Last week, when the apex court stayed the implementation of the three farm laws and announced the formation of a four member committee, the CJI led bench was hearing a batch of 3 categories of petitions.
One category of petitions challenging the constitutional validity of the farm laws; one in support of the farm laws, asserting that they benefit farmers; and the third claiming that the agitation, and the consequent blockade of roads, infringed upon the fundamental rights of other citizens to move freely.
None of these petitions demanded a stay on the three laws. Staying of a law is itself an extraordinary occurrence, and the courts stay away from suspending laws unless they are ex-facie unconstitutional or devoid of legislative competence. And yet, the Court, ostensibly upset with the Centre’s handling of the negotiation process, stayed the farm laws until further order without going into any examination of their validity.
The court also constituted a committee so that “a congenial atmosphere” may be created for negotiations between the unions and the government. Chief Justice Bobde expressed a similar predilection on 18th December, saying that a panel led by experts like journalist P. Sainath would likely be created. Then, one day before the order, the Chief Justice expressed desire to create a committee comprising Indian Council of Agricultural Research (ICAR) members.
And yet, as has been widely reported, the Court eventually decided upon four staunch supporters of the farm laws for the committee. One member, Pramod Joshi, sees “nothing wrong in the fact that all members are pro-farm laws” while another member, Bhupinder Singh Mann, has recused himself from the committee, succumbing to the public outcry. In the unscheduled hearing before the order, no farm union lawyer was present to contest these names or suggest their own simply because the case was listed only for pronouncing orders, not hearing.
The right way to constitute a committee would have been to ensure the consent of all parties and appointing members that would be seen as neutral and fiercely independent. Though, the right decision overall would have been to not constitute one at all. The official mandate might be to listen to all sides and make recommendations, but, in reality, the committee serves no purpose other than that of keeping the court’s conscience clean. Rather, a consequence of the creation of this parallel mechanism would be that substantial questions on the validity of farm laws will be delayed indefinitely.
The most striking part of the proceedings and the interim order isn’t the unsolicited stay order or the bias manifest in the committee, it was the suggestion by Justice Bobde that women, elderly and children must be ‘persuaded’ to go back. Why should they? And should we not trust their agency to decide if they wish to stay or leave? Justice Bobde’s suggestion pendulums between paternalistic attitude and ignorance. It maintains a facade of care and reasonableness, while being oblivious to the realities of agriculture in India. One of these realities is that 73.2% of the female workers in rural India are engaged in agriculture, compared to around 55% of male workers (NSSO 2017-18).
The Supreme Court has made an unnecessary foray into a matter that did not need the court’s rescuing. The Centre, which has been stalling the decision on repealing farm laws for months, has been given a pretext to stall further. The best way for the court to help here would be staying the order as well as its own proceedings.
The Supreme Court in a hearing on 18th January made it clear that it will not go into the issue of whether to allow entry of protesting farmers into Delhi for the proposed tractor rally on Republic Day. Chief Justice Bobde said the government could not ask the court to decide on issues concerning law and order and that there was still time for the Union of India and the Delhi Police to “invoke all its powers”.
This editorial titled ‘Please, Stay Away: On Supreme Court’s Unnecessary Foray Into Farm Laws‘ has been written by Tushar Kohli and represents the collective view of the Editorial Team.