The Court in the Middle

IT IS RARE for the Supreme Court to get caught in political crossfire. Usually, its decisions are hailed or derided on the basis of political affiliations. After the court passed an interim order on a clutch of petitions related to three farm reform laws passed by Parliament, it found itself in the midst of a firestorm. Analysts and commentators of liberal and conservative hues launched a fusillade of criticism at the court. Both sides made one common point: the court had entered a ‘political thicket’ and did not give any coherent reason why it stayed the implementation of the three laws. But for a change, the court has done well to exercise its authority.

The charges against the court make for interesting reading. On the liberal side, the source of anger is the alleged ‘judicial rescue’ of the Government. The basis for this claim is that after multiple rounds of ‘negotiations’ between protestors and the Government, there has been no forward movement. The Government was willing to create a committee to consider farmers’ grievances about the laws, a proposal they rejected at the outset. Now the court has done what the Government wanted to: create a four-member committee, allegedly packed with pro-law experts. This, it is felt, will either dilute the farmers’ protest or will serve as a dilatory tactic and enable the Government to move ahead with its objectives. It is another matter that within hours of the orders being delivered by a bench led by the Chief Justice of India, SA Bobde, the farmers ‘rejected’ the committee and said the protest would continue.

An argument that is seemingly more substantial is that the court should have pronounced the constitutionality of the three laws instead of staying their implementation and that by doing so it has transgressed into the domain of Parliament. An even more alarming claim is that by staying these laws without going into their merits, the court has allegedly acquired a veto over anything passed by Parliament.

Both claims are disingenuous. If one goes through the court’s order, issued on January 12th, one can see that a key part of the legal challenge before the court is the validity of the Constitution (Third Amendment) Act, 1954 that added the provision enabling Parliament to pass the three laws. This was entry 33 in the Concurrent List in the Seventh Schedule of the Constitution that permits the Union Government to control trade in foodstuff, among other things. This is not a bail matter or some other mundane issue that can be disposed of by the court in a single hearing. One can, of course, argue in that case that the court should not have passed a stay order at all. On the surface, this seems a plausible argument. But if one scratches the surface, its disingenuous nature becomes clear: let the farmers and the Government slug it out. It is the ‘judicial rescue’ claim worded differently. This is a nakedly political argument that gives vent to the feeling that Narendra Modi and his Government should squirm a bit, never mind the damage the protest is doing to the political fabric of the country. Viewed dispassionately, the ‘test constitutionality first’ argument is merely nit-picking about timing and not the substance of the case before the court.

The reality is that it is too late to be worried about the court entering a ‘political thicket’. That happened a long time ago and was continuously celebrated as judicial activism by liberals and leftists. The years and decades from 1990 onward are littered with numerous such cases. Examples of the court’s expanding power in this regard abound: Holding the decision of a speaker of an Assembly in anti-defection cases to be subject to judicial review; prescribing the procedure for an Assembly on conducting a vote of confidence, and much more. The celebration continued as long as the court and the executive were on opposing sides, for then, according to Indian theorists, democracy and liberalism were safe and rule of law was furthered. Never mind the fact that separation of powers was increasingly blurred and the court was effectively a political veto chamber when it chose to be one. This was the liberal theory of ‘limited government’ by whittling down the powers of the executive and the legislature. It is faintly amusing to see now that the shoe is on the other foot, Parliament’s authority is claimed to be in danger.

At this late stage in the court’s history of intervention in political issues, one can make a bold case that there is a class of matters where order and stability and national security are in question. Here, the court does have a narrow room for positive intervention. It is happy to note that the court has shown that it is alive to these realities in the last one-odd year. It is important to emphasise that this is an extremely limited and uncharted arena. This has to be so as it is in response to emergent situations—such as the present one—where the court is responding to events. It is certainly not a well-known or even delineated part of its domain. In this sense, the present time is not very different from the one in the late 1980s and early 1990s when the court entered the sphere of the executive and the legislature. Seen from the court’s perspective, there is no difference between then and now: in both instances, it can say that a helping hand is being given to overcome shortcomings of the time. That it should cause heartburn in liberal opinion is understandable. What is baffling is the conservative response to the present case.

The conservative case, too, is based on the claim that the court is interfering in the executive’s domain and the latter alone has the power to sort out political issues, including the farmers’ protest. Here, as in the liberal reaction, there is fear at work. After decades of fragmented governments and authority, Parliament and the executive regained what originally belonged to them, and the court’s intervention allegedly threatens to undo these gains. Usually, conservative positions are marked by pragmatism to solve issues. This time, when the court’s intervention is clearly pragmatic, conservative opinion refuses to see it in that light. The fact remains that there is a deadlock between the Government and farmers. There are two ways out of this situation: either the Government uses force to disperse the farmers or it settles down for what will be a battle of wits and attrition that will leave it with little attention to do anything else. The court’s intervention is practical and ought not to be seen as encroaching on the rights of Parliament and Government, let alone some kind of a ‘judicial rescue’ as it has been imagined by others.

There are two remedies for restoring the original separation of powers as it was in 1950 when the Constitution was inaugurated. The more durable, and difficult, one is for different institutions to respect their boundaries and stay within their domains. In a country like India, where these institutions were planted from foreign soil, this is a tough ask. Even if one sets aside this way of looking at things, it is highly unlikely that inter-institutional politics can be ended merely by good wishes. The other option is to put an end to political fragmentation that led to unwieldy coalitions and a weak executive. Once that happens, restoration of institutional balance becomes feasible once again. That is the course India has taken for now.

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