The writer is a senior journalist and columnist
The Supreme Court (SC) of India has come under severe criticism for its transgression into the Executive and Legislative jurisdiction, especially in the case of 3-controversial farm laws passed by the Parliament in an alleged unconstitutional way.
Among the critics are ex-judges of SC, a large number of SC lawyers, top academicians, the opposition and above all the agriculture experts and the farmers.
The reason for criticism was that the SC suspended the operation of three farm laws till further orders, and also formed a 4-member committee to look into all the aspects of farms to assist the court in preparing a report after consulting all the stakeholders including representatives of protesting farmers unions protesting around Delhi border.
The SC, which was required to look into the constitutional validity of the three controversial farm laws, passed in a hurry in an unconstitutional manner by suspending eight opposition members in Rajya Sabha, and also without allowing the division of votes as demanded by some sitting members sitting, while some were protesting in the well of RS. The Rajya Sabha TV which provides live transmission of its proceedings was also switched off at that time.
The Supreme Court further very emphatically pointed out in the judgment that it is the duty of the executive to handle the protests and protestors and the executive should not try to find the shoulders of the Supreme Court every time. The relevant paras of the judgment are reproduced below and read as:-
“We are also of the view that the High Court should have monitored the matter rather than disposing of the Writ Petition and creating a fluid situation. No doubt, it is the responsibility of the respondent authorities to take suitable action, but then such suitable action should produce results. In what manner the administration should act is their responsibility and they should not hide behind the court orders or seek support therefrom for carrying out their administrative functions. The courts adjudicate the legality of the actions and are not meant to give shoulder to the administration to fire their guns from. Unfortunately, despite a lapse of a considerable period of time, there was neither any negotiation nor any action by the administration, thus warranting our intervention.”
This vindicates the “dishonesty” of the ruling party which asserts its brute majority in parliament. The highly important bills, which concern the 70 percent of the people of the country, were even bypassed by overstepping a norm that demands their reference to the parliamentary agriculture committee.
Moreover, agriculture is a state subject and hardly comes under the preview of the Centre government. Rather than looking into the illegality and constitutional validity of the controversial 3-farm laws, the SC assumed the role of a mediator to help the Centre government solve its problem, which it has failed to resolve. The top law officer of the county Attorney General K.K. Venugopal also “lied” before the bench stating that these laws were under discussion for the last 20 years.
The list of committee members includes Bhupinder Singh Mann, the national president of the Bhartiya Kisan Union and All India Kisan Coordination Committee; Dr. Parmod Kumar Joshi, an agricultural economist who is also the Director for South Asia, International Food Policy Research Institute; Ashok Gulati, agricultural economist and former chairman of the Commission for Agricultural Costs and Prices; Anil Ghanwat, the chief of Shetkari Sanghatana, who in articles written in the media have expressed views in favour of the farm laws.
However, one member Bhupinder Singh Mann, president Kendraiya Kissan Union (Mann) excused himself from the committee stating that he was with the farmers and supports their demands. All the experts of the committee have been supporting the controversial Farms Act from go one and wrote supporting articles in national newspapers and appeared in TV interviews appreciating the Farm laws.
Even before the SC listed the case of Farms Acts, the protesting farmer had said that they would not appear or associate with the SC proceedings at any stage of development. In farms, representatives view the decision to repeal the three farm acts falls in a preview of the parliament. It is Bhartiya Janata Party’s (BJP) political decision and the political leadership of the country needs to repeal them. Also make law for providing legal sanction the Minimum Support Price (MSP) of 16 agricultural outputs including wheat, paddy, sugar cane etc. On what basis the SC has given a suggestion to protesting farms to return home. Its role as a mediator of the government is also severely condemned and the former supreme court judge Justice Markandey Katju made strong comments against the Chief Justice of India and the three-member bench and ridiculed them for their “baseless” order without recording the grounds to pass an order like this, which has no constitutional validity.
Women protestors at Shingu Border Delhi
Justice Katju said it is the business of the executive and police to maintain law and order around Delhi.
Now comes the question which the petitioner in his plea pointed out “inconvenience to public”, a ground for removing them. The Supreme Court in the Shaheen Bagh sit-in women protests case has very emphatically pointed out in its judgment that it is the duty of the executive to handle the protests and protestors and the executive should not try to find the shoulders of the Supreme Court every time. But in the case of the protesting farmers who have come from several parts of the country, why the SC is shifting its stand by not following its earlier order? And why is it jumping into the Executive and Legislative area of operation? It is a cause of worry for every citizen.
The sit-in by farmers from all parts of India (it has entered in 56th day), has come close on the heel of a sit-in protest at Shaheen Bagh against the Citizenship Amendment Act and proposed move by Central Government to implement National Register of Citizens for entire India. The parallels are bound to be drawn. While the nature and magnitude of both the protests is quite different but the government response has been very much on the expected lines. The matter has now reached the Supreme Court which again indicates that it is following the same trajectory. The Petitioners, through a clutch of petitions, have approached the S.C. seeking removal of protestors from Delhi-NCR borders on the ground that it violates the rights of free movement of the petitioners and general public.
Bridegroom participating at Singhu Border, Delhi
While the national capital had been witnessing many such protests in the past and enough judicial pronouncements, guidelines, and SOPs are there to guide the administration to handle protests. Recently the Supreme Court in the case of Mazdoor Kisan Shakti Sangathan v. Union of India & And- (2018) 17 SCC 324, while dealing with similar situation and grievances, had discussed in some detail the issue of balancing the right to protest with the rights of residents of area around Jantar Mantar which was the site of the protest in that case.
The Supreme Court dealt with the same issue again in a case titled as Amit Sahni Vs. Commissioner of Police (Civil Appeal 3282 of 2020). The petitioner therein approached the Supreme Court for removal of blockage of a stretch of G.D. Birla Marg, which connects Delhi to Noida, by the sit-in protestors at Shaheen Bagh. When the matter was finally taken up by S.C. on 21-9-2020 the sit-in protest had already ended way back on 24th March and matter was virtually rendered infructuous. But on the request of the petitioner Supreme Court agreed to keep the matter for consideration precisely on the point of need to balance the right to protest with the right of mobility by other people. A three-judge bench of the Supreme Court finally gave its verdict on 7th October, 2020. The Court though accepted the right to protest by citizens in a democracy however it further held that the protest should be held in ‘designated places alone’. The relevant portion of para-No.17 of the judgment reads as under: -
“However, while appreciating the existence of the right to peaceful protest against a legislation (keeping in mind the words of Pulitzer Prize winner, Walter Lippmann, who said “In a democracy, the opposition is not only tolerated as constitutional but must be maintained because it is indispensable”), we have to make it unequivocally clear that public ways and public spaces cannot be occupied in such a manner and that too indefinitely. Democracy and dissent go hand in hand, but then the demonstrations expressing dissent have to be in designated places alone. The present case was not even one of the protests taking place in an undesignated area, but was a blockage of a public way which caused grave inconvenience to commuters. We cannot accept the plea of the applicants that an indeterminable number of people can assemble whenever they choose to protest.’
The Supreme Court further very emphatically pointed out in the judgment that it is the duty of the executive to handle the protests and protestors and the executive should not try to find the shoulders of the Supreme Court every time. The relevant paras of the judgment are reproduced below and read as:-
“We are also of the view that the High Court should have monitored the matter rather than disposing of the Writ Petition and creating a fluid situation. No doubt, it is the responsibility of the respondent authorities to take suitable action, but then such suitable action should produce results. In what manner the administration should act is their responsibility and they should not hide behind the court orders or seek support there from for carrying out their administrative functions. The courts adjudicate the legality of the actions and are not meant to give shoulder to the administration to fire their guns from. Unfortunately, despite a lapse of a considerable period of time, there was neither any negotiation nor any action by the administration, thus warranting our intervention.”
“We the only hope that such a situation does not arise in the future and protests are subject to the legal position as enunciated above, with some sympathy and dialogue, but are not permitted to get out of hand.”
Now after the clear enunciation of legal position and law by the Supreme Court in Amit Sahni’s case the instant clutch of petitions seems to be misdirected. The three judges’ bench of the Supreme Court in its judgment dated 7th October, 2020 has dealt with this very issue of balancing the right to protest with the right of free movement of other citizens and in the view of the authors the issue stands authoritatively answered by the Supreme Court. Approaching the Supreme Court again by raising the same very issue and seeking to get still one more judgment will not salvage the situation. The Supreme Court in Amit Sahni’s judgment has also clearly held that it is the job of the executive to deal with such situations but it seems that petitioners, who are statedly espousing public cause and are being represented by heavyweight counsel/s, are doing Government’s bidding in order to obfuscate the situation. The attempt, it seems, is to shift the limelight from the Central Government and its actions which has brought the lakhs of farmers at the borders of Delhi-NCR.
Haryana farmers protesting at Singhu Border, Delhi
Even though the initial attempt of the Government machinery was to malign the image of protestors by calling them anti-nationals, pro-Pakistan, pro-China, Khalistanis, and misguided persons than to reach out to them. It was only when the number of protestors at Delhi borders swelled by leaps and bounds and persons from several other States also joined the protests that the Government decided to engage with them.
The Supreme Court it appears is unwittingly lending its shoulders to the executive to fire their gun from though in its three-bench judgment in Amit Sahni’s case the Supreme court had effectively put the ball in the executive's Court.
(Legal inputs provided by an advocate practising at the Punjab and Haryana High Court in Chandigarh)
The writer is a senior journalist and columnist