South Asian Insider
Court-appointed committee a non-starter
The only issue over which there is a deadlock is the demand for repeal of the laws. The special committee cannot hear the two sides on this issue. The committee cannot help in this matter. The farmers' unions say the panel's members are pro-laws. They may be right or wrong, but they have expressed their distrust and alleged bias. Evidently, the stay is futile. Whether the court should have transgressed into the deal-brokering domain is another question.
IN an 'extraordinary' order, the Supreme Court has stayed the implementation of the three farm laws passed by Parliament in September last year. It's a stay which records neither reasons nor any finding that the laws are prima facie unconstitutional or that their operation is prejudicial to vital interests. The only justification given is that the farmers have been agitating since long and some have died, and the talks have failed. The other justification is the court's decision to form a four-member committee to hear out the farmers' representatives and the Central Government and to give a report to the court in two months. The court has concluded that the stay be "perceived as an achievement of the purpose of such protest, at least for the present".
Who needed the stay for enabling a compromise? The major agitating unions have rejected the special committee. Their counsels absented themselves, giving an indication of disagreement. One counsel appearing for the farmers of some states said farmers would be badly affected (by the laws). The Attorney General and the Solicitor General opposed the grant of stay. So, for whose benefit was it granted? And for what 'purpose of the protest'? The Central Government and the Prime Minister have repeatedly declared that the laws do not affect the MSP regime and no farmer's land would be taken. The only issue over which there is a deadlock is the demand for the repeal of the laws. The special committee cannot hear the two sides on this issue. The committee is therefore a non-starter. It cannot help in the matter of repeal. The farmers' unions say the panel's four members are pro-laws, even as one of them has recused himself. They may be right or wrong, but they have expressed their distrust and alleged bias. How has the purpose of the protest been served? Evidently, the stay is futile.
Whether the court should have transgressed into the deal-brokering domain is another question. Deals about laws are essentially in the policy domain of the executive. The laws involve a vital policy translated by Parliament into enactment. If some affected interests want alteration or repeal, that also would be a policy matter for the executive to handle. If protests happen and are prolonged, it is for the executive to deal with. Article 32 is not meant for the court to brush aside the basic feature of separation of powers and intrude into the executive's domain. Separation of powers is not merely to protect the independence of the judiciary; it equally restrains courts from encroaching upon the executive's turf. In an embarrassing scenario, a sovereign Central Government is to present its views before the committee regarding repeal of the laws.
The Supreme Court said though it appreciated the submissions of the Attorney General opposing the grant of stay, it 'was not powerless' to stay the executive's implementation of the laws. Firstly, there is no difference between stay of the Acts and stay of the implementation of the Acts. This was an illusionary dissection crafted to stay the implementation of the laws. However, no one contended, nor is it my point, that the Supreme Court lacked power. For that matter, even the High Courts have the power to stay the legislation. What the Attorney General contended was that there is a presumption of validity and laws are not ordinarily stayed and no one had pointed out any provision to be ultra vires. The plea related to the exercise of power and not to the existence of power. The Supreme Court has not said a word about the validity of the laws. It does not examine validity on a prima facie basis. The stay was granted just because there was a prolonged protest going on and the court felt that it should intervene by appointing a special committee. There it clearly transgressed into the executive's zone of negotiation and trampled upon the doctrine of separation of powers.
Notably, Parliament acts with the people's mandate. Therefore, laws are presumed to be valid and the wisdom of the laws is kept by courts outside their ken. Courts do not second-guess the wisdom of policies. Those challenging the laws must make out a prima facie strong case of constitutional invalidity and show serious injury to public interest. But here no one contended and the court did not on its own examine the validity. Yet, the stay was granted solely to aid negotiations.The danger of the above approach is that every time a major law reform happens, there would be protests by those affected, and often large protests accompanied by unfruitful negotiation, and then the court would stay the legislation. The order sets a wrong precedent. Tomorrow, there may be labour law reforms, and workers all over the country in much larger numbers (in several lakhs) may take to the streets to protest. Will they get the same relief?
The order is definitely extraordinary in that it has sputtered and fallen into futility no sooner than it was passed. It's an egregious failure of the Supreme Court to see the abyss into which it would fall by crossing the boundaries of separation of powers and walking into the executive's domain.
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