Democracy and the role of judiciary

The Supreme Court had suspended the implementation of the three contentious farm laws until further notice and set up a committee of experts to facilitate talks between the Union government and farmer unions to help resolve the impasse.

Ours is a democracy with a written Constitution. We have a vibrant Legislature, Executive and Judiciary. Framers of our Constitution should have kept in mind the sane advice of French political philosopher Montesquieu who was best known for The Spirit of Laws (1748), one of the great works in the history of political theory and of jurisprudence.

He postulated that concentration of power in one person or a group of persons results in tyranny. And, therefore, for decentralisation of power to check arbitrariness, he felt the need for vesting the governmental power in three different organs — the Legislature, the Executive, and the Judiciary.

This arrangement is well accepted by all the wings of democracy and more emphatically by the judiciary. In Sidheswar Sahakari Sakhar Karkhana Ltd vs. Union of India, the Supreme Court ruled, “...Normally in such policy matters, a court of law will not interfere unless the policy is shown to be contrary to law, inconsistent with the provisions of the Constitution or otherwise arbitrary or unreasonable.”

Farm laws imbroglio

Now the three farm laws have been stayed and the court has arranged for constitution of a committee to look into the claims of the agitating farmers. It is not clear how the primary role of a constitutional court has shifted from validating or quashing to the level of mediating between two sides.

No doubt the judiciary has a primary role in ensuring adherence to the rule of law. If any law is unconstitutional, the court can strike it down. If the court wanted to hear the government on this, it could have kept the laws in abeyance and served a notice to the government for further adjudication. But it is not clear under what constitutional provision the court forming a committee. Is it not the function of the executive to form such committees?

Whenever any legislation is challenged, the court can only look into the validity of the legislation based on constitutional provision and powers of the law-enacting bodies. Whenever any executive action is challenged, the court must only look for the following aspects: Lack of jurisdiction, error of law, error of fact, error of procedure and abuse of authority. Judicial review of administrative action is inherent in our Constitutional scheme, which is based on rule of law and separation of powers.

Else, the judiciary is not supposed to intervene and if it does, that amounts to stepping into others’ territory.

It is a fact that farmers from all States have not opposed the farm laws but only from two-three States are opposing them. It is also a fact that the agitating farmers are not willing to accept anything less than the scrapping of the three laws passed by Parliament. It is a different matter if the Supreme Court decides that the farm laws are unconstitutional. Otherwise, is it not the role of judiciary to uphold the implementation of the farm laws passed by Parliament?

The Supreme Court announced the formation of the committee while staying till further orders the implementation of the three farm laws enacted in September last year. Forming a committee and discussing with the farmers are part of executive function and not of the judiciary.

It will not be out of place to refer to the following observations made by the Supreme Court in ‘Divisional Manager, Aravali Golf Course, vs Chander Hass’: “When a state action is challenged, the function of the court is to examine the action in accordance with law and to determine whether the legislature or the executive has acted within the powers and functions assigned under the Constitution and if not, the court must strike down the action. While doing so the court must remain within its self-imposed limits. The court sits in judgment on the action of a coordinate branch of the government.

“While exercising power of judicial review of administrative action, the court is not an appellate authority. The Constitution does not permit the court to direct or advise the executive in matters of policy or to sermonise qua any matter which under the Constitution lies within the sphere of legislature or executive, provided these authorities do not transgress their constitutional limits or statutory powers”

One wonders where the government has transgressed its constitutional limits or statutory powers in making these farm laws and what extra powers the committee will get to make the farmers to talk to them foregoing their only demand of scrapping the laws.

The writer is a retired banker

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