Supreme Court sets dangerous precedent for parliamentary democracy

The Supreme Court on Tuesday suspended the application of three agricultural laws against which farmers have been protesting for weeks at the Delhi border. Farmers believe the new laws undermine their livelihoods and pave the way for the corporatization of the agricultural sector.

The difference between suspending a law and suspending the operation of a law is not immediately clear. The ordinance did not flesh out that except to say that the court has the power to stop executive actions by statute.

The court’s decision seriously violates the separation of powers enshrined in the Constitution. Delaying the application of a law without even a single hearing on its merits and drawbacks sets a dangerous precedent for parliamentary democracy.

Instead, the tribunal formed a committee to meet with the farmers and the government and submit a report within two months. Since talks between the two sides are at an impasse, the court believes that conversations with the committee will make farmers more confident that they will return to the table to negotiate with the government.

The terms of the committee seem vague. The court asked the committee to submit a report to it, but it is not clear what this document will be used for in relation to the cases that are before the court.

Committee and constitutionality

For example, what would the court do if the committee report stated that the only resolution farmers want is for the government to repeal the laws?

Under the Constitution, judicial review is the only way for the court to test the legality of a law, whether it is passed by Parliament or in the form of orders by the government. The only way the court can intervene is to strike down laws or at least part of them as unconstitutional, or to enforce them.

For that, however, the court would have to hear the cases. The arguments presented during the hearings would give the court the basis on which to decide whether a law should be upheld. Therefore, the committee’s report would be of little use in the final outcome of cases.

While the court was invited by the petitioners to test the constitutionality of the law, it entered the territory of arbitration by forming a committee and postponed the test of the law. He shies away from his responsibility. The ordinance cites a recent case to note that the court has the power to stop executive action by statute. At the same time, the ordinance also expresses its appreciation for the observations of the Attorney General who vigorously opposed the suspension of the laws in any way.

If there are any differences in case law, the court should first have determined whether it had the power to suspend the application of the law rather than doing so directly.

Worse, the composition of the committee has come under heavy criticism because members have said they support the new laws. Some members even called the protests misguided. How does the court expect farmers to trust this committee? More importantly, how did the court select these people? The order does not say how. This opaque process further erodes the credibility of the committee.

A farmer protests at the Delhi border. Credit: PTI

Respite for the government

In addition, the court, by recording allegations that banned organizations infiltrated the protest, caused further damage to the cause of reconciliation it championed. This court intervention was made not because there was violence (which the court itself welcomed) but because there is an anticipation of violence that could harm life and damage property. However, the court’s position has always been that law and order is the domain of the executive. Will the court now intervene in every protest and will it assume a crucial role of government? What does this mean for democratic protests, which are a vital tool citizens can use to hold government to account?

The court also expressed concern about the participation of women in the protests. It is misguided. Women constitute a substantial percentage of the agricultural workforce and are equal stakeholders. The court cited the Covid-19 pandemic and winter to support its argument that women should be kept away from protests. While this may be true for older people, women and men are equally susceptible to colds and coronavirus. It only reveals a patriarchal mindset that views women as weaker.

That aside, the order is confused due to the different positions taken by the court in previous cases. For example, the court did not find it necessary to suspend the application of the Citizenship Amendment Act despite the fact that protests against it last year were more widespread than agitation against farm laws. The cases have been pending for over a year with no conclusion in sight.

In the end, the decree allowed the government to breathe for two months. Although the court did not call for an end to the protests, it provided the Center with a ruse to stop talks with the farmers, which put immense pressure on it. Instead, he will now speak to the panel appointed by the formed tribunal. Two months is a long time to continue the unrest, since farmers have to return to the fields to earn a living.

Above all, if the protesting farmers refused to participate in the talks with the committee despite the court’s instructions, it would be a huge loss of face for the court.

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