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Jan 18, 2021

Supreme Court's Role Is to Dispense 'Justice', Not to Arrive at Negotiated Settlements

law
The formation of a committee over the farmers' protests by the apex court is in line with a growing 'trend' of the court to abandon its primary role of hearing the parties on the legality of laws and determining disputes on the touchstone of the constitution.
The Supreme Court of India. Photo: Reuters

The Supreme Court’s appointment of a committee to negotiate and record grievances of the protesting farmers is consistent with a recent trend of the court, where it ventures into the role of a negotiator, and puts off its constitutionally-mandated function of deciding the legality of laws and executive action. In doing so, the top court has carved out a new role for itself – where it takes upon the mantle of being the mediator negotiating between disputing factions.

Instead of hearing the parties on points of law and determining their disputes on the touchstone of the constitution, the court has been delivering negotiated justice by brokering between the parties before it. This is manifested in the growing trend of the court using interim orders to set up ad hoc committees, appointed at the will of each bench, which negotiate between the parties and form the basis of the final orders of the court.

Also read: Watch | With SC’s Stay on Farm Laws, Has the Judiciary Marched into Politics?

This approach has more recently been manifested in the case of the farmers’ protests. The constitution requires the court to decide the constitutional validity of the three laws, but it has chosen to appoint a committee to facilitate negotiations between the farmers and the Central government, going beyond what the constitution permits the Court to do. This also means that the reasons that ultimately inform the Court’s decisions are not necessarily legal, but rather an outcome of collective bargaining monitored by it.

New role, several questions

To be clear, the constitution unambiguously defines the Supreme Court’s role – enforce fundamental rights under its writ jurisdiction (Article 32), and adjudge the constitutional validity of laws; serve as a court of appeal in civil or criminal cases and settle ‘substantial questions of law’ (Articles  132-134) or through ‘special leaves to appeal’ (under Article 136); and finally, in its original jurisdiction, act as a federal court to hear disputes amongst the state(s) and the Central government (under Article 131).

Bhupinder Singh Mann, Pramod Kumar Joshi, Ashok Gulati and Anil Ghanwat were recently appointed by the Supreme Court as a committee to look into grievances of protesting farmers, and to break the deadlock. Mann later recused himself from the committee. Photos: Twitter

In either of these roles, the Supreme Court makes its view known on the basis of hearing the parties before it and interpreting the legal actions of the legislature and the executive in the backdrop of the constitution. Nowhere does the constitution confer upon the court the role of a mediator that monitors ad hoc committees and gives such committees the mandate to negotiate disputes between the parties before it. The court’s duty to adjudicate a dispute stands abdicated in such circumstances.

Since this new role that the court has carved for itself is outside its constitutional mandate, it exists as an unregulated power with no objective basis for its exercise. This raises many questions. For instance, how would the members of such ad hoc committees be chosen? Would it be up to the subjective opinions of the judges constituting the bench in each case? Is there a mandate upon the court to take consent of the parties before it? Should the rule against conflict of interest be applied while choosing such committee members?

Also read: Interview: Justice A.P. Shah Sees a Clear Decline in SC’s ability to Protect People’s Rights

These questions arise from the controversial committee appointments made by the court in the past. After the alleged encounter of Vikas Dubey, the court had expressed its desire to appoint a committee to probe the extra-judicial killing (as it had also done in the encounter in the Hyderabad rape case). Following this, the Uttar Pradesh government notified a committee and sent the names for the court’s approval. This included, amongst others, a former director general of police (DGP) of the Uttar Pradesh police who had earlier in a television debate already expressed support for the police’s actions. Unmoved, the court approved his appointment and dismissed all apprehensions of bias.

In the farmers’ protest too, all the four members of the committee – including Mann who recused himself – seem to have already expressed views in support of the laws. Ashok Gulati, one of the members, has already made it known that he doesn’t favour a repeal of the laws;  Bhupinder Singh Mann had long broken ranks with other unions and publicly accepted the new laws; Anil Ghanwat’s union too had put up a show to support the laws; and Pramod Kumar Joshi had through written articles not only supported the laws but termed the fears of the protesting farmers as “baseless”. This raises serious doubts over how objective these committees would be in their functioning.

Since this manner of settling disputes is outside the court’s constitutional mandate, it also leads to the side-stepping of many constitutional guarantees, otherwise available to the parties before it. In the case of the farmers’ protests, for example, the chief justice-led bench made it clear that it desires the elderly and the women to not be “kept” as a part of the protests, and asked the parties to convey this message to the protestors.

There seems to be no legal basis for those efforts, which unfortunately convey patriarchal undertones. Surely, every citizen has an equal right to protest; and just as the court has little basis in law to perform the role of a negotiator, it has even fewer justifications behind asking women or senior citizens to not exercise their democratic rights under the constitution and be asked to be sent back.

Carving of this new extra-constitutional procedure, therefore, also seems to have taken away the protections that come with the constitution. That this misadventure is led by the Supreme Court of India is a matter of concern and deserving of self-reflection.

Venturing into the political domain

The second side-stepping is of the settled law on when the Supreme Court can stay the operation of any law by way of interim relief, in proceedings challenging that law’s constitutionality. The manner in which the court has stayed the implementation of the farm laws is to that extent unprecedented.

Farmers gesture as they block a national highway during a protest against farm bills passed by India’s parliament, in Shambhu in the northern state of Punjab, India, September 25, 2020. Photo: Reuters/Adnan Abidi/File photo

The Supreme Court on multiple occasions has held that staying the implementation of laws through interim orders, when their constitutionality is being considered, should be done rarely. The yardstick for doing so was pronounced by the Court in Bhavesh D. Parish v Union of India (2005), where the court advocated for judicial restraint in staying the operation of law, unless such law appears to be “manifestly unjust or glaringly unconstitutional”, which might cause irreparable injury or damage if not stayed. This principle was endorsed again by the court in Health for Millions v Union of India (2014), and more recently in Jaishri Laxmanrao Patil v The Chief Minister & Anr (2020).

No such finding has been made by the court in the case of the three farm laws. In its 11-page order that is largely devoted to recording the arguments made before it, the court has not even engaged with whether a prima facie finding on unconstitutionality can be arrived at in the present case. A remedy as exceptional as an interim stay upon the operation of law has seemingly been granted in disregard of judicial precedents and without adequate reasons.

Also read: CJI Bobde’s View of Article 32 is Linked to Apex Court’s Vacillation on Basic Structure Doctrine

In staying the farm laws without due legal reasoning, and in venturing beyond its constitutional functions in forming a negotiating committee, the Supreme Court has waded into the political domain. This is precisely what the members of our Constituent Assembly were so keen to avoid.

The noted historian of the Indian constitution, Granville Austin, has observed that the Constituent Assembly had been careful to keep the judiciary out of politics, and yet it remained concerned with how politics itself was to be kept out of the courts. Its solution was to “strengthen the walls of the fortress with constitutional provisions”.

In side-stepping those constitutional provisions through the manner in which the Supreme Court has dealt with the farmers’ protests, the Court has inevitably let the fortress be breached and allowed itself to mingle into the political territory.

The right way forward for the Supreme Court is to perform its constitutional role and adjudicate on the constitutional validity of the farm laws. A final verdict on the issue shall settle the dispute better than any misadventures into extra-constitutional negotiations at the court’s behest.

Pranav Verma is an LLM Candidate at the University of Cambridge.

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