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Concerns over the trend of Supreme Court decisions

The Supreme Court of India (Image Source: New Indian Express)

The Supreme Court of India appointed a committee to negotiate and record grievances of the protesting farmers. In recent times, a trend has been observed where the Supreme Court has begun to use interim orders to set up ad hoc committees, appointed at the will of each bench, which negotiate between the parties and form the basis for the final orders of the court.

Although the constitution requires the court to deliberate upon the constitutional validity of the three farm-laws, the court has instead chosen to appoint a committee to facilitate negotiations between the farmers and the Central government. This would also mean that rather than hearing the parties on points of law and determining their disputes upon the touchstone of the constitution, the court is gradually venturing into the zone of brokering political negotiations among the involved parties, attained via collective bargaining.

The role of the Supreme Court, as defined by the Constitution, consists of enforcing fundamental rights under its writ jurisdiction (Article 32) and adjudging the constitutional validity of laws; serving as a court of appeal in civil and criminal cases and settling ‘substantial questions of law’ (Articles 132-134) or through ‘special leaves to appeal’ (under Article 136), and to act as a federal court to hear disputes amongst the states and the Central government under Article 131.

Each of these roles prescribe the court to reach upon a judgement after hearing both the parties and interpreting the legal actions of the legislature and the executive, in the backdrop of the constitution.

Since the role of acting as a negotiator in a political dispute actually lies beyond the constitutional mandate, the recent decision and broader trend of Supreme Court decisions trigger certain questions, such as the manner in which such ad hoc committees would be chosen, would there be any mandate binding the court to acknowledge consent of the parties before it, would the decisions be subject to the subjective opinions of the judges constituting the bench in each case, and should a rule against conflict of interest be applied while choosing the committee members.

All 4 members of the committee chosen by the SC in case of the farmers’ protest, have already expressed views in favour of the farm-laws, raising concerns over how objective would the decisions of the committee, ultimately be.

Although the Supreme Court has played a major role in resolving disputes fraught with political contentions in the past, the distrust at its judgement, among a significant chunk of India’s population, is a relatively new observation. The court has suspended the implementation of the laws, without examining either their constitutionality, or the competence of the Parliament to pass them.

The farmers have welcomed the stay on the implementation of the laws put by the SC, but they have also stuck to their original demand of the laws being completely repealed. They have also out-rightly rejected the committee appointed by the Supreme Court, stating that all four members within it have spoken in favor of the laws and are “pro-government”.

Sample extracts from words of the farmers, published on an article in Scroll, reveal the discontent:

“We were confident that the Centre will get a committee formed through Supreme Court to take the burden off their shoulders,”

“All the members of this committee are pro-government and had been justifying the laws of the government,”

“We never demanded from Supreme Court to form committee, government is behind all these,”

The standoff has apparently been intense enough to drive one of the four named to the committee- Bhupinder Singh Mann- to recuse himself from the committee. “I will always stand with my farmers and Punjab,” he said. Mann had also been expelled from his own farm union, the Bharatiya Kisan Union (Mann), which renamed itself as the Bharatiya Kisan Union (Punjab).

The track record of the Supreme Court over the past few years has been a cause of worry, and is in tandem with questions being raised about the independence of most of India’s institutions since 2014. A number of observations in the recent past have led to this feeling of apprehension and alarm; such as the unprecedented press conference in 2018 by 4 top judges of SC who had claimed that the independence of the court was being threatened, the court’s handling of the controversial questions surrounding the death of judge Loya, its refusal to take up important matters like the electoral bonds case, its decision in the Ayodhya Babri Masjid cases, the difference in its treatment of Republic TV’s Arnab Goswami and renowned lawyer Prashant Bhushan and comedian Kunal Kamra, the manner in which it handled the sexual harassment allegations against a sitting chief justice and the systemic problems on display during Justice Arun Mishra’s tenure…

Owing to its arbitrariness in decision-making and a refusal to conduct “timely hearings of the cases that go to the heart of the institutional integrity of a democracy”, political scientist Pratap Bhanu Mehta has argued that the Supreme Court of India is slipping into “judicial barbarism”. This indicates the law gradually turning into an “instrument of oppression; or, at the very least, it aids and abets oppression”.

While the court committee has been out-rightly rejected by Indian farmers, who said that they had never asked for one, the fact that the court chose to stay the implementation of the farm-laws passed by the Parliament without conducting even a single hearing that would have examined the constitutional validity of the laws and the manner in which they were passed; evokes concerns.

Courts have the authority to put stay-order on a law when there appears to be a doubt about the competence of the legislature to pass that law, or if it violates fundamental rights, or any other part of the constitution. The court has not however, engaged with any of these criteria before putting the stay on farm-laws.

As per an article on Scroll, this approach reflects a tremendous danger to the functioning of a parliamentary democracy, and that the justification cited by the court to defend its actions, have been based on a false precedent.


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