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The Supreme Court Should Go Back To Doing What It Is Designed To Do By Our Constitution

Dinesh Dwivedi, Senior Advocate
17 Feb 2021 8:43 AM GMT
The Supreme Court Should Go Back To Doing What It Is Designed To Do By Our Constitution
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In a village brawl a village elder ends the brawl by advising withdrawal from the ego fight and to let the by-gones be by-gones. Supreme Court tried to be that wise old elder unsuccessfully and drew a huge flack. Basically it is constitutionally unsuitable for such a role. However whether or not it was appropriate for it to do so, it halted the implementation of the Farm laws indefinitely....

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In a village brawl a village elder ends the brawl by advising withdrawal from the ego fight and to let the by-gones be by-gones. Supreme Court tried to be that wise old elder unsuccessfully and drew a huge flack. Basically it is constitutionally unsuitable for such a role. However whether or not it was appropriate for it to do so, it halted the implementation of the Farm laws indefinitely. It constituted a 4 member Committee of experts in the field, to hear the grievances of the farmers and report to it. There were no timeline constraints to it, an age old administrative formula in dilatory tactics. May be it felt that this may calm tempers and the nerves in relation to the fast-approaching Republic Day parade on the 26th January.

However it muddied the waters by nominating 4 members to the Committee, who had already prejudged the issue and had expressed pro- reform opinions publically. This alarmed everyone, particularly when the affected party was not agreeable to the constitution of any such committee. They expressly declined to accept and appear before the Committee. The names announced raised their hackles and added fuel to the fire. Howsoever one may try to play it down, the uproar was deafening and did bring the Court to disrepute. Ironically these Orders were passed in the petitions after noticing that the challenge in the petitions before it was confined to the disruptions caused by the farmer's protests and not the Farm laws. Then why this Constitutional overreach? Couple of things are noteworthy in respect of these Orders.

- Court was aware that there was an agitation going on in regard to the Three Farm Laws.

- Court had declined to interfere with the farmers protests treating protest as their rights.

- Court expressed a clear desire to bring about an effective solution to the stalemate between the farmers and the Centre and to thaw the hardened positions.

- It also decided to invite suggestions from all the necessary parties before the Supreme Court, and to recommend names for the Committee.

- The Court was also aware that the issue of validity would be decided in future in due Course. The question noted was limited.

This was the position on 17.12.2020. However things took a curious turn on the next date 12.01.2021. By this time it was evident that the farmers Unions were not interested in participating in any kind of deliberation either before the Supreme Court or the Committee to be appointed by it. There had been considerable criticisms of the assumption of the village elders role by the Supreme Court and that too in the petitions of the non-farmers, that did not involve challenge to the Farm Laws. It appears that this criticisms led the Court to link the petitions questioning the validity of the Farm laws on the date.

On 12.01.2021 the group of lawyers appointed to represent the farmers deliberately did not appear expressing no confidence. No suggestions therefore had come from the farmer's side on any issue noted earlier or about the names of the members to the Committee to be formed by the Supreme Court. It would at this point be important to notice some of the salient factors about the hearing on 12.01.2021

a. The Court noticed that despite several rounds of negotiations the dispute did not achieve any kind of solution, though the farmers protest was peaceful.

b. The lawyers engaged by the farmers Unions deliberately did not appear on that date. It had come to be known a day earlier, that the Union lawyers would not be appearing on 12.01.2021.

c. The Government, even though it was offering to suspend the Farm Laws, vehemently opposed stay of the laws by Supreme Court. Despite the Centre's opposition the Court proceeded to stay the Farm Laws, in the interregnum, till a positive solution emerges between the negotiating parties

d. Simultaneously despite clear opposition to the constitution of the suggested Committee the Court proceeded to nominate four members to the Committee to listen to the grievances of the farmers against Farm Laws and to make recommendations after hearing the Farmers bodies as well as others. It is still unclear as to where did the names come from and who suggested.

The Court also mandated all the farmers Unions to appear and put forth their grievances before the Committee. As soon as the names of the Members were declared there was a huge uproar with regard to the apparent bias of the said nominees. The Farmers Unions were openly hostile and declared that they would not be participating. The long-drawn negotiations between the parties has already struck a stalemate. Yet the Court in its wisdom attempted a solution through negotiations,which in the circumstance was doomed to fail.

This should have been enough to sound the Court to stay away from the dispute. The Committee had no credibility or meaning on the face of the Farmers Unions expressing their opposition to both the Committee and its Members. Despite clear expression of no confidence by the Unions, Court insisted on the Committee proceeding to hear the grievances of the farmers and to report/ recommend to the Court. The question would be, recommend what? The grievances of the farmers protesting would not go way by the report of the nominated Committee nor would it be possible for the Court to step- out of its jurisdiction and grant relief to the farmers in respect of their grievances against the enacted laws. These are State policy matters especially within the jurisdictions of the Executive and the Legislatures. Any grievance against the law cannot be looked into for grant of relief, unless it breaches any provision of the Constitution or the Fundamental rights. The legality of the Statute has, more after than not no nexus with the economics underlying a protest like the Farmers protest.

For instance, the farmers are vociferously demanding that a statutory status be given to the MSP. How would the Supreme Court issue any kind of relief in this regard, since constitutionally it cannot issue such a mandamus? Besides there is basically an issue of deep lack of trust. Would the government come forward to give an undertaking before the Court that they would never withdraw M.S.P. Evidently not, because if it had any such desire it would have conceded to the demand of the farmers relating to grant of legal status for MSP. Besides, what is the worth of such an undertaking given by the Government to the Court, if cannot be found in a Legislation ? Therefore,this demand of MSP was hardly solvable by Supreme Court. Could the Supreme Court bridge the trust deficit in this regard ? Not at all.

Let us also assess whether Supreme Court could have any role in resolving the other issue of the "repeal of the three laws". Constitutionally, in view of the basic feature of Separation of Powers, Supreme Court cannot issue any kind of direction to the Executive or the Legislature, to repeal an enacted law. The Courts jurisdiction on the face of an enacted law is very limited. It can either declare the law invalid, being beyond the Legislative jurisdiction as per Article 245 and 246 read with the three lists in the Seventh Schedule, or, it may hold it invalid due to breach of any of the Fundamental Rights like Article 14 and 19. In either case law falls and dies. Apart from these, no other grievances raised by the farmers can be addressed by the Supreme Court. Supreme Court cannot go into the economics of the operation of the disputed laws. That apart, the message coming from the stalemate was loud and clear that the Centre was resolute in not withdrawing the laws, so were the farmers in their demand for repeal of the laws. There was no space left for anyone to attempt any kind of negotiated solution.

There is another underlying misconception about jurisdiction here. The farmers are protesting because they feel that the three Farm laws will adversely affect them economically. They would also not achieve any of their proclaimed objectives of improving the returns to the Farmers for their farm produce. The freedoms they propound for the Farmers are illusory. Infact they grant far greater freedom to the corporates and the traders to not only create markets but to rule them. This is their perception on the ground.

Now how would the Supreme Court resolve this perceptional chasm? The laws may be constitutionally justifiable, yet the farmers believe that the laws would be a disaster for them. Can they not protest validly? The protest to be valid does not hinge on the issue of Constitutional validity of the laws. People can always protest against a valid law that they believe would impinge them adversely and get it changed. This is their important Constitutional right against their own Government. After all this is what democracy is about.

Coming back to the earlier question, why should Supreme Court Intervene in the given situation if it is not possible for it to grant effective relief. My guess would be as good as that of anyone else, but nevertheless I would hazard a guess.

a. It could be that it wants to prompt a negotiated settlement to avoid any aggravated situation. A laudable objectives but seems impossible due to the hardened stalemate

b. To mediate in the dispute for its resolution in the light of the recommendations of the ill fated Committee nominated by it.

A bare look at these would suggest that the Court wants to assume an advisory role of a "village elder". Is the Court an appropriate forum? Evidently not, as neither of the adamant parties have solicited its advice or assistance. If the Centre had wanted its advice then it could have easily asked for if under Article 143, even on issues of facts. Farmers are obviously not willing and have completely declined participation. This unsolicited assumption of role by the Supreme Court is not only doomed to failure but is a constitutional heresy. Giving of advice when none are seeking it, betrays lack of understanding of the role assigned to it under the Sun(Constitution). A close parallel to this, is the case of "Vasanth Kumar\" in the year 1985 and it would be illuminating to recall what the greatest of the Constitutional experts, Shri Seervai had to say. This was a case where challenge was to reservation of seats up to 66%- 68% in the educational Institution, under article 15(4). During the arguments, Government of Karnataka proposed to appoint a Commission to look into the whole issue of reservation comprehensively. The Court chose to pronounce opinions as guidelines for the yet to be appointed Commission. In this context the great Shri Seervai expressed his words of amazement vis-a- vis this assumed role. He says, from a quote "where the Court takes upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing". Our Constitution has conferred a most extensive jurisdiction on the Supreme Court to allow or dismiss the petition but not to kill it without doing either. No reference has been made under Article 143 then what was the need for expression of opinion. Moreover, none of the parties are solicitingany suggestions much less promptings.

Shri Seervai further remarks "Not by their roots, but by their fruits they shall judge them". "If decisions rooted in well intentioned innovations, or rooted in the nagging doubts of jurists, sociologists and administrators, or, rooted in the philosophies of Karl Marx, Tawney and Rawl result, in a refusal to decide the fundamental rights of thousands of citizens under Article 15(1) and (4), and Article 16(1), (2) and (4), for years on end, it is time to ask whether there is not something wrong with the soil which yields such bitter judicial fruits. And this raises the question of the true nature of the judicial function.

In fact, they violated Article 145(5), and they also violated the Constitution by exercising an advisory jurisdiction they did not possess. For, it required no great ability, knowledge or judgment to see that apart from article 143, the Sup. Ct. had no advisory jurisdiction. How did it happen that an able Chief Justice and 3 able judges instead of upholding the Constitution, themselves unwittingly violated it"?

If we carefully analyse Shri Seervai'scritique carefully there is no escape from the conclusion that the Orders referred above are not only mis-hits but they represent hit- wicket by our Supreme Court. It should go back to doing what it is defined to do by our Constitution.

Views are personal.

(Author is a Senior Advocate at the Supreme Court of India)

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