has repeatedly been said by the Chief Justice of India that the negotiations seem to be going nowhere, and something urgent needs to be done. In times gone by, the Court has utilised its reservoir of public trust to mandate and structure a mediation in public disputes. This is being occasioned because increasingly, current day politicians seem to have lost the willingness and capacity to reach out and build bridges and find solutions. But if the Court does find itself mandated by a higher public duty to intervene, then it must observe some essentials. The first is to offer a committee of such composition that its neutrality, calibre and gravitas command respect and persuade doubters to give the process a try. There are some, but not many, former Chief Justices of the Supreme Court of India who will qualify to serve. The second is to obtain from the government the assurance that its highest level will meet the committee and participate in the proceedings. With this on offer, the consent of all parties may be secured.

Editorial | Imposing a compromise: On courts and laws

Once discussions start and are properly guided, solutions are possible. It may well be that once the important elements get focused upon and the key concerns expressed, approaches will open up which will secure legitimate interests to the maximum extent possible. Right now, parties are log jammed on the demand for immediate repeal, and the counter of focusing on amendments. The Supreme Court order may relegate this obstacle to the background. With all aspects on the table, it may be possible to get agreement and then put forward a law for repeal and reenactment, a known legislative device. All this is however possible if it is mediation on accepted principles and lines, which is not the case now. The Court needs to be careful about further continuance; its reservoir of public trust should not further be diminished.

Sriram Panchu is Senior Advocate and President, Mediators India. E-mail:

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