The Supreme Court on 12th January had adjudicated to stay the three farmer empowerment laws – Farmers (Empowerment & Protection) Agreement of Price Assurance & Farm Services Act 2020, Farmers Produce Trade & Commerce (Promotion & Facilitation) Act & Amendment to Essential Commodities – against which the farmers of Punjab and Haryana are protesting near the borders of Delhi for the past two months. Various farm unions and politicians like Tiruchi Siva of the DMK and TN Prathapan of the Congress challenged the constitutionality of the laws under Articles 14 , 15 and 21. However, the court didn’t venture into the merits or demerits of this case nor did it examine the constitutional validity of the laws. The court in turn ordered the setting up of a four-member committee to conduct deliberations with all respective stakeholders and submit a report.
The Committee comprises of Bhupinder Singh Mann (National President of Bharatiya Kisan Union), Dr. Pramod Kumar Joshi, Ashok Gulati (Agricultural Economist) and Anil Ghanwat (President of Shetkari Sanghatana) whose selections have led to some speculations due to their public support for these agricultural reforms. But however this article aims to examine how the court in this case has breached the realm assigned to it in the constitution and how this situation of judicial overreach may have a dangerous impact as a precedent while deciding matters of similar nature in the future.
Montesquieu and Separation of Powers
It is important to touch upon the great French philosopher Montiesquieu before elucidating the case at hand. It was in his 1748 word , “The Spirit of Laws”, where he elaborates on the theory of the separation of powers. He writes in Book XI of this magnum opus treatise:
“In every government there are three sorts of power: the legislative; the executive in respect to things dependent on the law of nations; and the executive in regard to matters that depend on the civil law.
By virtue of the first, the prince or magistrate enacts temporary or perpetual laws, and amends or abrogates those that have been already enacted. By the second, he makes peace or war, sends or receives embassies, establishes the public security, and provides against invasions. By the third, he punishes criminals, or determines the disputes that arise between individuals. The latter we shall call the judiciary power, and the other, simply, the executive power of the state.
When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.
Again, there is no liberty if the judiciary power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with violence and oppression”
The Indian Context
Apart from the directive principles laid down in Part-IV of the Constitution which provides for separation of judiciary from the executive, the Indian constitutional scheme does not provide any formalistic division of powers. Though not explicitly stated , some articles tacitly imply this doctrine. Article 50 lists that the State must ensure the independence of the judiciary. Article 121 and 211 of the Constitution provide for the prevention of the discussion of the judicial proceedings of Supreme and High court in the Parliament or Legislature. Article 122 and 212 also prohibit the judiciary from probing into the procedural functioning of the legislatures. However, we do see an overlap of powers. Article 13 empowers the court to exercise the principle of judicial review wherein the court is constitutionally obligated to declare any law or executive order null and void if is violative of Part III. Similarly, Article 118 and 208 states the legislature is empowered to regulate the rules and procedure framework of the judiciary.
Despite this, the Supreme Court has largely defined the separation of powers idea seen through an Indian constitutional lens through many landmark judgements such as Re Delhi Acts Case and of course in Keshavananda Bharati vs the State of Kerala. In fact ,this principle has been even recently more credence through the Divisional Manager, Aravali Golf Course vs Chander Haas, 2007 case. The Supreme Court in the arbiter of this judgement made the following observations:
“Before parting with this case we would like to make some observations about the limits of the powers of the judiciary. We are compelled to make these observations because we are repeatedly coming across cases where Judges are unjustifiably trying to perform executive or legislative functions. In our opinion this is clearly unconstitutional. In the name of judicial activism Judges cannot cross their limits and try to take over functions which belong to another organ of the State.”
The Supreme Court in fact noted in Indian Drugs & Pharmaceuticals Ltd v Workmen (2007) that:
“the Supreme Court cannot arrogate to itself the powers of the executive or legislature… There is a broad separation of powers under the Constitution of India, and the judiciary, too, must know its limit.”
What is even more interesting in this very delicate system of checks and balances is that the same institution in Supreme Court Advocate-in-Record Association vs Union of India , 2015 struck the NJAC Act, 2014 upholding the archaic collegium system. When the legislature and the executive through the NJAC Act, 2014 wanted to bring an effective mechanism to reform and restructure the working of the judiciary, the same venerable institution prevented these two organs of the state from doing so. The Judges pulled up ranks and the SC spoke up as an institution striking down the NJAC Act in a 5 bench judgement with the dissenting opinion being that of Retd. Justice Chelameshawar. To quote the noted journalist Shekar Gupta (in the context of the farm bills) “It is concerning that Supreme Court zealously guards its own domain but wades freely into legislative , executive issues.
The Stay on Farm Laws: A déjà vu moment for judiciary
It surely has not been the first time that the judiciary has acted in such an arbitrary matter on issues beyond its jurisdiction amounting to the phenomenon of judicial overreach. There is a thin line of difference between judicial activism vs judicial overreach. According to Prof. Chirstopher Wolfe, an American constitutional scholar judicial activism is a judicial philosophy that the courts can and should go beyond the applicable law to consider broader societal implications of its decisions. But when this thin line is crossed by the judiciary entering into domain beyond its constitutional mandate it leads to judicial adventurism leading to judicial overreach. Surely the adjudication has been a clear-cut example of this concept. But this hasn’t been the first instance of such haphazard judicial decision.
The recent case of Dr. Jaishri Laxmanrao Patil vs the Chief Minister of Maharasta and Anr. is another crystal clear example. The petitioner had challenged the Maharashtra State Reservation for Socially and Educationally Backward Classes (SEBC) Act, which provided for reservation in employment and education to the Maratha community through the SEBC category in the Bombay High Court. The court had ordered to reduce this to 12% and 13% in education and in public employment on an arbitrary and non-legal basis upholding the act. The reason cited in the judgement was “the larger public interest.” However, this case has been pending in appeal in the Supreme Court it stopped the implementation of the law without staying it based on the Article 13 test of judicial review.
The most cited example of course is the BCCI judgement and the implementation of the Lodha Committee Report regulating the working of the aforementioned institution. In this case, the Lodha Committee had no locus standi on taking over the administration of BCCI because of its registration under the Tamil Nadu Societies Registration Act, 1975. Thus the court should have directed the BCCI to operate within the dimensions of this legislation rather imposing the recommendations of the Lodha Committee. There is also no constitutional basis for the Supreme Court to administer the operations of sport bodies.
Let us take the case at hand now. It is worthy to look at the arguments put ahead by the Attorney General who opposed this order on 2 grounds. Firstly he said the Supreme Court could do so if the court had found prima facie evidence that the three bills lacked legislative competence. Secondly, he said the court is constitutionally obliged to only stay the laws only if it finds them violative of Part III or any other provision. But the court clearly in its judgement never invalidated these laws on the above grounds. What is more important is the dangerous precedent this sets for future legislations of such kind. A fundamental question is to ponder about is this: Has the Supreme Court through the suspension of these laws created a feeling that any pressure group through the means of protest can compel this venerable institution to force the executive to rescind the duly passed laws by the legislature? This also makes it significant the importance of judicial restraint and accountability required in this country for a robust justice dispensing mechanism. But a question could arise in this situation: what if the executive refuses to take a decision on matters wherein the judiciary has to later deal with. The solution was expressed by a former solicitor general of India, Dipankar K Gupta who wrote in a 2007 Hindustan Times article:
“The task of the court should be to compel the authorities to act and to pass appropriate executive orders rather than substitute judicial orders for administrative ones. They must be told how their duties are to be properly discharged and then commanded to do so. For this, they must be held accountable to the court.”
This case actually should be one for introspection regarding not only judicial functioning but also the importance of larger judicial reforms thus facilitating the judiciary also to contribute to the narrative of nation building.
