The Supreme Court of India has set a terrible precedent by staying the implementation of farm laws aimed at liberalising the farm sector that were passed by the Parliament last year. It appears a clear case of judicial overreach and may potentially shake the foundation of India's representative democracy by undermining the legislative organ of the state, diluting the Constitutional tenet of broad separation of powers between the legislative, executive and the judiciary " thereby upsetting the delicate balance on which the republic is founded. Tuesday's development is at once sad and worrying.
According to reports, a three-judge bench headed by Chief Justice of India SA Bobde and Justices AS Bopanna and V Ramasubramanian in a ruling on Tuesday stayed until further orders the implementation of three laws " Farmers (Empowerment & Protection) Agreement of Price Assurance & Farm Services Act 2020, Farmers Produce Trade & Commerce (Promotion & Facilitation) Act & Amendment to Essential Commodities Act.
Alongside, the apex court has also constituted a four-member committee of agri-experts comprising Bhupinder Singh Mann of All India Kisan Coordination Committee, Pramod Kumar Joshi, former director of International Food Policy Research Institute, agricultural economist Ashok Gulati and Anil Ghanwat, chief of Shetkari Sanghatana Maharashtra to "hear all the parties and stakeholders" and present its report to the court.
That the Supreme Court is in favour of forming a committee was evident on Monday when the CJI, hearing a batch of petitions on the farm laws, had observed that that the bench was mulling the setting up of an independent panel to resolve the deadlock and may stay the implementation of the law. The apex court had also refused to pass an order to stop the protests but added that the protesting farmers may be asked to consider shifting the venue elsewhere.
During Monday's hearing, the Supreme Court had also observed that it was "extremely disappointed" with the government's handling of protests, said the law was promulgated without "enough consultation resulting in a strike", made it clear that the court reserves the right to put on hold the implementation of the laws, expressed apprehension that continued protests may lead to "possible loss of lives and property" and observed, "we are the Supreme Court and we will do what we have to do.
The Supreme Court evidently wants to present itself as an honest negotiator and has constituted a committee mandated with the task of breaking the deadlock. The court ostensibly feels that continued protests are in nobody's interest and has therefore suggested a way out for the two sides. The committee of experts will buy time, and since it is constituted by the apex court, the hope is that farmers will be more trusting of the panel's intentions than the Centre on whom the protesting farmers apparently have no trust, as Nobel laureate and economist Abhijit Banerjee had recently suggested.
The Supreme Court's intentions may be noble. Its aim may be reasonable, but there are several drawbacks to the judiciary assuming the functions of the executive. First, the court has made itself vulnerable to the pulls and pressures of political posturing.
For instance, the protesting farmers rejected on Monday itself the Supreme Court's suggestion to appoint a committee to resolve the ongoing crisis and said they were "unwilling to participate in any proceedings before a committee."
This prompted the apex court to observe during its ruling on Tuesday that it will not hear an argument that farmers are unwilling to go to the committee. Addressing the farmers, the three-judge bench said "we are looking to solve the problem. If you want to agitate indefinitely, you can. Every person who is genuinely interested in solving the problem is expected to go before the Committee. The Committee will not punish you or pass any orders. It will submit a report to us."
According to reports, the CJI told the farmers' side that "there is no power on earth which can prevent us from forming the independent committee. We want to solve the problem. We want to understand the ground situation. This is not politics. You have to cooperate." He also clarified that the implementation of the laws has been stayed to facilitate negotiations with the committee.
The trouble is, despite the Supreme Court's decision to suspend the laws, the farmers have vowed to continue protests until the government repeals the laws. Bharatiya Kisan Union leader Rakesh Tikait has said the tractor rally program will continue as per the plan on 26 January and the farmers will not leave the borders, according to a report in DNA.
This could be an embarrassing development for the apex court, but there are graver implications of judicial overreach. The staying of the laws, duly passed by an elected government, impinges on the government's ability to make laws. Since the Parliament represents democracy and the will of the people, suspension of laws passed by a majority of elected representatives may indicate that the will of the people do not count.
As former Supreme Court judge Markandey Katju writes in The Week, "when a law is made by Parliament, it is only Parliament which can repeal or suspend its operation by making another law. The Court can no doubt declare a law ultra vires if it finds it unconstitutional, but it has no power to temporarily stay its enforcement even without recording a finding that it is prima facie unconstitutional."
The suspension also sends a terrible signal that any interest or pressure group within the state may force the government to rescind a law, duly passed by the Parliament, if it succeeds in gathering a large enough crowd in a country of billions to demand attention, and their demands will be met as long as there is a threat of disruption and the laws are challenged in court.
The judiciary is mandated with scrutinising the legality and Constitutionality of a law, but if the court starts making policy prescriptions too, then the very validity of Parliament is thrown in doubt. This is a worrisome development in a democracy.
The government is frequently blamed for not implementing reforms. Any reform worth its salt will upset status quo and go against some interest group or the other. If the majority stands to benefit from the step, then it must be persisted with. The protesting farmers, who represent a fraction of their community, has so far refused to budge even an inch from their stand. If they are rewarded for their maximalist approach, then the vast majority of farmers who are ostensibly in favour of the reforms will be wronged, and it may also encourage extortionary tactics in the future.
Finally, it has been claimed that the court's decision is an elaborate ploy to break the "protest movement". It further underlines the dangers of judiciary overstepping its remit.