The Supreme Court’s order concerning the ongoing farmers’ protest in New Delhi stirs up mixed emotions. The Court’s decision not to interfere with the protest, acknowledging the rights of farmers to demonstrate against the Narendra Modi government’s agricultural reforms as part of their freedom of speech, is certainly laudable. Though, perhaps, we should pause to consider the precarity of our polity, and the grotesquely mediocre expectations we repose in our judiciary, that we celebrate them for offering a pithy restatement of matters made explicit in Part III of the Constitution of India. Yet this abstract unease is better addressed on a future date; more pragmatic concerns entreat attention.
The Supreme Court, in the farmers’ protest case, ought to have quit while it was ahead: instead, it chose to deepen its engagement in the matter, stating that it would help in actively negotiating a settlement between the parties, in the hopes of thawing their current stalemate. Although seemingly innocuous, this intervention is cause for deep concern.
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SC intervention undercuts protests
That the farmers’ unions did not approach the Supreme Court for relief, did not appear in the proceedings in question (only one farmer union was present, the Bharatiya Kisan Union), and have actively asked the Supreme Court to stay out of the matter is telling. By shifting the locus of the government-farmer debate from the streets to the stuffy confines of a courtroom, to be deliberated upon by academics, the protesters would be denied the public scrutiny and media attention they deserve in order to ensure continued pressure on the government to meet their demands. It further allows the negotiation to be mired in red-tapism and bureaucracy – indeed, the case has already been pushed back by a month to enable service to all interested parties – negating the urgency of the matter for the farmers whose very livelihood is at stake. Critically, it also takes control over the matter out of their hands, instead allowing the negotiations to be conducted by those they treat with suspicion to be part of the ‘establishment’. This is for good reason. In just one sitting, the Supreme Court made painstakingly obvious the paternalistic lens through which it views the protests, making the following observations:
“You [farmers] cannot instigate violence and cannot block a city like this. Blocking Delhi may lead to people in the city going hungry. Your [farmers] purpose can be fulfilled by talking. Just sitting in protest won’t help.”
They went further, noting:
“We are also Indian, we are familiar with the plight of the farmers and are sympathetic to their cause. You [farmers] have to only alter the way the protest is going. We will ensure you can plead your case and thus we are thinking of forming a committee.”
It is precisely this high-handed condescension that would make a Supreme Court-mediated negotiation between the two parties unfair to the farmers, significantly undercutting any potential for success they currently possess.
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The Court’s track record
The Supreme Court’s history of dabbling in matters that, ordinarily, fall within executive purview does not make for happy reading. The Court’s attempts to temporarily ban firecrackers during Diwali celebrations have repeatedly been ignored. The Court’s meddling in the Cauvery River dispute, after a final award had already been passed by a special tribunal, prolonged the matter by more than a decade and required micromanagement from the Court on matters that fell far outside its expertise – resulting in frequent non-compliance by the relevant parties. The Court’s order to distribute rotting grains in the public distribution system free of cost backfired miserably, leading to rampant corruption and arbitrage opportunities – a consequence of blithely passing orders without fully understanding their economic ramifications. Similar issues plagued the Supreme Court’s order on the interlinking of rivers. These examples barely skim the surface of the Court’s troubled past in attempting to settle matters of policy rather than law.
This track record is troubling on twin grounds: first, the Court, being composed entirely of legal scholars, obviously lacks technical expertise on such issues – this is equally true in the case of the farmers’ protest. Second, and more worrying, they lack democratic accountability. A poor resolution of the farmers’ protests by the executive would be harmful to their political future, impacting their votes at the next election. No such consequence is present to deter the decision of judges. It is precisely this reason that compelled the drafters of our Constitution to carve out a ‘separation of powers’, leaving extra-legal matters to the discretion of the government: a division that the Court would do well to heed.
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The opportunity cost
That complete justice must be done in every case is a notion oft-repeated within the walls of law schools. It is, undoubtedly, a noble ideal and might well provide the rationale for the Supreme Court’s overreach in the farmers’ protest case. It is, nevertheless, a hopelessly naïve ideal. When one considers the time constraint under which modern judges operate, faced with veritable mountains of filings on a daily basis, a prioritisation is, inevitably, called for. This is precisely why several legal systems are now moving towards the idea of ‘proportionate’ justice: to allocate a court’s time and resources based on the importance of a case and the ability of a court to offer adequate relief. In its pursuit of resolving the current farmer-government stalemate, the Supreme Court will be undermining this very principle.
As much esteem as I hold for our Supreme Court, its allocation of cases and management of resources in recent times imply a clear frailty in the ability to grasp that each case comes with an opportunity cost. By deliberating upon a case for a lengthy period of time, judges deprive themselves of the opportunity to deal with other, more compelling cases. By choosing to interject in the farmers’ protest case, or to open up an examination of the 1975 Emergency proclamation, or to consider Arnab Goswami’s petitions on a priority basis, or to monitor the Central Vista project, the Court deprives itself of the opportunity to address more pressing concerns: the electoral bonds case, the constitutionality of the revocation of Article 370, bail petitions of anti-CAA protesters and of those accused in the Delhi riots earlier this year, habeus corpus petitions and internet restrictions in Kashmir. These are all matters of alarming importance. They are also matters that fall squarely within the competence of the Supreme Court, unlike that of the farmers’ protests. By seeking to mediate a settlement between the farmers and the government, the Court is only doing more harm than good.
The author is a DPhil candidate and Rhodes Scholar at the University of Oxford. Views are personal.