The Supreme Court cannot be a broker of peace between the farmers and the central government. There is no politically correct way of saying this: the Supreme Court’s credibility and majesty is no longer what it used to be. It is bad enough when political parties, media, international bodies, eminent lawyers express a lack of trust in the court, but what do you say when even judges do so? It happened at that famous but futile press conference by four SC judges in 2018. It happens every week when distinguished retired judges publicly voice their disquiet time and again. And now it’s happened again: just last week Justice Rakesh Kumar of the Andhra Pradesh High Court expressed his dismay at the sudden transfer of the Chief Justice of the High Court, remarking that it conferred “an advantage” on Chief Minister Jagan Reddy in the more than 30 serious cases against him, and criticised the lack of transparency in the Collegium’s decisions. He even made the point that High Court judges too, like the Collegium members, are Constitutional appointees. He expressed himself obliquely, of course, in a language which is careful and proper, but no one can doubt either its meaning or his displeasure and disgust. Any intelligent person can read between the lines and come to just one conclusion. This order will be stayed, of course, but the bitter taste will not go away.
In traits such as non-transparency and selectiveness, the Court appears to be acquiring the habits of the government, which has prompted one writer to coin the phrase ” executivisation of the judiciary.” The two are becoming indistinguishable. Which is why I, for one, am not all pleased that the SC has decided to take a shallow dive into the cauldron of the farmers’ agitation and is attempting to adjudicate on the matter. It should not, it should limit itself to examining the legality of the three farm laws which have been challenged in a number of petitions. But it should stay away from this protest itself and for a number of reasons.
It would be fair to state that the implicit trust of a large section of citizens in its decisions is now missing: they may have legal validity but are perceived by many to be devoid of the all-important moral legitimacy that an apex court should command ( and did, until a few short years ago). Legality and legitimacy are not the same thing. This is not the place to go into the reasons- what the court has done and what it should have but has not- beyond stating that I cannot recollect a single decision on any major policy or action of the govt. which has been set aside by the Court in the last couple of years. The order of the 5th of January clearing the Central Vista project is but the latest in a long line of judicial indulgences. It is a supreme- pun intended- irony that whereas in this judgment it finds nothing wrong with the govt. not consulting stakeholders before changing the land use of the area and granting environmental approval, on the farmers’ agitation it advises the govt. to talk to the farmers! Surely, an inconsistency that does not inspire much faith in its obiter dicta. It should, therefore, come as no surprise that the Court’s repeated munificence to the executive has led to further erosion of its moral capital, further compounded by precipitate contempt actions against a select few who are also, incidentally, thorns in the government’s side.
The reason I make this point is that the farmers are perhaps no longer inclined to trust the court. Let us not forget that the court has taken up the farmer protest issue ( as opposed to the petitions against the farm laws), not of its own volition, but on petitions filed by the govt’s proxies who want the protest to be declared illegal and the blocking of roads a cause of “inconvenience” to other citizens. The deja vu here is palpable, it is Shaheen Bagh playing out all over again, where the Court had effectively taken away all public places from citizens and handed them over to the executive and the police in a breathtaking denial of the universal history of democratic protests. The excesses of governments are not checked by drawing-room discussions but by protests in the streets, but the hon’ble judges appear to have missed this.
The first hearing in the Court could have only reinforced the misgivings of the farmers. There was a proforma acceptance that the right to protest is a constitutional given, but the shades of Shaheen Bagh too were present in the observation that it should not affect the rights of other citizens ( translation- do not block roads). There was a lukewarm suggestion that the govt. could consider holding the three laws in abeyance, but before the matter could come to a boil the heat on the executive was turned off and the case adjourned till after the indispensable winter vacations. Did the massive agitation and economic disruption not require a day-to-day hearing by the vacation bench? By adjourning the matter the Court lost its one chance to demonstrate that it could intervene impartially. Now it has lost its relevance as events have spiraled out of its control.
The second hearing on the 7th of this month was no less comforting for the farmers: the court expressed its fears that the huge gatherings could result in a Tablighi Jamat kind of super spreader event for Covid-19. Once again, the fault was found with the protesters, not the government, whose intransigence and high-handedness was apparently not commented upon. It is also strange that the Court drew an analogy with the Jamat event but not with the Namaste Trump event in February 2020 in Ahmedabad, the Bihar election rallies or Mr. Shah’s roadshows in Bengal recently, all equally super spreader events. One doesn’t need a weather vane to see in which direction the wind is blowing.
Secondly, there are no legal issues involved in the protests that could command the Court’s precious time when major constitutional cases are yet to see the light of day for months and years- CAA, vivisection of Jammu and Kashmir, Electoral bonds, habeas corpus: a recent RTI application revealed that there are 1072 applications for bail and suspension of sentence pending in the court. Is somebody’s “convenience” in travelling to Murthal to have an alloo paratha in Sukhdev dhaha more important than these grave legal challenges to the executive? If the Court was really interested in defusing the protests it should have peremptorily directed the government at the first hearing itself to hold the farm laws in abeyance and then hold multi-stakeholder parlays to arrive at a consensus. By allowing the protests to drag on for a few more weeks ( which suits the government) it has not instilled much confidence in the farmer groups.
Thirdly, there is a growing perception that if only the Court had acted more firmly with the central government in the past, ruled on the grave constitutional challenges before it instead of adjourning them for months and years, acted as a brake on the demolition derby let loose by the BJP governments, protected human and fundamental rights with greater vigour- maybe that would have made the government more cautious and circumspect in hijacking all constitutional and Parliamentary norms. Instead, the Court’s largesse has only emboldened the executive to do as it wishes, confident that if push comes to shove it can obtain a judicial endorsement at any time. The farmers know this, and therefore will not trust the Court to find an equitable solution. Can we blame them?
Fourthly, and with respect, the Court is not really in a position to decide on the issues raised by the farmers and resisted by the executive. These are matters of agriculture production, economics, price fixation, food safety, and equity on which no two experts agree. The Court would be out of its depth here, just as it was with BCCI, firecrackers, HSRP number plates, and loan moratoriums. There is no judicial nostrum or panacea which can impose an agreement on the opposing factions, given the total lack of trust between the farmers and the central govt. If the Court does arrive at a decision- any decision- in all likelihood it will be defied by either one or the other of the parties and its enforcement shall only lead to more trouble. The majesty of the Court cannot but be diminished by this.
At the end of the day, the issues involved are political or, at best, belong to the realm of political economics: there is an equal dose of both in them, and neither the knowledge nor training of judges equip them to adjudicate on the merits of the matter. No more stultifying committees are needed- the Swaminathan Committee report has been lying in some dusty corner in Krishi Bhavan crying out for attention for the last 15 years: it should suffice for some time. The best that the Supreme Court can, or should, do is to cajole, compel and coerce both parties to sit at the negotiating table and talk – not “man ki baat” or press conferences, but talk. Lock them up till they arrive at an agreement. This, and no more, should be the limited brief of the Court. It should do nothing, under the garb of a tattered Constitution, to delegitimise these peaceful protests, or to appoint Committees which act as vaccine containers to put issues in cold storage for perpetuity or to permit the use of unnecessary force by the executive ( as has already started happening). For the rest, let the two sides sort out the matter through a democratic, maybe even a political, process. Mr. Modi et al have dug a big hole- literally- for the farmers but find themselves in it. Let them climb out of it of their own- without the help of the Court.
If the Supreme Court does only this, and nothing else, it would have earned the trust and respect of a grateful nation. For what is on the line this time is not only the Supreme Court’s credibility but also its dignity.