Why can't Supreme Court hear on this issue?

January 11 remains a great day in the current history of the Supreme Court when it strongly stood by the agitating farmers. Chief Justice of India Mr Justice Sharad A Bobde was humane, highly reasonable and was in right form in questioning the political executive's complete failure in dealing with the farmers agitation against its unconstitutional laws. But the interim order next day disappointed many.

The apex Court proposed to form an independent panel chaired by a former CJI to 'amicably resolve' stand-off between protesting farmers and government. It was supposed to be the chaired by the CJI. But the committee was proved to be totally biased and useless as one recused and farmers refused to attend before these members.

A three-judge Bench led by Chief Justice of India (CJI) Sharad A. Bobde made serious observations while underlining its "disappointment" at the way the NDA Government was dealing with the farmers' protest. Chief Justice asked Attorney General K.K. Venugopal and Solicitor General Tushar Mehta, who were appearing for the Centre. "We don't want to make any stray observations against you... But we are extremely disappointed in the way you are handling this situation. You made a law without enough consultation, resulting in a strike. Many States are up in rebellion against you... The whole thing has been going on for months... You say you are negotiating, talking... What negotiating? What talking? What is going on?"

CJI asks AG not to give a lecture

Attorney General was objecting to the intention of the SC to give an interim order against the implementation of the three laws, calling it as a "drastic decision".

He said that 'none of the farm leaders, during the discussions, had shown a single provision in the laws which was unconstitutional". The CJI replied: "Mr. Attorney, sorry to say, we may be taking a decision because you, the Union of India, did not take responsibility. You were not able to solve the problem... You should have been able to solve the strike, but you did not." The AG suggested the Court not to "hurry" to pass the order of stay, Chief Justice Bobde said, "Mr. Attorney, we are giving a very long rope to you. Don't give us a lecture on patience..."

Women up in protest

During the hearing, Chief Justice Bobde appealed to senior citizens, women and children at the protests to return home. "Tell them the Chief Justice of India wants them to go home... Whether you have faith in us or not, we are the Supreme Court of India and we will do our job," he said. This comment sparked off protests from women organizations who criticised it as a patriarchal and unwarranted.

Most problematic part was that the Court did not want to go into the question of constitutionality of the laws at this stage. It should have taken up the case long back when farmers announced a long agitation or at least given the timeline for its hearing. Most of the experts opined that these laws cannot stand the constitutionality test for many reasons.

Govt vs Right to Protest

Attorney General has pointed out that the farmers were going to bring 2000 tractors to "join" the Republic Day parade. Senior advocate Dushyant Dave, however, refuted the claim and said: "Mr. Venugopal, these farmers too have members in the Army. They will do no such thing... Really don't understand the attitude of the government". The AG referred to how rioters recently destroyed the stage where the Haryana Chief Minister was to come. Then Chief Justice Bobde said, "We are not saying we will protect law-breakers. Law and order are the job of the police. We will protect the right to peaceful protest like Gandhiji's satyagraha."

Will majority support the farmers?

Government was arguing that the "majority" in the country thought the farm laws were harmless, then the CJI said the thoughts of the majority would not help resolve the farmers' strike. "We ourselves do not claim to know how to resolve every situation. We are only trying to break the tension and make the atmosphere more conducive for negotiations. We are a constitutional court... Who is going to be responsible if this sabre-rattling goes on?", he stated.

Violence

The CJI warned: Everybody, including the court, would be responsible if any violence broke out. Each one of us is responsible. The responsibility is on all of us, including the Supreme Court, that there will be no bloodshed. We don't want any blood on our hands. There should be no violence. A stray incident can spark violence."

CJI's clarification

To the farmers, the CJI clarified that an order of stay on the implementation of the laws would not mean they have to call off their protests, pack up and go home, and said: "Even after we stay the implementation of the laws, you [farmers] carry on the protest. We don't want any criticism that the court is stifling the protest". He, however, asked whether the farmers would "move a little" from their present protest sites to convenience citizens once the talks with the committee got going.

A committee without basis

The Committee appointed by the Supreme Court fizzled out as soon as it was formed. One member recused and agitating farmer leaders declined to appear before the Committee. A PIL is filed before Supreme Court to remove the remaining members.

Social Media and other media have exposed the bias of the four members chosen by the Supreme Court, within hours of the announcement of the Committee, which was expected to hear the objections, demands, grievances and complaints against the three Farm Laws passed by the Centre. Media has firmly established with proofs that these four have totally supported the hurriedly brought Bills to 'liberate' farmers.

The Farm Laws of the Centre has created an existential challenge for the small and marginal farmers all over the country. They have determined and developed strong agitation preparedness, stationed on roads leading to New Delhi to fight against the farm harm laws. The farmers continued peaceful protest against the farm harm laws is testing the efficacy of the judicial system and posing threat to the political executive. The worst part is that the Government exhibited lack of humanity when they attacked farmers with water cannons amidst 2 degree centigrade cold in NCR and remained silent thereafter.

Can Supreme Court resolve an issue which the centre failed to address? Is it a subject matter of judicial mediation? The apex court has tried perhaps with genuine motive and good faith. The Supreme Court gave an interim order suspending the implementation of three agriculture Acts which were long back notified and prior to that were already in vogue in the form of ordinances. This suspension is no solution for the farmers agitating for their withdrawal. The so-called negotiations are just formal time-gaining strategies and appears to be not intended to arrive at a solution. In fact, when farmers unions say that there cannot be any solution except abolition of laws, which the Government is not willing to. The Centre does not want to accept the 'defeat', or it could be under heavy pressure for continuation of these enactments. In these circumstances there is little scope for any other solution. Each side wanted the other to agree to its demand totally, and hence, there appears no possibility for middle path.

The Supreme Court thought a committee suggested by a non-political entity like judiciary might make agitating farmers to come forward to find a solution. Whether Centre has agreed to this committee? Is there any commitment from the Government to implement the report of this Committee? Would it be legal if the SC issues any final order based on the recommendations of this committee?

Most important question is what criterion was followed in selecting the panellists? But the experts whom SC chose, were already fixed their mind-frame that farm laws are good and beneficial for farmers. They exposed themselves earlier through media writings, interviews etc. It is almost impossible for such members to play a neutral role and convince the farmers that their reasons will be heard when mediators have already drawn adverse conclusions. This is the inherent defect of the committee appointed by the Supreme Court. It is not known whether their views were brought to the notice of the SC. One member has recused himself from the committee, while the farmers unions have already announced that they would not appear before this Committee.

The interim order of the Judiciary basically appears to be an executive function. Whether the Supreme Court replaces the members? Or treats the recusal by member or non-appearance by farmers. Such an order be a proper precedent. There is no conclusion on constitutionality, against which there are many strong arguments. The Court dealt only with the protests and presented its thinking on solution to the stalemate. Instead, the SC should have expedited the hearing this important Constitutional question. When a member recused from the Committee, and when farmers declared that they would not present before this Committee, the authority of the court has suffered a serious dent. How can the SC secure compliance to its order?

(The writer is Professor of Law, Bennett University and former Central Information Commissioner)