When the Supreme Court on Monday, 11 January, came down strongly on the Centre for its approach to the farmers’ protests, it was tempting to view this as a positive development in the row over the controversial farm laws. That the court’s intervention might help resolve the stand-off between the government and the protesting farmers.
The subsequent stay on the implementation of the farm laws a day later offered a similar temptation: to view the apex court as a sensible mediator, which is willing to step in and try to take measures to ensure that the government negotiates in good faith with the farmers over their demands.
The problem, however, is that there really is no role for the court to play in this aspect of the stand-off between the farmers and the Centre and indeed, its involvement only risks muddying the waters.
This is not just about the fact that all four members of the ‘expert committee’ – set up by the court to hear from all relevant stakeholders and report – have already expressed their support for the laws and argued against their withdrawal. The problems with the court’s approach go deeper but unfortunately run contrary to its functions as an institution.
What Is the Role of a Constitutional Court in a Crisis Like This?
The SC can no doubt end up getting drawn into important socio-political flashpoints of the day, but its role in them must nonetheless relate to the legal issues involved, where it can play a judicial function.
First, it should ensure that the fundamental rights of the protesters are protected. To an extent, the court has done this here, by refusing to order removal of the protesters or set guidelines for them to follow, despite being urged to do so by a number of petitions filed before them.
Nonetheless, there have been some less-than-helpful remarks by the judges that have generated controversies and have not helped build trust with the protesting farmers.
These include Chief Justice of India SA Bobde’s comments about how women and elderly people shouldn’t be ‘kept’ at the protests (ignoring their own agency) and requests to lawyers for the farmers’ unions asking them to go back, as well as the concluding paragraph in the order suggesting the stay order should be enough to satisfy the protesters for now.
Secondly, they are meant to deal with any challenges to the constitutionality or legality of the farm laws themselves – issues which are already at play in a number of petitions before the court and those tagged along with the matters taken up by the court in its hearings over the last couple of days.
This is where, of course, the apex court has been in troubled waters for several years now, failing to take up such cases where the constitutionality of a law is being challenged with any degree of urgency, to the point where the delay in hearing the matter renders it a fait accompli. From Aadhaar to Kashmir, by way of demonetisation and electoral bonds, this has become a recurring theme in the court’s recent history.
While the challenges to the farm laws have not yet been around for too long, the court once again does not appear to be showing any sort of urgency to hear the arguments regarding their legality. Instead, it is focusing on this path of setting up a committee to hear farmers’ grievances.
There are serious issues to be looked at about the passage of the farm laws – from the primary question of legislative competence (the Centre insists it has rights under the Concurrent List of the Constitution to pass laws like these, while state governments, opposed to them, say they are a question of agriculture, a State subject) to the way in which the voice vote was conducted in the Rajya Sabha.
The expert committee set up by the Supreme Court cannot help it answer any of those questions. Yet, the court is going to wait for two months, till the committee submits its report to the judges, before its next hearing on the petitions.
Even if it did want to set up this committee to get a sense of the farmers’ grievances, why not conduct hearings on the constitutionality of the farm laws in parallel, so that it is in a position to adjudicate on that issue sooner rather than later?
The Farmers Don’t Want Or Need a Mediator
During the hearing on Tuesday, 12 January, CJI Bobde rejected a suggestion that the court has been playing a role as a mediator in the issue. However, it is difficult to see how else one could have described the court’s approach.
While the last few decades of Public Interest Litigation (PIL) have seen the court take on such a role many times, there really is no need for it to do so here – particularly when it already has a specific role it should be playing as outlined above.
Yes, the government has refused to budge on the farmers’ demands for a repeal of the farm laws. Yes, there does not appear to be any trust between the farmers and the government which is essential for the negotiations to continue. Also, the farmers are facing increased hardship in the cold of winter.
But the farmers have proved to be far cannier and more adept at managing the stand-off with the government than people give them credit for, and know precisely what their demands continue to be: the repeal of the farm laws, nothing more, nothing less. That demand can only be met by the Centre, not an expert committee set up by the Supreme Court.
The court’s choice of committee members hardly inspires confidence on that front anyway.
The Supreme Court can only be the forum for those demands to be met if it holds that the laws are unconstitutional – a determination which, as explained above, they are putting off for as long as they continue with their current approach.
It is telling that the farmers have been fairly consistent with their position that they intend to keep up their protest and will continue to engage with the government (even if on their own terms), while the Centre in the last talks indicated a willingness to let the matter be dealt with by the Supreme Court.
The farmers’ protests, at the end of the day, run far deeper than a purely technical question of legality. At heart is the trust deficit that exists between many citizens and the central government, not just over potential overreach by the Centre, but the lack of respect it appears to have for relevant stakeholders when pushing through laws like this.
This was highlighted by the Supreme Court as well, with CJI Bobde noting there had been no consultations between the Centre and farmer bodies before bringing in the farm laws (first as ordinances, then as acts).
However, the court cannot really adjudicate on this issue of lack of consultation, because there is no statutory requirement for the government to do so in such issues. This is an issue for the citizenry to take up with their government, and no amount of Supreme Court hearings or even comments by judges is going to solve it.
The Stay Order Offers More Questions Than Answers
The court’s unwillingness to look into the questions on constitutionality of the farm laws has also impacted the stay order it has passed. An order for a stay on a legislation requires some sort of prima facie determination that the law is unconstitutional, a point which Attorney General KK Venugopal sought to raise in the court, submitting several precedents.
The court’s way around this was to argue that it is not staying the laws themselves, but is suspending implementation of the laws by the Executive, and that this can be done without any sort of determination about the law. Even if this were possible, there needs to be some sort of clear reasoning to explain the need to do so (rather than it just being good for the negotiations), some clear set of principles being followed.
Unfortunately, no such reasonings or principles can be found in the court’s order. This also speaks about the lack of consistency by the court.
If the reasoning is a concern that the steps to be taken may become irreversible; well, when a request for a stay on the Jammu and Kashmir Reorganisation Act was made in 2019, the court refused to grant it even though there was actually a time frame for implementation of the Act (31 October 2019) there.
If the reasoning is that the government is failing to engage with the protesters, and there are concerns that the situation could spiral out of control (as stated by the CJI on Monday), then why didn’t they fail to do so with the Citizenship (Amendment) Act? Not only were requests for a stay on the CAA ignored, the court hasn’t even bothered listing the cases since January 2020, despite its own order asking for the same five weeks later.
Of course, it could be argued that the court has learnt from the mistakes in its approach in those two cases (where, it should also be mentioned, the petitioners made out strong prima facie cases for unconstitutionality), this reasoning has to be specified in the court’s order. After all, that is what a judicial order is all about.
And yet we fail to get any reasons from the judges beyond a vague couple of lines about creating a congenial atmosphere, creating confidence and assuaging hurt feelings – none of which have any basis in law, or can be tied to some principle in law.
A failure to articulate the reasoning behind the order only fuels further doubt and questions, whether over the time frame specified by the court for the committee’s report (the two month period takes it close to the Rabi harvesting period when many farmers will have to go home) or the comment at the end about the farmers to consider going home for their livelihoods and health – and to ensure protection of the lives and property of others.
In the end, this only adds to the sense that the court is straying into an arena which isn’t part of its judicial function, and is doing so in a manner which is unlikely to achieve the resolution it believes is so urgently needed.