A little bemused, I heard a writer addressing the farmers’ protests recently say in all solidarity and sincerity – “What we have been writing about for long, you have demonstrated at ground level.”

On the contrary, I believe that this massive and electrifying protest against the farm laws is at the cutting edge of political theory and political practice, from which writers and academics must listen and learn.

Please listen to the statement by Kanwaljeet Singh on the Supreme Court judgement staying the farm laws, and setting up an “expert” committee to “negotiate” between the farmers and the government.

Speaking on behalf of the joint forum of farmers’ unions, Kisan Ekta Morcha, Kanwaljeet (of Punjab Kisan Union) makes what I think are two critical points regarding the law and how movements can relate to it. These thought provoking points have larger resonance and require wide ranging debate and consideration.

1. The question of representation before the law.

The farmers’ unions’ stand is that they did not approach the courts, and therefore the committee set up by the Supreme Court is not acceptable to the farmers’ unions, nor will they appear before it.  “We will not be bound by the recommendations of any committee”, he says. It is another matter that the Committee is not even superficially neutral, as Kanwaljeet points out, but that is the lesser issue here.

Essentially, the committee is now an extraneous body that comes between the farmers’ unions and the government, short circuiting the process of direct negotiation with the government that the farmers’ unions have achieved through their powerful resistance.

But the more important point here is whether parties that are not directly affected can take an issue to court and get a ruling that binds those who are affected.  Courts have tended not to accept the locus standi of such groups, with one notable exception, to which we will come. The point is that the court’s assessment of whether a group or individual has locus standi or not, is almost never devoid of a broader political understanding. Consider three instances.

In the Sabarimala case, one of  the points made by the dissenting judgement of Justice Indu Malhotra had to do with the locus standi of the petitioners (Indian Young Lawyers’ Association) who she said were not directly affected by the ban, as they were not devotees. However, from their names they are all Hindu women, and there is no reason to believe they would not climb Sabarimala if they could. Of course, Sabarimala is one of the few temples that does not prohibit entry on the basis of caste and religion, so their Hindu identity is not really relevant. One does wonder though, how their devotee status (or lack of it) was determined. What we see in the Sabarimala case is that the term “devotees” was reserved for those who defended the ban on entry of women, while those who sought entry were invariably described as “activists”.

The Bhima Koregaon case. The claim of locus standi is sometimes met by staking a claim to Next Friend status. This is a legal term for a person who represents another person who is unable to go to court, because they are a minor or are otherwise handicapped from approaching courts directly.  Regarding the petition filed by historian Romila Thapar and four other eminent persons as Next Friends of the accused journalists and lawyers , challenging their unlawful arrest, the Supreme Court held that since the accused themselves had filed signed statements praying that the reliefs claimed by the Next Friends be treated as their own writ petition, the Next Friend petitioners cannot be heard. In other words, their status as Next Friend was denied as “the writ petitioners were completely  strangers to the offence under investigation.”

The Ayodhya case. The status of Next Friend to the deity, Ram Lalla, on the grounds that he is a minor, has been appropriated by individuals linked to Vishwa Hindu Parishad since 1989, and these individuals one after the other, unilaterally got themselves appointed the Next Friends of the deity. This status has never been questioned by any of the courts that have pronounced on the building of the Ram temple at the site where the Babri Masjid stood, before its demolition by Hindutva forces including the VHP.

Finally, in the farm legislation case, no party’s locus standi has been questioned by the Supreme Court, even though none of the farmers’ unions protesting the laws have approached the court.

Evidently, whether a petitioner may be heard or not, whether a petitioner has locus standi or not, is based on larger political considerations that unavoidably enter legal discourse and understanding. The history of Public Interest Litigation in India is testimony to the way in which not only the political understanding of judges but in a sense the very the spirit of the age, determines what Public Interest is – from the immediate post Emergency era in which democratic rights got the protection of courts through PILs, to the 1990s onwards, when, through the invocation of “Environment” in PILs, the interests of the middle classes and the state trumped those of working classes and forest dwellers.  Most recently the Supreme Court admitted petitions from people claiming the right to smooth traffic, against the anti CAA protests as well as the farmers’ protests.

2. This brings us to the second (and linked) critical point the farmers’ unions make, in Kanwaljeet’s words. This has precisely to do with  “politics” as opposed to “law”.

The reason why the farmers’ unions did not approach the courts is that the farm laws are not merely unconstitutional in that they infringe the federal principles of the Constitution; but that they represent a policy decision of the government. The Modi government has demonstrated that it has the “political will” to permit corporates to enter the food-grain market. This cannot be opposed legally, but only by stating the opposing “political will of the masses”.

This policy change cannot be viewed exclusively “through the lens of the Supreme Court or constitutionality.” In other words, the way to fight the political will displayed by a government supposedly elected by the people – if that will goes counter to the expressed will of the people – is by “peaceful mass agitation.”

Kanwaljeet also points to the revealing fact that the Supreme Court order states that the stay on the laws would enable the leaders of the protests, to persuade the farmers to go back to their normal lives.

The order in fact concludes:

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 point that Kanwaljeet makes here is the court appears not to have followed a legal rationale in ordering the stay, but rather, a political purpose. This purpose is explicitly congruent with the government’s goal – to disperse the protests.

In brief, what the farmers’ unions are doing is teaching us anew the key principle that undergirds a democracy – a government is answerable to the people. This government on the contrary, sees itself as above the people, as if the government’s will is superior to the will of the people. When Haryana Chief Minister Khattar’s proposed meeting was disrupted by protesting farmers, his response was that the Centre was not likely to repeal the three farm laws. “Discussion can be held on certain points, but I do not think government is going to withdraw these laws,” he said.

After a fruitless meeting between three Ministers and the farmers’ unions, the former, representatives of the government, said they would have to consult “higher authorities” to consider a repeal of the laws. If they represent government on a question of laws passed by the government itself, there is no higher authority than the people affected by those laws.

But this government, while passing a slew of legislations that have been massively resisted by entirely different sections of people whose democratic and constitutional rights have been infringed by these, has reacted to every protest by claiming that the protesters are misled by the same group of “jihadis”, “urban naxals” and “the Opposition”.  If these groups can convince and mislead large masses of people while the Modi government cannot lead or convince them, the Modi government must go.

But in the meanwhile, we can think seriously about the questions of political theory that the farmers’ unions force us to engage with.