Supreme Court order on farm laws: None to praise and very few to love it

The order illustrates the axiom, that Indian judiciary's idea of justice is that when two people fight in court over a 100 rupee note, the judge tears it up into two and gives each person a half

The Supreme Court's judgment on the farmers' agitation, is an interim order that, like Wordsworth's Lucy, has none to praise, and very few to love it. The government side thinks that judges have overstepped the traditional doctrine of separation of powers, by interdicting legislation without a final ruling on constitutionality. The agitating farmers accept the stay on implementation of the farm acts, but have rejected the grievance committee offered, as they suspect it to be partisan in composition. To add to the negation, even a member of the committee, has now recused from its membership.

The court's order on the farm agitation, is seen as bargaining to shelve implementation of acts of parliament, at the cost of requiring the farmers to not persist in agitation, but to air their grievances, before a committee, committed to supporting the farm reform bills. The government has thus been given a face-saving exit-route, without officially abrogating parliamentary legislation in the face of determined street protests. Farmers however apprehend that halting their juggernaut of protests, might render it unable to move again, if the committee's recommendations leave them unsatisfied as well.

The process of selection of members of the grievance committee, has been opaque and devoid of participation by the main unions which have propelled the agitation. It is doubtful that the court was fully apprised of the publicly expressed opinions of the committee members, in favour of the farm bills. The only member who had expressed some apprehensions over the bills, has now quit the committee, making it look even more lop-sided.

The order illustrates Professor Marc Gallanter's axiom, that the Indian judiciary's idea of justice is that when two people fight in court over a hundred rupee currency note, the judge tears it up into two and gives each person a half. When both sides are equally dissatisfied, impartial justice is achieved.

The court appears to have forgotten, its own caution in the Shaheen Bagh case, where the judgment warned –

“No doubt, it is the responsibility of the respondent authorities to take suitable action, but then such suitable action should produce results. In what manner the administration should act is their responsibility and they should not hide behind the court orders or seek support therefrom for carrying out their administrative functions. The courts adjudicate the legality of the actions and are not meant to give shoulder to the administration to fire their guns from."

To be fair to the court, this is not the first time that it has exercised its "problem solving jurisdiction", in the interests of defusing an explosive situation. In the early 1990s, the court's stay of implementation of the Mandal Commission report, put a halt to a spate of self-immolations that marked student protests. Three years later, the court upheld the implementation of the report with some riders, but the country remained at peace. Another recent example is the judgment on the Ayodhya temple and mosque site, which however imperfectly has brought a certain quietus. There often is in the judicial system a certain desire to maintain public order, even at the cost of sacrificing a tenet or two, of the law.

However this jurisdiction is best exercised, only at the end of a long non-legal confrontation that has exhausted both parties. Matrimonial lawyers have a saying that divorces are made in heaven. They recognise that unless either party has an urgent need to move elsewhere, or unless both parties are exhausted, a disengagement is not possible. It does appear currently that neither the farmers, not the government has yet reached the point of exhaustion. The farmers have dug in for a long siege, and have announced that they have come in with six months of provisions in hand. The government is sitting on a huge parliamentary majority and is loath to be seen as bowing to street protests. At such a time, even an impartial and correct solution, hastily offered will be looked at suspiciously.

For many, the argument now is that the Supreme Court is neither infallible, not final. Its judgment calls are sometimes based not on principle but on expedience. The court is again likely to revisit the matter, on an application to prevent the agitators from showcasing a tractor parade on republic day, as an alternative to the official parade.

It is therefore wrong to presume that the last word has been spoken. The court may well use the hearing to clarify that its orders are only interim in nature and capable of revision. The court may very well be willing, to reconstitute the grievance committee if so petitioned by the farmers. The court might even lift its stay on the implementation of the act, if the agitating farmers intransigence, provokes it to so do.

Nothing is as yet cast in stone and both sides may do well, to dial down on the rhetoric. The agitation and governmental response are being fought in several fields and the legal arena, is but one theatre of the war. One cannot presume that the Supreme Court battle is over. Navjot Singh Sidhu once famously said, "Wickets are like wives, you never know which way they will turn." The principle may apply to interim orders as well, particularly when they are not met with universal acclaim.

The author practises in the Supreme Court