Farmers during the ongoing protest against the new agriculture laws at Delhi’s Singhu border on Sunday.
Farmers during the ongoing protest against the new agriculture laws at Delhi’s Singhu border on Sunday.

Decoding fine print of Supreme Court order on farm laws

The reluctance on the part of the Supreme Court to perform its foremost role of the final arbiter of law and deliver its decision when it really matters is writ large. Its action in this case has already provoked a barrage of criticism.
By Utkarsh Anand, New Delhi
UPDATED ON JAN 18, 2021 07:43 AM IST

“We are not experts on agriculture or economics,” emphasised Chief Justice of India (CJI) SA Bobde in the prelude to the Supreme Court’s order to constitute a committee on the three farm laws after staying the legislation.

Nor are they expected to be.

For instance, judges of the court cannot be expected to be experts in matters of faith, the scriptures, history, or archaeology. Its judges are not expected to be well versed with the vedas and the Puranas or the Hadith and the Quran. Yet, the court has had no compunctions in adjudicating the Ram Janmabhoomi-Babri Masjid dispute or the triple talaq case.

Which is exactly how it should be.

And which is why it is baffling why the highest court in the land took the position that interpreting and deciding on three connected laws on agriculture and agricultural markets were issues beyond its expertise or experience. But that isn’t the only issue with the court’s approach to the farm laws case.

Less than 10 days ago, another three-judge bench in the top court delivered an over 600-page judgment while validating the Centre’s decision on redevelopment of the iconic Central Vista in the national capital. This judgment dealt elaborately with how the review of a policy decision by the government entails a limited enquiry. “Second guessing by the court or substitution of judicial opinion on what would constitute a better policy is strictly excluded from the purview of this enquiry,” held this bench, underscoring the inherent dangers of subjective opinion by “three gentlemen or five gentlemen sitting as a Court.”

Again, on January 7, another three-judge bench said: “A decision of a public authority which is entrusted with a public duty is amenable to judicial review. But it is quite another hypothesis to postulate that the decision-making authority should be taken over by the court. The latter is impermissible.”

Which is, again, exactly how it should be.

So, the interim order by the CJI-led bench in staying the farm laws is clearly a departure from the principles enunciated in the Central Vista verdict and another order by the coordinate benches of three judges each, both delivered within the past fortnight. Even if one were to discount the settled legal principle of “presumption of constitutionality” of a law, as laid down in a body of judicial precedents starting in the 1970s, the stay order fails to show any level of consistency in decision-making to foster judicial credibility.

Notably, CJI Bobde was completely mindful of the thumb rule of “presumption of constitutionality” when his bench took up petitions regarding other controversial legislations such as the EWS Quota law and the Citizenship (Amendment) Act, or CAA. Justice Bobde headed the benches, which refused to stay implementation of these laws.

On January 9, 2020, dealing with a petition relating to the CAA, Justice Bobde had remarked: “There is a presumption of constitutionality of law. Our job is to examine the validity of a law.” A year on, the action of the first bench in the SC on the farm laws case seems a departure from the established principles of separation of power and dictum of judicial precedents. While staying the farm laws, the CJI-bench cited how the court earlier stayed the Maratha reservation. But Justice Bobde had himself chosen not to stay the EWS reservation law in similar circumstances. And the stay order in Maratha reservation had adduced reasons why the state legislation was being suspended – on questions of legislative competence and breach of 50% quota ceiling as laid down by the SC in Indra Sawhney (Mandal) judgment — unlike the stay order on the farm laws, which gave no reasons at all.

The court’s action has, thus, given rise to a strange situation where a stay order has been passed without examining the spectrum of legal and constitutional questions involved and specifying the reasons why the laws are prima facie unconstitutional or against the public interest. It obscures established judicial procedures and the rule of precedent. At the same time, it elucidates a reluctance to specify the normative basis on which the court’s actions are based.

Instead, a never-heard-before “hurt” maxim has apparently moved the court, as it notes that staying the farm laws “may assuage the hurt feelings of the farmers and encourage them to come to the negotiating table with confidence and good faith.”

Bereft of legal reasoning, this order may well have dragged the Supreme Court into the political thicket where the top court has embarked on managing the administrative exigencies stemming from the farm laws — it now has a committee to assist it in this job — instead of a genuine hearing on the substantive matter at hand.

Its choice of strategy is indicative of judicial adhocism and the principle of deference, which was once a feature of the executive. On the latter, apart from the challenge to the farm laws, there are several other legislations which are awaiting a ruling by the SC. Let alone deciding the validity of some substantial laws, the government’s notification on demonetisation (in 2016) is yet to be ruled on by the court, after having been referred to a constitution bench in 2017, thereby rendering exercise an academic one. And on the former, the court’s decision is indicative of an attempt to provide ad hoc solutions, not based on any discernible principles of rule of law or rule of precedents. In this case, this has taken the form of deferring to the wisdom of a committee (whose members the court itself selected).

This is antithetical to enforcement of consistent patterns of normative standards and settled judicial principles.

The reluctance on the part of the Supreme Court to perform its foremost role of the final arbiter of law and deliver its decision when it really matters is writ large. Its action in this case has already provoked a barrage of criticism. Lack of consistency and equitableness, coupled with reluctance to perform its role as the ultimate arbiter of the Constitution and the law, may undermine the credibility of the Supreme Court.

Only if the Supreme Court rises to the occasion; only if cases are treated alike; only if judicial ad hocism is shunned; only if the rule of law dominates, will its word remain truly supreme.

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