The Supreme Court on Tuesday stayed the implementation of three agricultural laws against which farmers have been protesting on the Delhi border for weeks. The farmers believe that the new laws undermine their livelihood and open the path to the corporatisation of the agricultural sector.
The difference between staying a law and staying the implementation of a law is not immediately clear. The order did not flesh this out, except for saying that the court has the powers to halt executive actions under a law.
The court’s decision seriously violates the separation of powers enshrined in the Constitution. To stay the implementation of a law without even a single hearing on its merits and demerits sets a dangerous precedent for parliamentary democracy.
Instead, the court has formed a committee to hold talks with both the farmers and the government and submit a report in two months. Since the talks between the two sides have reached a stalemate, the court feels that conversations with the committee will make the farmers more confident about coming back to the table to negotiate with the government.
The terms of the committee appear to be vague. The court has asked the committee to submit a report to it, but it isn’t clear what purpose this document will serve with regard to the cases that are before the bench.
Committee and constitutionality
For example, what would the court do if the committee report states that the only resolution the farmers want is for the government to repeal the laws?
Under the Constitution, judicial review is the only avenue for the court to test the legality of a law, whether passed by Parliament or as ordinances by the government. The only way the court can intervene is by striking down laws or at least part of them as unconstitutional, or upholding them.
For this, though, the court would have to hear the cases. The arguments presented during the hearings would give the court the basis on which to decide whether a law should stand. As a result, the committee report would not serve much purpose in the final outcome of the cases.
While the court was asked by the petitioners to test the law for constitutionality, it has entered the territory of arbitration by forming a committee and postponed testing the law. It is shirking its responsibility. The order cites a recent case to note that the court has the powers to stop executive action under a law. At the same time, the order also expresses appreciation for the submissions of the attorney general who vociferously opposed staying the laws in any manner.
If there are differences in case laws, the court should have first settled whether it had the powers to stay the implementation of the law instead of directly doing so.
Worse, the composition of the committee has come under severe criticism because the members have declared that they support the new laws. Some members have even described the protests as misguided. How does the court expect the farmers to have confidence in this committee? More importantly, how did the court select these individuals? The order does not say how. This opaque process further dents the committee’s credibility.
Breather for the government
Further, the court, by recording allegations that banned organisations have infiltrated the protest, has done further damage to the cause of reconciliation it has taken up. This intervention by the court was made not because there was violence (something that the court itself has lauded) but because there is an anticipation of violence that could harm life and damage property. However, it has been a consistent position of the court that law and order is the domain of the executive. Will the court now intervene in every protest and take over a crucial role of the government? What will this mean for democratic protests, which are a vital tool for citizens to use to hold the government accountable?
The court also expressed concern about women participating in the demonstrations. This is misguided. Women form a substantial percentage of the workforce in agriculture and are equal stakeholders. The court has cited the Covid-19 pandemic and the winter to buttress its argument that women should be kept away from the protests. While this might hold true for the elderly, women and men are equally susceptible to cold and coronavirus. This only reveals a patriarchal mindset that looks at women as weaker.
This apart, the order is muddled because of differing positions the court has taken in previous cases. For example, the court did not find it necessary to stay the operation of the Citizenship Amendment Act despite the fact that the protests against it last year were more widespread than the agitation against the farm laws. The cases have been pending for over a year without a conclusion in sight.
In the end, the order has given the government a breather for two months. Even though the court has not called for the protests to end, it has provided the Centre a ruse to stop the talks with the farmers, which were putting it under immense pressure. Instead, it will now be talking to the court-appointed committee formed. Two months is a long time to continue the agitations, since farmers have to return to the fields for their livelihood.
Above all, if the protesting farmers refuse to participate in the talks with the committee despite the court’s direction, it would be a huge loss of face for the court.