Tuesday was a dark day in India when in a bizarre constitutional coup, the Supreme Court of India gave official stamp to mobocracy superseding democracy, only to overwhelm the law of the land.
It was a horrible decision by the Supreme Court of India heralding anarchy instead of democracy in its interim order of staying the implementation of the farm laws without looking into its constitutionality. The Supreme Court has no business intervening in a matter that is squarely in the jurisdiction of the legislature.
The basic principle of separation of power separates the Supreme Court and the legislature to their respective jobs of ‘interpretation’ of the law, and its ‘framing’. The Supreme Court has no power to explore the merits of the law but has only one role here and that was deciding on the constitutionality and legality of the three farm laws and it is doing everything but that. That’s a plain violation of the separation of powers. It’s only the legislature that can debate the merits/demerits and amend laws. While the Apex Court can strike down a law, it cannot amend even a comma in it.
But in this case, instead of pronouncing the legality of these laws, the court paddles into political and administrative management of the law. It is nothing but judicial hara-kiri. It is astonishing to witness the Supreme Court positions itself as the savior of democracy only to make a mockery of the parliamentary process.
It is also not a court’s job to mediate a political dispute. How can the Court in its enthusiasm in playing the arbiter, take up into its own hands the ongoing impasse between government and farmers? This raises serious questions. Even in suspending laws, there needs to be some prima-facie legal, logical basis that some lapses might have taken place. But there wasn’t any except strange logic and lame excuses.
What legal doctrine does the court has in staying a law duly passed by both the Houses of Parliament? The doctrine of ‘hurt feeling;’ really, Milord? If that was not enough, the SC bench also made of fool of itself by asking “why no petition supporting the farm Laws was seen.” Can’t the learned judges even comprehend that the demands for intervention come from those who feel aggrieved and not those who are satisfied? This Tweet sums it up well:
Worse, the Court by encroaching into territory beyond its remit is also setting itself up for a fall and facing reputational damage. What if the protesting farmers reject its committee? The farm unions have refused to recognize the Supreme Court’s locus standi in the matter, and most of them will probably refuse to participate in the proceedings of the committee.
A Democracy allows the freedom to protest and to demand change in the laws. The aggrieved can also approach the SC and get the law rejected if the law is illegal or unconstitutional or passed by the Parliament following a wrong procedure. And if nothing comes to their rescue, they can elect a new Government and get the law scrapped. But blackmailing the Government and also the Judiciary by adapting anarchic methods, to get a law halted/repealed, that was duly passed by the Parliament, is not only undemocratic but mobocracy.
In a democracy, the will of the people is supreme and the elected leaders represent the will of the people. How can the self-appointed Judges, the custodian of the Constitution created by We, the People of India, challenge the will of We, the people of India?
People vote to elect a Government that brings in laws and policies for them. The framework governing agriculture and farming needed serious reforms. The government was right to think reforms were necessary and brought laws to cater to the will of India. But a handful of professional ‘protesters’ and ‘activists’, with anarchist methods, influence to get them suspended. Is this democracy?
In principle, any mediation to break the stalemate is welcome. But the mediation has to be a political process between the government and the people. One can have a view on whether the government is right or the protesting farmers’ demands are. But it will be up to the people and the political process to decide the way forward, not the Courts, as long as there is no unconstitutionality involved.
There’s no doubt that the Court has damaged legislative powers irreparably and the Government has lost out, for it has been forced to cede legislative ground to unelected judges.
But what concerns us the most is how come a Government elected with such a huge mandate is behaving so timid and submissive and are reluctant to contest the court’s intervention? They could have simply contested by saying that till the laws themselves are declared unconstitutional; the court need not be interfering in the dispute.
It is disturbing to witness that keeping the constitutionality aside, the Apex Court hides behind the façade of some expert committee that includes two Farm-policy experts and two farm union representatives to ascertain the various grievances. The Government supports the formation of the committee forces us to believe that in their calculation, the farmers won’t appear before the Committee. And even if they do, they will have nothing substantive against the specific clauses of the laws.
However, the saddest part is the precedents the Milords are setting for future interventions.
Protest. Gather in large numbers and threaten the elected Government. Then get support from the whole ecosystem of the opposition parties, and also from anti-nationals, and then get central legislation stayed from the Highest Court of the country. What signal will it send? That a few thousand people with any unreasonable demand can block the roads and exercise the street veto on the parliament!
The apex court’s interim order may be well-intentioned, but it has created mistrust in the protesting farmers about its intention. It is natural when the Court takes into its hand a political impasse that was a government’s job to negotiate and resolve. By appointing a committee, the court has shifted the onus on the farmers to stop their protests, or else appear unreasonable.
Is this conduct of the Court of staying a law on seeing the mob even constitutional? It is a terrible le constitutional precedent, putting on hold laws passed by Parliament without substantive hearings on the content of the laws. It is bereft of judgment and full of cynicism.