How The Government Can Suspend Or Defer Farm Laws Already In Effect

Two months and 10 rounds of negotiations later, the central government has proposed a suspension of the three farm laws that prompted thousands of farmers to take to the streets.

Agriculture Minister Narendra Singh Tomar, on Jan. 20, had said his government was ready to discuss the laws with the farmers' unions, and open to postponing their implementation for up to 18 months if needed. The farmers' unions said they would respond at the next meeting on Jan. 22, but decided to reject the offer within 24 hours.

The farmers say they will settle for nothing less than a repeal of the three laws—Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Act, 2020, and Farmers' Produce Trade and Commerce (Promotion and Facilitation) Act, 2020 and Farm Services and the Essential Commodities (Amendment) Act, 2020.

These were passed by Parliament on Sept. 20 and received the President's assent on Sept. 27. According to the gazette notification, the laws are deemed to have come into effect from June 5, 2020. Simply put, they are already operational.

To many, the government's offer to defer the implementation of the laws, or suspend them, as some headlines put it, will come as serious concession to achieve consensus.

But, how will the government suspend or defer implementation of laws that have already come into effect?

Former BJP leader and minister in the Atal Bihari Vajpayee cabinet, Yashwant Sinha, said on social media that the government cannot suspend a law passed by the Parliament.

Govt does not have the power to keep a law passed by Parliament in abeyance specially when it's rules have been notified. Such a law can only be repealed.

Many experts believe a legislative amendment passed by Parliament might be the only other option to a repeal.

Once a law has been brought into force, there is no way that the executive can then exercise discretion to stop the law, said Advocate Sanjoy Ghose.

The only way it can be done is to bring a separate law or bring an amendment to the law which suspends the operation of law in question. For example, in the Delhi provision case there was sealing happening in Delhi and Parliament enacted a law granting a moratorium on the sealing.

Sanjoy Ghose, Advocate

It's currently unclear how the government intends to put the farm laws on hold, without going to Parliament for approval, Chakshu Roy, head of legislative and civic engagement at PRS Legislative Research, told BloombergQuint.

So far governments have either delayed notifying laws or put the breaks on operationalising them. For example, the whistleblower protection law was passed in 2014 but it's yet to be operationalised. In the case of farm laws, they came into effect in June 2020 and in October 2020 the government notified certain rules under these laws. If the government does decide to go to Parliament, it can ask Parliament to pass an amending bill changing the date on which these farm laws come into force.

Chakshu Roy, Head of Legislative and Civic Engagement, PRS Legislative Research

The farm laws followed three ordinances promulgated in June 2020 and state that they shall be deemed to have come into force June 5 onwards, Senior Advocate Mahalakshmi Pavani said to BloombergQuint. So, an amendment is the only way to render them ineffective till a later date.

They would probably have to amend the act to the extent that Section 1(2) shall read something on the lines that the act(s) would come into force on the day (future date) the central government notifies in the official gazette.

Mahalakshmi Pavani, Senior Advocate

Any such amendment would have to be approved by Parliament, which should neither be difficult to achieve via numbers or timeline, if the government so desired. The Budget session of Parliament will convene in a week's time in February.

There is another, non-legislative option to defer the laws, Ghose said. The government could approach the Supreme Court instead of the amendment route.

The Supreme Court has stayed the implementation of the laws, without specifying on what legal grounds, and directed a committee of four experts (one member has since resigned) to try and resolve the impasse. The eight farmer unions that constitute the bulk of the protestors have declined to appear in front of the committee on grounds that the three members have already made public their views in favour of the laws.

The court has set the precedent of suspending the implementation for a particular period of time. The parties can jointly request the court to extend the operation of this order to whatever period they choose.

Sanjoy Ghose, Advocate

But neither route offers protesting farmers the assurance that provisions they disagree with in the laws will be weeded out by the time the laws become operational again. All such an amendment or a court-ordered fixed term stay can do is buy time.

That may help the government calm matters, especially as the farmers intend to hold a tractor rally to rival the Republic Day Parade on Jan. 26. But time is not what the farmers want, as is indicated from their rejection of the proposal so far.

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