SC should stay off legislative, executive turf | Economic Times

On January 12, the Supreme Court stayed the implementation of three controversial farm laws passed recently. The court observed that “the negotiations between the farmers’ bodies and the Government have not yielded any result so far,” and ordered “the constitution of a committee of experts in the field of agriculture to negotiate between the farmers’ bodies and the Government of India” as it “may create a congenial atmosphere and improve the trust and confidence of the farmers.”This court-led process seems however to be a non-starter and many of the protesting farmers’ associations have rejected it already. Besides, the lawyers representing the protesting farmers were not present in court when the order was passed, leading to the appointment of mediators unacceptable to them.The court was at pains to clarify in its order that it was not meant to “stifle a peaceful protest,” but its aim seemed clear enough: “we think that this extraordinary order of stay of implementation of the farm laws will be perceived as an achievement of the purpose of such protest at least for the present and will encourage the farmers bodies to convince their members to get back to their livelihood…” Irrespective of the success or failure of the court’s intervention, there is reason to worry about the manner in which the court has gone about this issue.The fundamental problem with the court order is that its legal basis itself is questionable. Ordinarily, an interim order staying a legislation can be passed while the court adjudicates on the constitutional validity of a legislation, as long as there is a prima facie case made against its constitutionality. The court could have gone down that route here too, just as it did recently in the Maratha reservation case. But it chose not to do so. There have been legal challenges to the farm laws pending in the court for three months now. These petitions raise significant constitutional issues pertaining to federalism — the Centre’s seeming takeover of a state subject — as well as to the legislative process adopted in their enactment – the controversial voice vote in the Rajya Sabha. The court, instead of relying on these constitutional questions to stay the law, went ahead and stayed the implementation of the law, as it “may assuage the hurt feelings of the farmers and encourage them to come to the negotiating table with confidence and good faith.” Such reasoning, based on pragmatic considerations at best, cannot pass for legal justification. The court’s disinterest in grounding its reasoning in law is another consequence of the institutional changes that have accompanied the rise of Public Interest Litigation over the last four decades. As part of the trend towards informalism in court behaviour it brought about, PIL did not just lead to dilution of locus standi requirements. Over a period of time, other adjudicative fundamentals too were diluted, such as the need to rely on minimal evidentiary standards or even the need to ground judicial decisions in legal reasoning. All norms of judicial process— from standing to evidentiary standards to public reason to stare decisis (following legal precedents) — seem to be now dispensable in Indian courts.Because of the court’s inability to ground its order in legal reasoning, its concern in this case seems to stem from the political challenge posed by the protesting farmers rather than the legal issues before it. Instead of showing any urgency in adjudicating these important legal issues, and thus performing its judicial role as a constitutional court, it has seemed keener to perform an executive role to help handle the protests. The court repeatedly noted the peaceful nature of the farm protests during the hearings as well as the citizens’ right to protest against laws they perceive as unjust. But the court still strangely seemed very concerned about managing the protests, although its institutional mandate is limited to determining the legal validity of the laws and the protests. The legitimacy of the judiciary as an unelected authority stems from the Constitution, which empowers it to perform judicial review and thus second-guess laws passed by elected legislatures and orders passed by elected governments.Its role as the guardian of the Constitution is to ensure all other constitutional actors stay within their boundaries. Not only is the court increasingly reluctant to perform this judicial role as evidenced by its refusal to expeditiously hear important constitutional challenges in matters like electoral bonds or Article 370, it repeatedly keeps crossing its own constitutional boundaries. The farm laws’ case is another instance of the Supreme Court abdicating its judicial responsibility, while simultaneously performing an increasingly hybrid legislative and executive role. As long as the court acts in a judicial capacity, its constitutional legitimacy is secure. But the more it acts in usurpation of other governmental functions, it stretches its credibility. Bhuwania is a professor at OP Jindal Global University and author of ‘Courting the People: Public Interest Litigation in Post-Emergency India’