On the 12th of January, 2021, a three-judge bench of the Supreme Court (‘SC’) ordered a stay on the application of the three Farm laws, namely the Farmer’s Produce Trade and Commerce (Promotion and Facilitation) Act, 2020, the Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Act, 2020, and the Essential Commodities (Amendment) Act, 2020 (hereinafter ‘Farm laws’) owing to the deadlock in talks between the Central Government and various farm unions in the aftermath of the protests against these Farm laws. Pursuantly, the SC also appointed a four-member committee (‘Farm laws Committee’) to hold consultations with the Central Government, farmers and other stakeholders, ‘for the purpose of listening to the grievances of the farmers relating to the farm laws and the views of the Government […] to make recommendations’ and find ‘solutions’ (para.14(iii) of the Order).
There were, initially, allegations of bias against the Farm laws Committee members, as they had publicly backed the Farm laws previously (here and here). This raised questions over the neutrality of the Farm laws Committee’s recommendations, and whether they would benefit the farmers or parrot the Central Government’s language. The SC, however, shrugged off these allegations and directed the Farm laws Committee to go ahead.
Although the SC’s Order has been critiqued extensively on its merits (here, here, here, here and here), this essay focuses on the issue of what might happen after the Farm laws Committee submits its report and recommendations to the SC – since, naturally, something would have to be done with its recommendations. Interestingly, this issue is also comparable to another matter which pending before the SC, and has thus become more pertinent for us to understand what is at stake.
Separation of Powers and Judicial Encroachment
The Indian Constitution does not, with the exception of Article 50, explicitly provide for the separation of powers (‘SOP’) between the three organs of the State (Legislature, Executive and the Judiciary). Yet courts have accepted SOP as an established principle intrinsic to the Constitution, responsible to ensure checks and balances between the three organs. A more recent reiteration of this understanding was made in Madras Bar Assn. v. Union of India (2014), where a constitutional bench of the SC determined the Constitutional validity of the National Tax Tribunal Act, 2005. Setting the merits of the matter aside, their observations on SOP in India are important. After noting that SOP between the three organs is a facet of the basic structure of the Constitution and chalking out its importance in India’s democratic setup, they observed that “concentration of powers in any one of the organs of the Government would destroy the foundational premise of a democratic government”.
However, these remarks were specifically made in the context of the Judiciary keeping a check on the other two organs, more so when the latter encroach into the domain of the former. Nonetheless, if the sentiments echoed by the SC are considered constant for all forms of encroachments under the scheme of SOP in India, regardless of which organ does it, the Judiciary must be accountable for breaching its boundaries as well – although they have often broken these barriers in pursuit of justice whenever they consider it necessary. Yet, in an ideal democratic set-up, the Executive has – as observed in Ram Jawaya Kapur v. State of Punjab (1955) – the primary responsibility of forming “governmental policy and its transmission into law though the condition precedent” and the “initiation of legislation, the maintenance of order, the promotion of social and economic welfare, the direction of foreign policy, in fact the carrying on or supervision of the general administration of the State.”
After all, the Executive comprises of individuals elected to the Legislature through universal adult franchise, and associated with the party/coalition in power; and, therefore, the Executive alone is obligated to hold consultations, build confidence amongst stakeholders, and address grievances resulting out of laws enacted, enforced and implemented by it. On the contrary, the purpose of the Farm laws Committee – formulated by the SC – is to hold consultations and talks between the Central Government, farmers and other stakeholders to find ‘solutions’ and give ‘recommendations’ – which is a matter of agro-economic policy dealt with by the Executive. Thus, the SC, by formed the Farm laws Committee, has prima facie encroached on the domain of the Executive, without anybody – much less the Executive – keeping a check on their actions.
Committee Recommendations and Judicial Legislations
However, for the sake of an argument, let us assume that the SC is competent to constitute and direct such a Committee to hold consultations. What happens after the Committee submits its recommendations?
A similar problem appeared before the SC in University of Kerala v. Council of Principals (2010). Here, various universities in Kerala had issued circulars ordering college unions’ elections to be conducted in the Presidential format. The same were challenged before the Kerala High Court, which quashed them for lack of statutory backing. When the decision was appealed before the SC, a two-judge Bench formed a four-member committee – the ‘Lyngdoh Committee’ – to hold consultations over how student union elections must be held. The Lyngdoh Committee submitted its report to the SC, and via an order dated 22 September 2006 they ordered the implementation of its recommendations as an interim measure pending final decision on the matter.
When the matter appeared before another Bench in 2010, comprising of JJ. Katju and Ganguly, they doubted the actions of their predecessor Bench in ordering the implementation of the Lyngdoh Committee recommendations. In their separate opinions, the two Justices felt that the prior Bench had perhaps acted beyond its domain under the scheme of SOP by, firstly, forming a committee to hold consultations (which is traditionally a function of the Executive), and secondly, giving effect to its recommendations – thereby giving birth to a ‘judicial legislation’.
Justice Katju predominantly opined that ‘judicial legislations’ – especially like the one under consideration before them – cannot survive under India’s Constitutional scheme. Justice Ganguly, in his partly concurring opinion, however, attempted to justify them and felt they were occasionally necessary. He referred to precedents like those in Vishaka v State of Rajasthan (1997) – which was the foundational law for the prevention for sexual harassment at the workplace in India, until the Parliament enacted a law to that effect. This exemplified how ‘judicial legislations’ could be used for the greater good in situations where the other two organs are inactive or inefficient in tackling a matter of public concern. However, Justice Gangulyy did raise questions over the scope of the SC’s power to make ‘judicial legislations’. Consequently, without questioning the constitution of the Lyngdoh Committee, they referred certain questions related Article 145(3) to a higher Bench, two of which were:
3. Whether under our Constitution the judiciary can legislate, and if so, what is the permissible limit of judicial legislation. Will judicial legislation not violate the principle of separation of powers broadly envisaged by our Constitution;
4. Whether the judiciary can legislate when in its opinion there is a pressing social problem of public interest or it can only make a recommendation to the legislature or authority concerned in this connection.”
The matter remains pending for consideration to this date. In its aftermath, the SC has, repeatedly engaged in matters of policy meant to be dealt with by the other two organs. For instance, in Nipun Saxena v Union of India (2018), the SC gave legal effect to NALSA’s Victim Compensation Scheme in the absence of a uniform scheme across India; or, in Rambabu Singh v Sunil Arora (2020), where they issued direction for all politicians and political parties to reveal their criminal records publicly and submit the same to the Election Commission. There are instances – such as Vishaka – where the SC’s ‘judicial legislations’ are lauded for their impact. Yet there are other disastrous instances like the case of Assam Sanmilita Mahasang v Union of India (2014), where the SC’s sour insistence to supervise and regulate the National Registry of Citizens process in Assam has left millions without citizenship.
Further, in issuing such directions the SC steps into the shoes of the other organs of the government. It attempts to perform their duties without being subject to a similar degree of scrutiny and accountability from the people – people who exercise their democratic rights in choosing their elected representatives. Blindly undermining the role of the elected representative, in such manner is akin to undermining the democratic rights of the very people the SC arguably intends to protect.
The Future of the Farm Laws
With the Farm laws the SC is visibly stuck in a gordian knot. The language of the Order suggests that the SC’s intention behind constituting the Farm Laws’ Committee certainly was not to use their recommendations as an aid while testing the Constitutional validity of the Farm laws – which, ironically, is the primary challenge for consideration before them. They might either give effect to these recommendations for interim relief in the interests of the parties/farmers aggrieved by the laws, or direct the Central Government to give effect to these recommendations. In either case, the apprehensions expressed and issues raised by the Bench in the University of Kerala case, have manifested again.
Further, if the Farm laws Committee submits it recommendations and the SC gives effect to them as interim relief for the farmers, would the SC lift the stay they have imposed on the Farm laws? Without adequately reasoning as to why they imposed a stay on the Farm laws in the first place, such a move would be paradoxical – since putting a stay on laws just to remedy the issues in them through consultation and talks is certainly not the SC’s prerogative. It must also be kept in mind that the petitioners before the SC never asked for the formation of such a committee and only questioned the Constitutional validity of the Farm laws. They, in fact, opposed the formation of such a Committee during the hearings a day before the Order was passed. So, would this tedious exercise not be counterproductive if the SC eventually strikes down the Farm laws as unconstitutional? They could have, thus, appraised the challenge on merits instead of being dither and ordering further consultations and talks without anyone asking them to. The potential fallout would wane drastically.
Without discussing and answering such questions, the SC’s decision after the Farm laws Committee submits its recommendations may potentially set a rash and misguided precedent. It would serve to remind us of the banes, and the hum and haw, affixed to the SC’s judicial (mis)adventures, where they (knowingly or unknowingly) step into the shoes of the Executive or Legislature without possessing adequate expertise on the subject matter before them, or being subjected to electoral scrutiny by the public.
The author is a third year law student at the Symbiosis Law School, Pune.
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