New Delhi: The Supreme Court Tuesday stayed the implementation of the three contentious farm laws and appointed a committee to resolve the conflict with the farmers.
In episode 659 of ‘Cut The Clutter’, ThePrint’s editor-in-chief Shekhar Gupta examined the wisdom and propriety behind this judicial intervention in a legislative matter.
“They (the SC judges) have not spoken on whether laws are good or bad. That is not the Supreme Court’s business anyway. But they haven’t said whether the laws passed the test of constitutional validity or not,” he said.
Gupta added that he had certain reservations about the Supreme Court’s intervention, but these reservations were not based on the merits of the case.
“They are not on the question of whether these laws are good or bad for farmers or whether the government is right or whether these laws were passed in a manner that was constitutional or not…My reservations is precisely on this system of very delicate checks and balances. One should not be wading into the territory of the other,” he said.
Gupta pointed out that when the Executive and the Parliament had passed the committee on Judicial Accountability Act in 2012, the Supreme Court had gotten a large bench together and struck down that law.
“Our concern is that the court, which is so zealous, when it comes to guarding its own domain, from encroachment by the executive, at the same time feels free to wade into those territories,” he said.
The reason they are able to do this is because people, by and large, respect the court and don’t violate its order, added Gupta.
In this case, the court has not decided to even given a primary view or prima facie view to the merits of the law. They have not even heard the petitions challenging the constitutional validity of the law, he said.
Also read: Modi govt is answerable to farmers, not the judiciary. SC’s mediation beyond its remit
Judicial precedents
K.K. Venugopal, the Attorney General of India, said that he questioned the judges’ intervention on the laws on three grounds. He also said that a law can be stayed or struck down only on one of these three grounds.
One is that it has been passed without legislative competence, two that it is violative of fundamental rights, and third that it is violative of other provisions of the Constitution.
Since no such hearing has taken place and no finding has been made, Gupta said, “How can the court intervene and stop it, but the court has gone ahead and done it.”
He then referred to judicial precedents of such a case.
The most recent precedent, according to Gupta, would be the Maratha quota case in Maharashtra. The government of Maharashtra had passed the Socially and Educationally Backward Classes (SEBC) Act.
The Act made provisions of reservations for Marathas, both for admissions and educational institutions and also for employment. The Bombay High Court had upheld the law, but made minor changes when the law was challenged in front of it.
They reduced reservation from 16 per cent overall to 12 per cent for education and 13 per cent for public employment. This was then challenged in the Supreme Court.
Gupta explained that the Supreme Court said, “this needs more consideration because complex constitutional issues were coming in the way”. Then, the SC set up a larger bench to look at this but meanwhile the applicability of this law was stayed.
“They stopped the implementation of a law without staying the law. But, that also was in response to petitions on merits of a law after a high court had held forth on it,” said Gupta.
Also read: Easy money, cycle of debt — why Punjab’s farmers can’t get out of the clutches of arhatiyas
Mandal commission
Another instance is when the Mandal Commission was implemented under former prime minister V.P. Singh in 1990. On 13 August 1990, the government had issued an executive order by way of implementing the Mandal commission report.
This led to protests all over the country, including violence and destruction of property.
In September 1990, this was challenged before the Supreme Court. But it refused to intervene then.
However, as the situation got worse with time, in November 1990, the court stayed the implementation of the law.
There were a bunch of petitions in the Supreme Court challenging this law, identified as Indra Sawhney versus Union of India. The law was challenged by the petitioners on several grounds but there were four major grounds. First, the constitution of the Mandal Commission itself was inherently biased. It had five members, four of them were from the OBCs and one from a Scheduled Caste.
Second, there were 3,743 identified OBCs already and the last caste census was in 1931, and therefore the information was not reliable.
Third, caste doesn’t equal class, and fourth, caste is peculiar to Hinduism, it doesn’t concern any other religion.
Based on these objections, a senior lawyer said and Gupta quoted him: “When I saw the picture of that boy (Rajiv Goswami, who set himself on fire during protests) in flames, I felt the court has to do something…I argued not only on the issue of unconstitutionality but also on the youngsters deaths and maiming…The senior lawyer also said that merits of the law we’ll decide later. But now, the court should just blow the whistle, call a ceasefire because young people are getting killed.”
The name of this lawyer was K.K. Venugopal. Now, on farmers protest, he is exactly arguing the “opposite”, said Gupta.
Watch the latest episode of CTC here:
The author is twisting the issue and misinterpreting the CJI’s obiter dicta
The author has lost a sense of balance of his political prejudices. The CJI did not pass any judgement but only showed his concern for the aged and children because of prevailing pandemic as well as severe cold weather. The is only twisting the issue to suit his political agenda
To be perfectly honest, I much preferred the earlier avatar of this erudite lawyer. At ninety, a man should be chucking the chin of Ananya’s granddaughter.