Supreme Court: Swing between activism and populism

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By: K Raveendran

The approach of the Supreme Court in two aspects of the same issue of farmers’ protest against the Centre’s farm laws displays a wide swing between extreme activism and complete indifference. Worse still, the change of attitude seems to the result of even less desirable judicial populism.

The stay of the farm law, which the court itself described as ‘extraordinary’ has been widely criticised as an unwarranted overreach by the highest court of the land. Legal luminaries were quick to point out court’s limitations in striking down a law passed by parliament for whatever it was worth. On top of that, the formation of a committee of experts to study the issue and arrive at a possible solution to the problem has been described by legal experts as ‘devoid of any legality’. The constitution of the panel itself was so messy that the farmers straightaway rejected its composition, saying it is a panel tasked with pushing the agenda of the government as most of the members were known supporters of the so-called reforms envisaged in the controversial new laws. One of the members even quit, saying he did not wish to ‘compromise farmers’ interests’.

In the second instance, the court refused to step in on behalf of the government in a petition by the Delhi Police to prevent a proposed tractor rally by the protesting farmer on the streets of Delhi on the Republic Day after the conclusion of the traditional R-Day Parade. Rejecting the plea, bench headed by Chief Justice of India SA Bobde said it was not for the court to remind the authorities of their policing power. It refused to pronounce the ‘one word’ that Attorney General K. K. Venugopal wanted it to say to ‘strengthen the hands of the government.

Of course, the court has the right to take any decision on any matter that is brought before it. But it cannot be based on the consideration as to what would be the public reaction to such a decision. But such a consideration does seem to have weighed on the mind of the Chief Justice when he said that the intervention of the court has already been ‘misunderstood’.  He even asked the AG if the court was required to say that the government has the power to do what it thought to be fit.

“The question of entry into Delhi is a law and order situation that is to be determined by the police. We have told the AG and SG before that whether who should  be allowed and who should not be allowed and the number of people who can enter are  all matters of law and order to be dealt with the by the police. We are not the first authority,” CJI Bobde said.

That should be quite a swing between total engagements to complete indifference.

The Supreme Court had exhibited the same kind of approach in the case of the revere migration in the wake of the national lockdown as part of the fight against the Covid pandemic, in which thousands lost their lives and many more millions their livelihood. The court had shown an inexplicable lack of concern when activists approached it against the inhuman manner in which the migrant workers were being treated by the central and state governments as well as all other centres of authority.

It was retired fellow justice Madan B Lokur, who red-flagged the apex court’s indifference to the plight of millions of migrant workers, who walked, cycled and hung on to trucks all the way to their villages without food, water or shelter. Lokur added that the court deserved to be awarded the ‘F’ grade for its handling of the migrants issue and lack of sympathy for their sufferings.

A three-member bench of the Supreme Court, which heard a petition about the miseries of the migrant labour, had said ‘it was not possible for the court to monitor who is walking and who is not walking’. Further, when the petitioner cited the incident in which 16 migrants were run over by a goods train while they were sleeping on the railway tracks on May 8, the bench wondered ‘how can anybody stop this when they sleep on railway tracks?’

It took nothing less than a public outrage to move the court and once it happened, the court suddenly changed tack and at one stage even appeared to have become hyper-active when it came to the cause of the migrant and other unfortunate victims of the lockdown.  A three-man bench directed the Centre and state governments to send all the migrant workers to their native places within 15 days and formulate employment schemes after conducting their skill mapping to rehabilitate them.

That was again a wild swing from total apathy to focus on not only repatriation, but rehabilitation too. (IPA Service)

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