Sunday, October 17, 2021

Why is AG asking SC about police powers?

Surprisingly, the police and the Centre are asking the Supreme Court to guide it what police must do to prevent the farmers’ plan to organize the tractor’s rally on Republic day.  It is a tricky question because whatever is the answer from SC to this question, it amounts to prior sanction for use of authority.

SC said that it was not for the Court to decide who will be allowed to enter Delhi or not, and the number of people to be allowed as that was a matter of law and order, and for the police to decide. This was stated by CJI SA Bobde while hearing a plea of Delhi police seeking to prohibit protesting farmers from holding a proposed tractor/trolley/vehicle march or any other kind of protest, which allegedly might disrupt Republic Day celebrations.

Though petition was filed by Delhi police, the Attorney General appeared and said that the situation at hand was extraordinary. The CJI retorted, “Why do you want us to tell (you) what powers you have? Does the Union of India need the Supreme Court to tell (them) what powers it has under the Police Act.” Does this mean a permission to use whatever powers the police has? The powers cannot be used simply because the authorities have the powers. The situation, circumstances, and context would decide what to do. As per law, it is not the police but the Executive Magistrate has to decide exercising his personal discretion depending on the situation.

Also Read: Will SC ‘stay’ the implementation of Farm Acts?

The Delhi Police in its plea referred the possibility of protest rally from farmers to enter Delhi on Republic day, which might disturb the official programs. 

Earlier, the apex court stayed the implementation of the three farm laws until further orders and constituted a four members Committee for the purpose of listening to the grievances of the farmers about the farm laws as well as the views of the Government and to make recommendations thereafter.

On January 11 it made a sincere effort to intervene to end the stalemate between the Centre and the agitating farmers, but it could not make any progress. On day one, the observations of the CJI generated hopes but there was no positive response from the Centre to take it further to resolve the issue.  Next day it was a disappointment. Chief Justice of India Mr Justice Sharad A Bobde questionedthe complete failure of the Executive. It is not ready to understand the unconstitutionality of the laws and the need for protection to 80 percent of the farmers from the contractors and corporators.

It’s proposal to form an independent panel chaired by a former CJI to ‘amicably resolve’ stand-off did not take off. It was supposed to be the chaired by former CJI, whose name was not decided. The committee could not start because there was no head, and the members chosen by CJI were not neutral.

CJI’s serious observation

A three-judge Bench led by CJI Sharad A. Bobde made serious observations while underlining its “disappointment” at the way the NDA Government was dealing with the farmers’ protest.  Chief Justice asked Attorney General K.K. Venugopal and Solicitor General Tushar Mehta, who were appearing for the Centre, “We don’t want to make any stray observations against you… But we are extremely disappointed in the way you are handling this situation. You made a law without enough consultation, resulting in a strike. Many States are up in rebellion against you… The whole thing has been going on for months… You say you are negotiating, talking… What negotiating? What talking? What is going on?”

Attorney General was objecting to the intention of the SC to give an interim order against the implementation of the three laws, calling it as a “drastic decision”.

He said that ‘none of the farm leaders, during the discussions, had shown a single provision in the laws which was unconstitutional”.  The CJI replied: “Mr. Attorney, sorry to say, we may be taking a decision because you, the Union of India, did not take responsibility. You were not able to solve the problem… You should have been able to solve the strike, but you did not.” The AG suggested the Court not to “hurry” to pass the order of stay, Chief Justice Bobde said, “Mr. Attorney, we are giving a very long rope to you. Don’t give us a lecture on patience…”

Also Read: Hold farm laws or we will, SC to Centre

Women up in protest

During the hearing, Chief Justice Bobde appealed to senior citizens, women and children at the protests to return home. “Tell them the Chief Justice of India wants them to go home… Whether you have faith in us or not, we are the Supreme Court of India and we will do our job,” he said.  This comment sparked off protests from women organizations who criticised it as a patriarchal and unwarranted.

Most problematic part was that the Court did not want to go into the question of constitutionality of the laws at this stage. It should have taken up the case long back when farmers announced a long agitation or at least given the timeline for its hearing. Most of the experts opined that these laws cannot stand the constitutionality test for many reasons.

Govt vs Right to Protest.

Attorney General has pointed out that the farmers were going to bring 2000 tractors to “join” the Republic Day parade. Senior advocate Dushyant Dave, however, refuted the claim and said: “Mr. Venugopal, these farmers too have members in the Army. They will do no such thing… Really don’t understand the attitude of the government”.  The AG referred to how rioters recently destroyed the stage where the Haryana Chief Minister was to come. Then Chief Justice Bobde said, “We are not saying we will protect law-breakers. Law and order are the job of the police. We will protect the right to peaceful protest like Gandhiji’s satyagraha.”

Will majority support the farmers?

Government was arguing that the “majority” in the country thought the farm laws were harmless, then the CJI said the thoughts of the majority would not help resolve the farmers’ strike. “We ourselves do not claim to know how to resolve every situation. We are only trying to break the tension and make the atmosphere more conducive for negotiations. We are a constitutional court… Who is going to be responsible if this sabre-rattling goes on?”, he stated.

Also Read: Farm Harm Law –II: Centre Removes the State’ power to regulate supply of Essential Commodities

Violence

The CJI warned: Everybody, including the court, would be responsible if any violence broke out. Each one of us is responsible. The responsibility is on all of us, including the Supreme Court, that there will be no bloodshed. We don’t want any blood on our hands. There should be no violence. A stray incident can spark violence.”

CJI’s clarification

To the farmers, the CJI clarified that an order of stay on the implementation of the laws would not mean they have to call off their protests, pack up and go home, and said: “Even after we stay the implementation of the laws, you [farmers] carry on the protest. We don’t want any criticism that the court is stifling the protest”. He, however, asked whether the farmers would “move a little” from their present protest sites to convenience citizens once the talks with the committee got going.

The Farm Laws of the Centre has created an existential challenge for the small and marginal farmers all over the country. They have determined and developed strong agitation preparedness, stationed on roads leading to New Delhi to fight against the farm harm laws. The farmers continued peaceful protest against the farm harm laws is testing the efficacy of the judicial system and posing threat to the political executive. The worst part is that the Government exhibited lack ofhumanity when they attacked farmers with water cannons amidst 2 degree centigrade cold in NCR and remained silent thereafter.

Can Supreme Court resolve an issue which the centre failed to address? Is it a subject matter of judicial mediation? The apex court has tried perhaps with genuine motive and good faith. The Supreme Court gave an interim order suspending the implementation of three agriculture Acts which were long back notified and prior to that were already in vogue in the form of ordinances. This suspension is no solution for the farmers agitating for their withdrawal.  The so-called negotiations are just formal time-gaining strategies and appears to be not intended to arrive at a solution. In fact, when farmers unions say that there cannot be any solution except abolition of laws, which the Government is not willing to. The Centre does not want to accept the ‘defeat’, or it could be under heavy pressure for continuation of these enactments. In these circumstances there is little scope for any other solution. Each side wanted the other to agree to its demand totally, and hence, there appears no possibility for middle path.

Also Read: What is the background of four members of SC committee?

The interim order of the Judiciary basically appears to be an executive function.  There is no conclusion on constitutionality, against which there are many strong arguments. The Court dealt only with the protests and presented its thinking on solution to the stalemate. Instead, the SC should have expedited the hearing this important Constitutional question i.e., whether thee farm laws are constitutional?

Prof. M. Sridhar Acharyulu
Author is Dean, Professor of law at Mahindra University at Hyderabad and former Central Information Commissioner. He published a number books in English and Telugu.

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