As with the Citizenship Amendment Act, which the government rammed through Parliament last winter, the government appears to be tying itself up in knots over the new farm reform laws this time around as well. As a result, Parliamentary procedure and well-established traditions becomes a casualty.
CAA was passed by both Houses of Parliament in December 2019, and was notified in the official gazette in January 2020. Parliamentary procedure dictates that the rules for the legislation are to be notified within six months from the date of publication in the gazette. However, the government is yet to notify the rules for the law to be implemented. CAA started a wave of agitation across the country in the winter of 2019 and led to the riots in Delhi. The latest one heard on the citizenship law was on 20 December, when home minister Amit Shah said that the rules of CAA are yet to be framed and the law will become operational after Covid vaccine inoculation is done.
Recently, to bring the agitating farmers to the negotiating table, the government offered to keep the farm laws in abeyance for 18 months. Farm unions rejected the proposal, saving the government from what could have been future embarrassment.
Experts have raised questions over how the government could have even made this proposal. The farm laws, passed by Parliament in September last year, were notified in the official gazette on 27 September after President Ram Nath Kovind gave his assent. Experts point out that, while Parliament can repeal or dilute the law, there is no provision in the Constitution or Parliamentary procedure for keeping a law in abeyance. While official sources maintain that one option before it was to issue a notification cancelling the earlier gazette notification and that it just needs an executive order (the government does not even have to go to Parliament), but that is easier said than done. Such an option, however, could have opened the government to the charge of further undermining Parliament.
“In my view, the law cannot be put in abeyance by the government,” says P.D.T. Achary, former Secretary General, Lok Sabha. “Once a law is passed by Parliament…the government is only the implementing authority and it cannot stifle the law.” This is echoed by Subhash Kashyap, another former Secretary General of the Lok Sabha. “I have not seen such a situation, where the government itself wants to keep a law in abeyance after it is given effect. Bills have been withdrawn, enforcement of laws has been delayed by not notifying them and laws have been repealed, but keeping it in abeyance after the legislative process is over has never happened before.”
The experts point out that the government’s proposal to keep the laws in abeyance is distinct from the Supreme Court’s stay on the laws on 12 January, when the court, in parallel, constituted a committee to hold talks with all stakeholders. That stay order can be vacated by the court once the committee submits its recommendations, expected in eight weeks. “Only the Supreme Court has the power to stay a law, not the government. If the government can undo the act of the Parliament by simply backdating a notification, then what is the point of having a Parliament,” Achary adds.
While the government cannot stay a law, it can delay its implementation before rules are notified. For example, Parliamentary procedure dictates that the rules for the legislation are to be notified within six months from the date of publication in the gazette. However, the government is yet to notify the rules for the law to be implemented. For instance, the Benami Transaction (Prohibition) Act, 1988 was not implemented for almost 28 years till the rules were notified in 2016.
However, once the rules are notified – as has happened with the farm laws — the only options before the government are to ask the Supreme Court to continue its stay order or take the laws back to Parliament. The Parliament can either amend or repeal the laws.
“Gazetted laws can’t be kept suspended,” argues Sitaram Yechury, general secretary, CPI(M). “They are enforceable unless repealed. The assurance to keep them on hold is, hence, hollow. Farmers have seen through this subterfuge. Repeal these laws”.
The Parliament’s powers to repeal laws come from Article 245 of the Constitution, the provision which empowers it to make laws. Laws are repealed, when they have served their purpose and have no further reasons for their existence or, in some cases, to remove inconsistencies. Generally, when new laws are enacted, the old law on the subject is repealed through by inserting a specific repealing clause in the new law.