This is not just about the fact that all four members of the ‘expert committee’ – set up by the court to hear from all relevant stakeholders and report – have already expressed their support for the laws and argued against their withdrawal. The problems with the court’s approach go deeper but unfortunately run contrary to its functions as an institution.
What Is the Role of a Constitutional Court in a Crisis Like This?
The SC can no doubt end up getting drawn into important socio-political flashpoints of the day, but its role in them must nonetheless relate to the legal issues involved, where it can play a judicial function.
First, it should ensure that the fundamental rights of the protesters are protected. To an extent, the court has done this here, by refusing to order removal of the protesters or set guidelines for them to follow, despite being urged to do so by a number of petitions filed before them.
Nonetheless, there have been some less-than-helpful remarks by the judges that have generated controversies and have not helped build trust with the protesting farmers.
These include Chief Justice of India SA Bobde’s comments about how women and elderly people shouldn’t be ‘kept’ at the protests (ignoring their own agency) and requests to lawyers for the farmers’ unions asking them to go back, as well as the concluding paragraph in the order suggesting the stay order should be enough to satisfy the protesters for now.
Secondly, they are meant to deal with any challenges to the constitutionality or legality of the farm laws themselves – issues which are already at play in a number of petitions before the court and those tagged along with the matters taken up by the court in its hearings over the last couple of days.
This is where, of course, the apex court has been in troubled waters for several years now, failing to take up such cases where the constitutionality of a law is being challenged with any degree of urgency, to the point where the delay in hearing the matter renders it a fait accompli. From Aadhaar to Kashmir, by way of demonetisation and electoral bonds, this has become a recurring theme in the court’s recent history.
While the challenges to the farm laws have not yet been around for too long, the court once again does not appear to be showing any sort of urgency to hear the arguments regarding their legality. Instead, it is focusing on this path of setting up a committee to hear farmers’ grievances.