Supreme Court’s stay on operationalisation of the three farm laws, while setting up an expert committee to hold talks with stakeholders, puts the judiciary on a road rarely traversed. Since December, SC has voiced its unhappiness with the government’s mishandling of the farm agitation at Delhi’s borders. It has expressed concern for the physical and mental health of protesters, lack of wide consultations while tabling the bills, and warned of bloodshed. SC’s noble intent on all these aspects, however, cannot detract from the constitutional scheme of separation of powers.
This carves out the policy and maintenance of public order spheres to the executive and vests the interpretation of laws with the judiciary. The political and socio-economic issues driving the farm agitation and ensuring peace in Delhi are the executive’s headache. The justiciable elements in the imbroglio include competence of Parliament to legislate on agriculture, undermining of state levies on farm trade, and denying farmers right to judicial recourse for enforcement of contracts. Suspending laws passed by Parliament requires invoking legal and constitutional principles at the outset. So courts have ordinarily let laws be or allowed governments to hold them in abeyance while hearing legal challenges against them.
The SC expert panel’s mandate to talk with farmers was originally a parliamentary committee’s remit, bypassing that option damaged government politically. The experts may inform SC about qualitative aspects of the new farm policy. But those are choices best left to governments with their extensive bureaucracy. Judiciary acting on policy prescriptions of experts can complicate the situation where some farmers demand repeal and others offer support. The expert committee’s report and its negotiations deciding the fate of laws or the course of agitations can send subversive signals too. Powerful interest groups demanding concessions may be emboldened to adopt similar pressure tactics to bypass government and Parliament.
Proactiveness on the essentially political farm agitation is at odds with the passivity in determining constitutionality of recent anti-interfaith marriage laws, CAA, or even the archaic sedition law. In sedition the narrow guardrails erected by SC, like incitement of imminent violence, are frequently disregarded when authorities haul up citizens for dissent. Laws that smack of executive overreach, putting individual freedoms and equality in jeopardy, make themselves ready candidates for SC scrutiny. In contrast, stepping out of its judicial comfort zone to quell agitations and untangle policies, without the executive’s resources or mandate, is a needless risk.