Yesterday (January 18), in a short yet conclusive hearing, the Supreme Court of India ruled that the Delhi Police is free to decide on the entry of protesting farmers into Delhi around 26 January. The apex court was hearing a plea where the Centre was seeking an injunction against the tractor rally in Delhi on Republic Day.

The matter is set to be taken up again tomorrow (20 January) for discussion in the court while farmers from Singhu and the government will enter into negotiations for the tenth time.

The farmers at Singhu are planning to parade on tractors, voicing their anger against the farm laws in a non-violent way by moving on the Outer Ring Road. The road passes through areas close to Janakpuri, Munirka, Nehru Place, Tikri.

Even though the farmers promise not to crowd before any high-security area or government building, the number of tractors planned for the rally remains uncertain.

While south of the Singhu border, in the national capital, preparations are underway for the Republic Day, trouble is brewing in the north of the protesting site, along the Grand Trunk Road that links Delhi to Amritsar via critical parts of Haryana and Punjab.

Already, the GT Road has become home to impromptu settlements for food and shelter. Farmers travelling from Punjab are being fed and taken care of in these camps, some no bigger than 30 square feet in area. Most of these camps have come up at an interval of 2-5 kilometres.

Even with the moving traffic, the route is flooded with lorries carrying supplies for the farmers at Singhu, from grains for food to logs for the bonfire. There’s no dearth of SUVs parading around on the route as well.

Thus, the threat that the national capital faces on 25-26 January is unprecedented. Surely, a direct threat may not come from the farmers, but human resources in law and enforcement meant for securing the city on perhaps the most highly secured days of the year will have to be squandered on these protesters.

In the hearing yesterday, the central government was seeking an injunction. The Attorney General remarked that order to that effect by the court would have strengthened the hands of the government.

However, on being reminded that the court had intervened on the issue of the laws, staying their implementation, the court dismissed the remark stating that their intervention had been misunderstood, deferring the remaining discussion to 20 January.

However, the stance of the apex court on the issue of a potential law and order situation comes as problematic for many reasons.

Firstly, the court had directly intervened in the issue merely a week ago. Staying the implementation of the laws, even as the protests are concentrated in one area alone, and not taking into account the opinions of farmers across the nation warrants the court to take a call on the developing law and order situation as well. It cannot only do the easy job, and leave the resulting hard one for the government alone.

Two, the apex court came down harshly, questionably, on the government for its handling of the protests in the hearings a week ago. However, what is being witnessed on Singhu right now, and the developing situation along Grand Trunk Road and the possible deadlock around 26 January would leave the government accountable for it again.

In case any violence breaks out, the apex court will be quick to pin the blame on the state even while it refuses to pass an injunction on the same matter when the Centre is anticipating a law and order situation.

Three, one of the points that came up in the hearings last week was about the farmers calling off the protests if there was a stay on implementing the laws. The court immediately ruled that everything could not be achieved with one order.

Assuming this rally goes ahead, it would further offer an incentive to the protesting farmers, a minuscule minority, to intimidate the government by carrying out similar rallies in the weeks ahead. Already, the protesting farmers have been given the longest rope possible. For the future of protests and activism too, the selective inaction sets a wrong precedent.

While judicial overreach is not an anomaly in India, the apex court has generally been cautious of intervening in the legislature's business. For instance, in 2013, a two-judge bench of the apex court, ruling on the validity of the Cigarettes and Other Tobacco Products Regulation Act of 2003, had said that the courts must be extremely loath to pass an interim order.

In 2019, the apex court chose not to intervene in the amendments made to the Scheduled Castes and Scheduled Tribes Atrocities Prevention Act of 2018. It even refused to intervene in implementing the Citizenship Amendment Act of 2019, even as protests occurred across the country in tiny pockets.

However, it’s on the issue of farmer protests that the Robert Clive syndrome of the apex court has come to the fore.

Robert Clive, the first British governor of the Bengal Presidency, and known for setting the foundation of the British Empire in India along with Warren Hastings, ran the dual-system of government in Bengal, Bihar and Orissa. This system ran from 1765-1772 and was infamous for allowing the British to exercise authority without responsibility.

Making itself responsible for the revenue collection and dispensation of civil justice alone, Clive left the difficulties of administration, maintaining of law and order, criminal justice, and defence against foreign aggression to the Mughals. Eventually, the company deployed native servants for revenue collection too.

What was hence witnessed in Bengal was a dual system of government where the English had all the authority but no responsibility. In the Bengal famine of 1770, the failure of the dual government came to light. Though it was abolished in 1772 by Clive’s successor, this system caused damage to both the natives and the company.

While our Supreme Court cannot be compared to the administrative setup of Robert Clive, its action and inaction in the previous few days do warrant the question of authority being exercised without any responsibility.

Worst, it has set a wrong precedent for the future where a small group of people can force the stalling of critical laws by hijacking highways and other public spaces.

The Supreme Court was not required to intervene in the implementation of the laws. The government was authorised to legislate on the matter; the laws did not violate the Constitution or any fundamental rights. However, the staying of the laws has further complicated the line between action and inaction.

For now, the apex court must introspect where it can draw the line when it comes to unrequired interventions. Meanwhile, as the trouble brews along the Grand Trunk Road north of the Singhu border, the government must also decide where it can draw the line between the carrot and the stick.

Nehru Place

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