The Political Fix: ‘Judicial barbarism’ and the farmers’ rejection of the SC-appointed committee
Plus, Arnab chats and the Covid-19 vaccine.
The Big Story: Sound and fury
It has been an eventful few days in India.
On Saturday, the country began its Covid-19 vaccine rollout, a mammoth effort that will put the capacity of the Indian state capacity to the test. The drive began even as questions continued to be asked about Covaxin, one of the two vaccines the Indian government is using: without phase 3 trial results, it is still unclear how effective it is.
The government is rolling out Covaxin to millions of citizens while insisting that it is in “clinical trial mode”. Even as concerns remain about how “informed consent” will work in the case of Covaxin, one doctors’ organisation in Delhi demanded that they be given Covishield, the other vaccine with published efficacy numbers.
The last few days have also seen Mumbai Police file a chargesheet in the case to allegedly manipulate television ratings. The chargesheet includes transcripts purported WhatsApp chats between Republic TV’s Arnab Goswami and Partho Dasgupta, the former Chief Executive Officer of the Broadcast Audience Research Council, which measured televisions ratings.
Details from those transcripts – which have not so far been denied by Goswami – have been emerging over the last few days, suggesting close proximity and coordination between his TV channel and Bharatiya Janata Party leaders including ministers. These include someone named “AS”, as also the “PMO”, presumably the Prime Minister’s Office.
The chats, if accurate, also reveal a certain amount of hypocrisy. Goswami acknowledges, for example, the dire state of the Indian economy – something his channel rarely does. In addition, it suggests that the Republic TV head had access to confidential government information. For instance, three days before the Indian Air Force carried out an attack on Pakistani territory, Goswami told Dasgupta that something big would happen, “bigger than a normal strike”.
Farmers burn copies of the new agricultural reform laws as they celebrate Lohri festival in Amritsar. | Photo: PTI
Amid all this it may have been easy to miss the other major development from last week.
A month and a half after farmers brought their protest against the government’s three agriculture bills to the borders of Delhi, with both sides seemingly deadlocked, the Supreme Court decided to wade deep into the matter.
A bench headed by Chief Justice of India SA Bobde came down hard on the government for its handling of the laws and the protests.
The court – without examining the constitutionality of the laws or the competence of Parliament to pass them – suspended their implementation. Next, it constituted a four-person committee to listen to the grievances of the protesting farmer groups and submit recommendations to the government.
Then, without directly ordering the protestors to go home, the court said it expected the suspension of the implementation of the laws would “encourage the farmers bodies to convince their members to get back to their livelihood”.
For more on the court’s interim order read our explainer. Last week on the newsletter, we explained why the government seemed to be leaning heavily on the court’s expected intervention to resolve the standoff.
This is what happened next: not… much.
The farmers continued to protest. The government stuck to its guns. There was no sense from either side that anything significant had actually shifted.
The farmers welcomed the stay on the implementation of the laws. But they stuck to their demand that they should be compleatly repealed. And they outright rejected the Supreme Court-appointed committee, pointing to the fact that all four members had spoken out in support of the laws – which they had – and claiming they were “pro-government”.
For a Supreme Court that has often played a major role in fraught political moments in India’s past, its relative irrelevance – at least so far – is a significant development. As important was the ease with which the court’s intervention was dismissed, not by a skeptical activist crowd but by farmer unions.
“We were confident that Centre will get a committee formed through Supreme Court to take the burden off their shoulders.”
“All the members of this Committee are pro-government and had been justifying the laws of the government.”
“We never demanded from Supreme Court to form committee, government is behind all these.”
In fact, the pushback seemed intense enough for one of the four named to the committee – Bhupinder Singh Mann – to recuse himself. “I will always stand with my farmers and Punjab,” he said. Mann had also been expelled from his own farm union, the Bharatiya Kisan Union (Mann), which renamed itself the Bharatiya Kisan Union (Punjab).
Other members of the committee claim they will carry out their task and begin speaking to the protesting farmers from January 19, though none of the farm unions have so far agreed to meet them.
Yet the government already seemed ready to tack away from the panel, telling farmers on Friday to form their own informal committee instead. The proposal was promptly shot down.
The Indian Supreme Court may have always been an imperfect institution. But its track record over over the past few years has contributed to a very specific perception of the court, in line with questions raised about the independence of most of India’s autonomous institutions since 2014.
A truncated list of noteworthy Supreme Court developments that contribute to this view would include the unprecedented press conference in 2018 by top judges claiming its independence was threatened, its handling of the controversial questions surrounding the death of Judge Loya, its refusal to take up important matters like the electoral bonds case, its decision in the Ayodha Babri Masjid cases, the difference in its treatment of Republic TV’s Arnab Goswami and renowned lawyer Prashant Bhushan and comedian Kunal Kamra, the manner in which it handled sexual harassment allegations against a sitting chief justice and the systemic problems on display during Chief Justice Arun Mishra’s tenure.
Political scientist Pratap Bhanu Mehta has argued that the Indian Supreme Court is slipping into “judicial barbarism”, characterised by arbitrariness in decision-making and a refusal to conduct “timely hearings of cases that go to the heart of the institutional integrity of a democracy”. This ultimately means that the law has become “an instrument of oppression; or, at the very least, it aids and abets oppression”.
That arbitrariness was certainly on display with its approach to the farmers’ protests. While the court committee has been rejected by the farm unions who say they never asked for one, many others have raised the alarm about the court choosing to stay the implementation of laws passed by Parliament without even a single hearing on whether there is a valid constitutional question at hand.
Farmers depart on their tractors to Delhi to participate in a continuing demonstration against the agricultural reforms. | Photo: AFP
Courts can step in to put a stay on a law when there appears to be a concern about the competence of the legislature to pass a law, if the law violates fundamental rights or if it appears to violate another part of the Constitution. In this case, however, the court put a stay on the implementation of the agricultural laws without actually engaging with those criteria.
As Sruthisagar Yamunan has written, this approach represents a tremendous danger to the functioning of a parliamentary democracy. Even more problematically, the justification cited by the court to justify its actions may, as Yamunan writes, have been based on a wrong precedent.
In the past, the Supreme Court’s inability or unwillingness to take on the powerful has usually only been emphasised by activists or minority groups. Many others continued to see the institution as an impartial body that can act as a check on the government. That view may not have changed for the wider public.
But the decision of farm unions to ignore the court’s intervention and the claim of the apparent “judicial barbarism” suggests that this opinion is no longer restricted to activists or radicals.
What happens next?
A section of the ruling Bharatiya Janata Party has sought to label the protesting farmers as anti-national, secessionist supporters of Khalistan, though others in the party believe this tactic is misguided and will make things worse.
The unions and political parties have condemned the notices sent out by the National Investigation Agency to around 40 people associated with the protests for allegedly being connected to the banned Sikhs for Justice group.
On January 18, the Supreme Court takes up the government’s demand for an injunction against the farm unions’ plan to hold a tractor rally on January 26, as a counterpoint to the annual Republic Day parade.
On January 19, the Supreme Court-appointed committee is supposed to begin work and farm union leaders are scheduled to meet the government for another round of talks to resolve the standoff.
Can’t make this up
Not to return, yet again, to the Times of India, but this headline for a story on India’s Covid-19 vaccine rollout relies on some “nsfw” (not safe for work) imagery.
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