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Farmers tell SC its January order gives them right to protest, barricading is police’s problem

Farmers’ lawyer Dushyant Dave spars with SG Tushar Mehta on plea to clear Delhi’s borders, but SC bench says it is more concerned about finding a solution.

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New Delhi: Farmers’ unions Thursday asserted their right to protest, citing an earlier Supreme Court judgment in their support.

Appearing for some unions before a Supreme Court bench led by Justice Sanjay Kishan Kaul, senior advocate Dushyant Dave blamed the police for creating blockades and causing inconvenience to commuters. “I have personally travelled on these roads. These farmers have parked themselves on the side. The problem is the way the police have put up the barricades,” Dave told the bench.

The court was hearing a petition filed by a Noida-based resident seeking directions to remove the farmers camping at Delhi’s borders since November last year, demanding a repeal of the three contentious farm laws.

The petitioner — Monica Agarwal — has contended that the blockade is causing inconvenience to inter-city travellers. On the request of the central government, the Supreme Court had issued notices to 40 farmers’ unions. However, only four appeared Thursday.

Dave urged the bench not to hear the matter as connected petitions are already listed before a three-judge bench that is seized of the larger issue concerning the validity of the farm laws.

He referred to the 12 January 2021 order, in which a three-judge bench led by then-Chief Justice of India S.A. Bobde had put on hold the implementation of the laws. At the same time, it had explicitly refused to prevent the farmers from protesting, Dave said, reading out the order. According to him, fresh petitions against the protest cannot be entertained in the wake of the January order.

“The court has categorically stated our right to protest is sacrosanct and that it will not interfere with the present protest as long as it is non-violent,” Dave added. In the view of this order, he contended, fresh petitions such as the one filed by Agarwal should not be entertained by a new bench.

Judicial discipline, he argued, bars a two-judge bench from hearing a case on an issue already pending before a larger bench, especially in one where there is a specific order.

This was, however, opposed by government counsel, Solicitor General Tushar Mehta, who asked the court not to succumb to “browbeating by Dave”.

CJI Bobde’s bench had on 12 January put on hold the three contentious laws while hearing petitions challenging their validity and also those raising the right of citizens to move freely during the farmers’ protest.

The court had then also formed a committee of experts to give a report on the three legislations to the court.

Although the committee has submitted its report, the court is yet to take up the matter for further hearing. On 1 September, a key committee member, Anil J. Ghanwat, president, Shetkari Sanghatana, also wrote to the present CJI N.V. Ramana, requesting him to take up the matter without any further delay. However, no date has been fixed to hear the case.

‘We cannot keep laying down the law each time’

Meanwhile, individual petitions have been filed in the court regarding the blockades caused due to the farmers’ protest. While Agarwal’s petition has got listed several times, another one filed by a lawyer is yet to be heard.

One more petition filed by a farmers’ union — Kisan Mahapanchayat — seeking permission to stage a protest at New Delhi’s Jantar Mantar is pending. In this case, a separate bench led by Justice A.M. Khanwilkar had made strong observations against the protesting farmers. The judge told the union that farmers should either choose the court or the road. On 4 October, this bench decided to examine whether farmers have a right to protest even after challenging the law in the top court.

During the Thursday hearing, the bench reiterated its earlier view that it was not against the protest. However, the same, it added, cannot violate the fundamental rights of others.

“People have a right to protest, but at the same time people also have a right to go on the roads,” Justice Kaul said.

This prompted Dave to respond: “They (Delhi Police) should not have stopped us from protesting at the Ramlila Maidan. They allowed BJP to carry out its rally there, but they prevented us from holding protest.”

When Mehta spoke about the Red Fort violence during the protests in January, Dave shot back, saying “an independent probe will establish it was engineered. All those people who were arrested for the violence and bringing shame to this country have been given bail”.

Without getting drawn into the heated exchange between the two counsels, the court said it was more concerned about finding a solution.

Justice Kaul further told Mehta that the court had laid down the law and methodology and it was up to the administration to implement it. “We (court) cannot keep laying down the law each time,” the judge said.

Since the unions had appeared for the first time, the bench gave them two weeks to file a response to the petition, and another two weeks to the petitioner to submit her rejoinder. It then said a decision on Dave’s request to refer the matter to a larger bench will be taken once the stand of the two parties comes in writing before it. The court then listed the matter for a hearing on 7 December.

(Edited by Neha Mahajan)

Also read: Farm protest not just about farmers now. Here’s what it can do for the idea of India


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