The farmers’ case before the Indian Supreme Court
By Justice Markandey Katju
I spoke on telephone yesterday with a senior sitting judge of the Indian Supreme Court about the farmers’ case being heard by the Court. I was critical of both the interim order of the Court as well as the oral observations during the hearing of Justice Bobde, the Chief Justice of India ( who presided over the bench hearing the case ).
As regards the interim order passed by the Court, I told him I have written an article titled ‘Can Supreme Court stay implementation of a law ?‘ published in hastakshepnews.com.
As regards the oral observations of the CJI, I said these were totally uncalled for.
The CJI Justice Bobde, during the 2-day hearing, orally made several remarks e.g. that there would be blood on our hands if the dispute was not resolved, that old people, women, and children should be told to go home as they were suffering in the cold weather, that corona would spread because of the huge number of farmers gathered around Delhi, etc.
The Attorney General, who was appearing for the Government in the case, said that intelligence reports indicated that Khalistanis were among the crowd of farmers.
I told the judge I spoke to that all this was irrelevant and uncalled for. The Supreme Court should have confined itself to examining the constitutional validity of the 3 laws in question and should have decided whether they are constitutionally valid or not. Also, the Court could have issued a mandamus to the authorities to ensure that roads on the border of Delhi were not blocked by the farmers. But instead of doing so, the CJI made all kinds of observations as if the court was acting as a kind of panchayat.
When I said all this to the Supreme Court judge ( who is a senior sitting judge ) he told me that he said the same thing which I said to him to a judge ( junior to him ) who is a member of the 3 judge bench presided over by CJI Bobde which is hearing the case. That judge who is a member of the 3 judge bench told the judge with whom I spoke that CJI Bobde does not allow the other 2 judges to speak, and he makes all these statements without consulting them. Evidently, these 2 judges are scared to disagree with the Chief Justice.
I then said to the judge to whom I spoke that he should have told that judge sitting on the 3 judge bench that on the judicial side all judges sitting on a bench are equal. Hence he should have spoken out what was in his mind.
In my article ‘Supreme Court order is unconstitutional‘ published hastakshepnews.com I have stated that judges must exercise judicial restraint and not encroach into the legislative or executive domain, in view of the broad separation of powers in the Constitution. If the Court can stay the operation of a law made by Parliament, which is a coordinate organ of the state, then logically the Parliament should also have the power to stay Court orders. This would lead to chaos.
And as regards uncalled for oral observations in court, judges must constantly remind themselves of the dictum of Francis Bacon, former Lord Chancellor of England ” A much-talking judge is like an ill tuned cymbal “