Prime Minister Modi once again demonstrated his shock and awe style of leadership by announcing the repeal of the three Farm Laws on the 19th of this month. Ever since then, many articles have been published about the lessons to be drawn from this year-long tug of war and its predictable denouement. Lessons to be learnt by the government, the media, the Opposition parties, the trolls, the farmers, perhaps even by Greta Thunberg and Rihanna and most certainly by Kangana Runout. But I notice that one important participant in this tourney has been left out of the pedagogy- the higher judiciary. That is a grave omission, for it too has a lot to learn from this misadventure.
It appears to me that in this entire episode the judiciary has been following Mr. Narsimha Rao's famous doctrine of "No decision is also a decision." At least four petitions have been filed in the Supreme Court both against, and in favour of, the farm laws; their constitutional validity has been challenged. Even after one year the Court has not taken them up for substantive hearing and has simply stayed them: it has kept the Damocles sword hanging over the farmers, in the hands of an executive which cannot be trusted even to abide by a judicial order and has in the past overturned some by ordinances. The farm laws have joined a long list of important legislations which have been challenged but are kept in some form of judicial mortuary for years, on ice and developing rigor mortis- CAA (Citizen Amendment Act), Electoral Bonds, Article 370, Kashmir Reorganisation Act, Sedition laws. And with every day of delay in taking a decision on them, the democratic structure of this country becomes even weaker.
One of the reasons for the SKM's (Samyukta Kisan Morcha)'s obduracy was precisely for this reason: they did not expect an early decision by the court, and therefore felt that continued protests/ agitations/ blockades was the only option for them. I know there will be legal luminaries who will tell me that the Court has to follow a roster, a first-come-first served protocol for cases, and that there are 65000 other cases pending. My reply to them is that the apex court is not a McDonald franchise, in its care lies the very existence of the nation, and it needs to distinguish between cases of constitutional importance and of individual import. The former have to be given priority over the latter: the concerns of 400 million farming families surely must rank above Arnab Goswami's bail in the roster.
Day-to-day hearings in the farm laws case ( as in the Ram Mandir case, the reader will recollect) would have saved this nation a lot of grief, bad blood, economic loss, social ruptures and maybe even the lives of a few hundred farmers. A decision- either way- would have probably brought an early end to the protests one way or the other. Both the govt. and the SKM would have had to follow the decision, the govt. because it is constitutionally bound to so, and the farmers because they would have lost public support and legitimacy if they did not. The Supreme Court still commands respect and is seen as the final arbiter of all disputes. Narsimha Rao's doctrine might make sense for the executive but not for the judiciary.
The only part of the farmer's movement which received the SC's attention were the petitions seeking to declare the blockades around Delhi as illegal- the symptoms, not the causes! And even here there was much confusion: one bench called the protests a fundamental right, another one described them as akin to strangling the city. Notices were issued to all and sundry, hearings held, the Court's displeasure for the farmers' action made clear. Herein lies the second lesson for our higher judiciary: distinguish between the socio-political dimension and the purely legal one, and engage yourself with the latter and not the former.
It is no part of the judiciary's mandate to pull the executive's chestnuts out of a fire of its own making. The agitation was the result of the govt's authoritarian and unilateral style of functioning, it's egoistic belief that only it knows best, and that its brute majority in Parliament entitles it to give a go-by to all democratic practices of consultation, debate and Parliamentary practices. It made the witches' soup, it should have been allowed to stew in it. But the Modi govt. has made it a practice to create an untenable situation on the ground, and then to try and extricate itself by using the judiciary through proxy petitions to stifle any opposition or protest. The courts should see through this pernicious stratagem of trying to find a judicial solution to what is essentially a socio-political issue, and give it a wide berth.
The third lesson to be drawn from all this is the eternal truth: the difference between what is legal and what is legitimate: the two are not always synonymous. Hard as it may be for members of the judiciary to acknowledge this, the fact is that in a democracy the sovereign power vests, not in a Parliament, not in a powerful Prime Minister, not even in a Supreme Court, but in the people. A law may be legal but it will lack legitimacy if it is not acceptable to the people. We will perhaps never know if the three farm laws were legal or not because the challenges to them shall abate now with their repeal, but their utter lack of legitimacy has now been confirmed with Mr. Modi's admission that his " tapasya" has failed. The courts can only determine legality, not legitimacy. Which is why they should not get involved in determining the legitimacy of protests, or whether a hundred protesters or two hundred should be allowed at Jantar Mantar, or whether blocking a road amounts to holding a city hostage. Those are not legal issues; even if they are they may raise a question of conflicting rights. These are matters for the executive to address and resolve, and if it cannot do so then it has no right to govern. If the judiciary too gets enmeshed in them it faces the risk of getting dragged down with the executive when the people have spoken.
No truer word was spoken than when the Chief Justice of India recently observed that the government should not have an adversarial attitude to human rights.. Equally, however, the judiciary should not have an adversarial relationship with the citizens. Just as it itself judges the legality of a law, it should allow the people to determine its legitimacy. And in a country where the Parliament and all other checks on the govt. have collapsed, protests are the only avenue for the citizens to rule on that. This should be recognized and respected.
No decision is also a decision. So much the nation owes to Mr Narsihma Rao for his doctrine. Now Supreme Court has started using it very effectively to avoid embarrassment to themselves.Fast learner ����
ReplyDeleteWho represents me?
ReplyDeleteThe farmers' Satyagraha - as the eminent historian Ramchandra Guha terms it - is strikingly similar to the "Inquilab" of Shaheen Bagh. Both crusades were undertaken by communities of people, one being vocational, the other a religious minority - who thought they were foisted laws upon much against their will. Predictably, the judiciary was roped in. And this is where Avay Shukla's discerning summary takes meaning.
ReplyDeleteIn both cases, the protesters were peacefully but firmly against the writ of a unilaterally disposed government. Both took to the streets to showcase their cause with might and mien. However, the dissimilarity with which the judiciary treated the two similar struggles is a striking contrast in jurisprudence.
The Shaheen Bagh verdict was against the fundamental right of people to protest in a public place to the inconvenience of others. It gave the constabulary powers to forcefully evict protesters from sites viewed as causing public nuisance. More importantly, the Supreme Court refused to stay the CAA. These twin verdicts effectively dampened the protests damagingly, as they would now have to be held at sites away from the public, taking their sting away. That the pandemic set in a few months after and compelled all to disperse is another story. Today Shaheen Bagh is but a memory of a valiant struggle laid low by an unsympathetic judiciary, a unipolar executive and an indifferent legislature.
The farmers' struggle, however, is visibly different. The treatment of the judiciary has been far more sanguine, almost like an abetting umpire to a team victory. It refused the government to disallow the farmers from gathering around Delhi. It refused to stay their tractor march into Delhi on the Republic Day. Most importantly, it stayed the farm laws in just about four months of their promulgation. It must be mentioned here that the government itself offered to keep them in abeyance for 18 months, possibly from its confidence of convincing the aggrieved community. "Jab mian biwi raazi, to kya karega qazi" - hence presumably the stay, and the doctrine of Dr. Narsimha Rao came into force.
The inference is that Avay Shukla's observations are illuminating. To my mind, their incidence perhaps impinges better in context of the Shaheen Bagh struggle - where the judiciary in its (questionable) wisdom did not find it necessary to buttress the protesters with speed (their pleas were reportedly heard after 140 submissions), or legal prudence (the fundamental right of a community to protest was subordinated to the fundamental right to public movement).
The farmers' struggle benefitted from all the essentials of speed, sensitivity, socio-political awareness, legality, and non-interference of the judiciary in the legitimacy of its uprising. Perhaps theirs being the second protest, had the benefit of judicial hindsight and later (as the CJI changed), the blessings of a Chief Justice who is far from adversarial towards those seeking justice. It must be said here that the Supreme Court did question the farmers over their recalcitrance subsequent to the stay. We may surmise that it was probably owing to their scant belief in getting speedy resolution with the creation of a committee, particular whose members (possibly all, I do not remember) we for the farm laws.
Avay Shukla handsomely illustrates the imperativeness of a vibrant judiciary in the concluding paragraph of his penetrating synopsis. I align with him, astride a different vehicle.
Had correct parliamentary procedure been followed when framing the laws, we would not have witnessed this drama unfolding on the streets. It is precisely because this authoritarian executive tried to thrust the laws down the throats of the farmers that they rose up in protest. And succeeded.
ReplyDeleteAll the bullshit about 'tapasya' and the king not being able to convince a 'few' doesn't wash. Had it been just a 'few' would the 56" chest ever have agreed to deflate a mite?
The country deserves to get back to being an inclusive democracy! It's about time that the people were allowed to voice their opinion on issues which affect their fundamental rights.
Of fiasco, there appears to be a new one brewing, post the fiasco of the past year which is safely attributable to the obtuseness and obduracy of the ruling regime.
ReplyDeleteThis new fiasco that one detects, though nebulous still, threatens to assume entangling and unsolvable proportions. It appears to be entirely of the exuberant farmers' doing. Freshly ebullient from their new-found victory, they are now wishing to go for the government's jugular. Either that, or hit it damagingly below the belt. Which is why one hears all kinds of loud and harsh voices declaring menacingly the intent of the agrarians to continue with their protest unabated, or else. The need of the hour is perhaps to assess, consolidate, ruminate over a strong "chai" or "tharra", and probably let the scholarly among them like Yogendra Yadav or Darshan Singh give the right soundbytes. Instead of the ever-belligerent Tikait air his threats that may rebound undesirably.
So inebriated are they on with their win that they seem low on chivalry and high on Chivas...hic...! What lesson for the judiciary then...