It has taken just three days for the worst apprehensions and suspicions of the farmers to be confirmed, viz, that running out of options the government would toss the ball into the SC's lap: the public statement of the Agriculture Minister on January 8 that " the farmers could go to the Supreme Court,” was a dead give away that this is what the government was planning. But one did not expect the Court to pick up the ball and, kick it out of play.
The protests did not raise any legal questions which needed to be adjudicated upon, the farmers had repeatedly made it clear that they did not want any arbitration by the Court and that they only wished to interact with the government which they had elected. They had rejected any more Committees.
The Court should instead have gone on with the business of deciding on the other, legal petitions which had challenged the vires of the laws. As Pratap Bhanu Mehta has pointed out in an article in the Indian Express, this tussle is a political process between the government and the people in which the judiciary has no legitimate role.
The only answer to these baffling questions is: by this legal legerdemain the Court has tried, unknowingly perhaps, to bail the government out of a sticky situation and inflicted a self-goal that has plunged it into needless controversy.
The four member committee, all public supporters of the laws, is a non-starter for, as Mehta comments wryly, their appointment violates the first rule of mediation- " the mediators must be acceptable to all parties and appointed in consultation with them."
Bringing the Intelligence Bureau into play as the twelfth man will only tar the farmers with an "anti-national" taint. The IB is to the government of the day what a bespoke tailor is to a gentleman- it will cut the cloth whichever way you want it. In an interesting video aired on NewsclickAbhisar Sharma has detailed instances when the IB has sought to pressurise people, including judges, by unsubstantiated reports, and an instance when the Supreme Court itself rejected its reports as untrustworthy. One can't but ask the troubling question: is the IB input just a prelude to banning the protests and the subsequent use of sovereign violence ?
But the farmers are no fools- they have walked off the field: they have refused to engage with either the Court or its committee, perhaps they may refuse to engage with the Agriculture Minister next. Worse, the Supreme Court's authority will be severely dented if the protestors do not comply with the Court's order : they have already said so. So will the Court initiate contempt against 200,000 men, women and children, give or take a few thousand ?
The Supreme Court has only confounded the issue and made any possible solution impossible; in the words. Had it kept its hands off the protests the government might have climbed down a rung or two, considering the massive support the protests are gaining; now, however, it will hunker down behind the facade of the Committee and refuse to negotiate. The farmers will have no option but to continue their agitation, confronted by an intransigent government and feeling betrayed by the Court.
The Hon'ble judges had an opportunity to quench the flames.Instead of a still- born committee it should have advised- not ordered- the government to take the laws back to Parliament for the examination and discussions which never took place before they were rammed through.
The Court itself should have posted the constitutional challenges to the laws for urgent hearing. Now, unfortunately, that will not take place for at least two months- the time given to the committee to submit its recommendations. The only gainer in this process is the government.
I recollect a scene in a movie about ancient Rome, which I saw many decades ago. Mark Antony was being sent to Egypt by Caesar to enforce the laws of Rome there. Witnessing the soldiers marching off, Caesar had one final advice for his young general : " Take good care of your armies, Mark Antony, for they make your laws legal."
Have we also come to that ?
Avay Shukla is retired from the Indian Administrative Service.