On 12th January, the Supreme Court of India in its interim order stayed the implementation of three farm laws. While hearing the case of Rakesh Vaishnav & Ors Vs Union of India & Ors (2021), the court categorised the petitions into (i) related to the constitutional validity of the legislations (ii) farm laws and its benefits to the farmers and (iii) related to the violation of fundamental rights of the citizens of Delhi, especially on free mobility.
After listing out the above, one would expect the court to deal with these issues by applying legal and constitutional provisions. Surprisingly, in this case, the court has not dealt with any of these issues framed except the committee formation and halting the implementation of the farm laws.
Separation of Powers
The judicial court can stay the implementation of any law only if it finds the elements of unconstitutionality at least at the prima face. Without citing the reasons on the legality or constitutionality, the court’s stay order is a clear encroachment of the executive domain and thereby sets a bad precedent. This amounts to questioning the will and sovereignty of Parliament in the arena of legislative competency.
Seen in the context of the democratic governance framework, the court’s order in this particular case augments democratic regression thereby contributing to the corrosion of Montesquieu’s doctrine of separation of powers. It is important to remind the fact that the Indian Constitution has adopted comparatively a relative separation of powers rather than in its strict sense as seen in American and Australian Constitutions.
Democratic regression begins when the independent judiciary tilts towards judicial legislation or governance, thereby deepening what can be termed as policy crisis or governance failure as pointed out by the top court in this case. The law enacted by Parliament can be stayed only by Parliament by amending or repealing it. The usurpation of the judiciary over the other organs of the government is detrimental to constitutional governance.
In Asif Hameed v. State of Jammu and Kashmir reported in AIR 1989 SC 1899, the Supreme Court has observed that “although the doctrine of separation of powers has not been recognised under the Constitution in its absolute rigidity, the Constitution makers have meticulously defined the functions of various organs of the State… No organ can usurp the functions assigned to another…The functioning of democracy depends upon the strength and independence of each of its organs…”
Constitution of Committee
The Court in the order mentions that “the constitution of a committee of experts in the field of agriculture to negotiate between the farmers’ bodies and the Government of India may create a congenial atmosphere and improve the trust and confidence of the farmers”. From the democratic point of view, the constitution of the committee might be perceived as a step forward in bringing both the parties to the negotiation table to arrive at plausible solutions to the issues.
However, while constituting the committee and defining its composition, the Supreme Court has slightly entered into the policy domain, an area of the legislature. The decision to set up the expert committee is fine but defining its composition is clearly not in the domain of the judiciary and it qualifies as judicial governance.
The protesting farmers have been firm on their stand since the beginning and are of the view that the farm laws are government policy decisions and any sort of intervention by the court may not be able to address the contentious issues in these legislations. The point here is that the writ powers of the courts are not without limitations. The writ powers including Article 142 are to be exercised in coherence with the “rule of law” and within the ambit of doctrine of separation of powers. In the context of judicial control, the courts do not have suo moto power to extend the scope of judicial review to arrive at the policy-related decisions, that too when the matter is sub-judice in nature.
One of the pertinent questions is why the Court did not hear the arguments and spell out its views on the constitutional validity of the farm laws? The court has passed the interim order “with the hope and expectation that both parties will take this in the right spirit and attempt to arrive at a fair, equitable and just solution to the problems”. This optimism of the court is appreciable; however, it distantly reflects the realities at the ground.
Highlighting the need for a self-restraint judiciary, Frankfurter, J of the US Supreme Court in the case of Trop v Dulles, 356 US 86 observes that “It must observe a fastidious regard for limitations on its own power, and this precludes the Court’s giving effect to its own notions of what is wise or politic. That self-restraint is of the essence in the observance of the judicial oath, for the Constitution has not authorized the judges to sit in judgment on the wisdom of what Congress and the Executive Branch do”.
The top court’s interim order in the case of ongoing stalemate between the protesting farmers and the Union government is an indication of non-self-restraint judiciary as it appears to have crossed the Laxman Rekha of the Constitution by stepping into legislative and executive branches of the government. The increasing number of pending cases in the Supreme Court on the constitutional validity of some of the major policy decisions such as demonetisation, Goods and Services Tax, abrogation of Article 370, Citizenship Amendment Act and now the farm laws suffice to understand the democratic decay in the country.
The court has found that there is a governance failure on the part of the government in dealing with the farmer protests. Democracy and governance are the two sides of the same coin. There is a need for strengthening democracy to improve the governance outcome rather than contracting it.
(The author is PhD Fellow & Guest Faculty at Institute for Social and Economic Change [ISEC] and University Law College, Bangalore University. Views are personal)