The Parliament of India recently enacted and carried out changes in the agricultural laws of the country. This led to widespread protests by farmers, demanding a repeal of these laws, among others. To resolve the deadlock, the Union ministers and farmer unions have participated in multiple meetings but to no avail. While the policy debate is a complex one, it has reached the Supreme Court of India as a challenge to the constitutional validity of the laws, being an affront to the federal structure of the Constitution of India. It has been contended by many farmer unions that the Parliament has no authority to frame these laws, as the legislative competence lies with the states. Separately, a few public interest litigations have also been filed by citizens, seeking an end to the protests as they disturb the ease of trade and commerce in and around the capital. The Supreme Court of India consolidated the petitions and passed an interim order dated, January 12, 2021 (“Order”). It has ordered an interim stay on the enforcement of the laws and constituted a committee to negotiate a truce between the citizens and the State. Instead of deciding the vital constitutional questions, it has taken upon itself to broker a congenial atmosphere, trust and confidence between the parties. This Order and the sequence of events have manifested themselves as a patent aberration of the separation of powers, especially when the executive is simultaneously negotiating with the farmer unions. The debate around the scope of the plenary jurisdiction of the Supreme Court has been active since some time. The Order is widely perceived as another example of judicial activism. This essay attempts to examine if the Order can be characterised as a weak dialogic remedy, handed down in place of the judicial review to be undertaken by the Supreme Court. I instantiate a comparison of the dialogic remedies handed down in Canada, South Africa and Argentina and lays out the differences as seen in the Order.
Constitutional dialogue – a short overview
The Order by establishing a negotiation committee tasked to submit its recommendations to the Supreme Court resembles a dialogic remedy. Dialogic constitutionalism can be distilled as a phenomenon strewn with remedial discretion, focussing on incremental justice, without necessarily theorising or adjudicating upon rights. It is also understood as a form of judicial austerity, attempting to balance constitutional power between the judicial and political branches. Basically, if dialogic intervention allows a politically sound solution to a legal issue then note that it impacts separation of powers in a way distinct and potentially opposite to that of judicial activism. It results in minimal judicial intervention, even at the cost of non-adjudication, to arrive at palatable solutions. So, rather than the judiciary intruding upon the executive’s turf, it invites the other branches in. While this is one line of critique understand judicial dialogue, its advantage lies in providing a public forum, in the form of a court, for the government to justify and explain its policies.
Dialogic remedies are perceived to be largely envisaged for enforcement of socio-economic rights or positive rights and action by the legislature or executive. The Order, on the other hand, is framed in view of a constitutional challenge, an anomaly to view it thus. There are various instances when a dialogue is carried out in Indian courts. However, it occupies the traditional field of engagement to understand the policy prescriptions of the State. As lamented here, the lack of a fixed standard of review for adjudication of socio-economic rights makes the accompanying dialogic exercise less potent than it can be. Extending this further, the argument here is that the contours of dialogic interference itself must also be clarified over a period of time. As will be seen below, the Order may be read as a dialogue but with the absence of all concomitant benefits and safeguards of a constitutional dialogue. It is a continuing remedy where the dialogic action has been delegated to the committee, basis which the Supreme Court will take action. Further, it is an open question whether the pure questions of law raised before the Supreme Court should or could even be subject to a dialogic remedy.
Comparison of Conditions; Separation of Powers and Dialogic Remedies
In Canada, the scope of judicial review is limited to striking down an invalid legislation per Section 52 of the Charter of Rights and Freedoms, 1982. However, the courts resort to broad remedial discretion to seek positive action, as a part of judicial review.
For instance, in the case of Schachter v. Canada, the Supreme Court provided the remedies of ‘reading in’ and temporary suspension of invalidity of the law. The dispute related to the inapplicability of employment benefits to natural parents, in contrast to adoptive parents under the Unemployment Insurance Act, 1971. Since the inequality was borne out of under inclusion of a group, the Supreme Court adjudged the legislation as unconstitutional. However, at the time of providing the remedy, instead of striking it down, it suspended its invalidity till the time the Parliament could remove the defect of inequality due to under inclusion. The Court read in the statute to make it workable. It interpreted the scope of Section 52 to enable the courts to declare the law, and not the words expressing that law, to be of no force or effect to the extent of any inconsistency with the Constitution. Thus, it would be permissible to severe as well as read in to make the statute workable. It laid down the purpose test, rational connection test, and the minimal impairment test to provide the remedy of reading in. In contrast to the classic action of severance, it held that where the purpose of the legislation is itself unconstitutional, the legislation should almost always be struck down in its entirety. Similarly, if the means used to achieve the objective have no rational connection to it, then again it must be struck down. Outlining the scope of reading in, it held that if the question of how the statute ought to be extended in order to comply with the Constitution cannot be answered with a sufficient degree of precision on the basis of constitutional analysis, the legislature and not the courts must fill in the gaps.
Even to dispense the remedy of temporary suspension of invalidity of law, the court turned to its pragmatic use in particular cases and reasoned that the question whether to delay the application of a declaration of nullity should turn not on considerations of the role of the courts and the legislature but rather on considerations relating to the effect of an immediate declaration on the public.
While new democracies such as India and South Africa are often clubbed together, in terms of the modern remedies that the courts fashion, the theoretical consistency in South Africa is far clearer. In the case of Port Elizabeth Municipality v.Various Occupiers, what began as a civil litigation, eventually turned into a constitutional conundrum. The municipality prayed to evict the ‘illegal occupants’ of a municipality land. The occupiers demanded alternate housing, to be provided in lieu of their existing place. The municipality sought to get a ruling that when it seeks eviction of unlawful occupiers it is not constitutionally bound to provide alternative accommodation or land. The Constitutional Court described it as turning on establishing an appropriate constitutional relationship between section 25 [of the South African Constitution], dealing with property rights, and section 26, concerned with housing rights. Even while determining the balance, it alluded to the wide constitutionally prescribed discretion in Section 26 (3) of the South African Constitution which requires the courts to make an order after considering all the relevant circumstances. Further, a law has been framed to effectuate these rights i.e. the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, 1998 (“PIE”). Section 6 (3) of the PIE guides the discretion of the court to examine the relevant circumstances in the form of peremptory norms. The Court concluded that it has a very wide mandate and must give due consideration to all circumstances that might be relevant. The Court passed an engagement order, suggesting mediation to the parties, sourced from Section 7 of the PIE. While this case is one example of a dialogic remedy, the dialogue was confined and based on the statutory and constitutional provisions.
Constitutional adjudication resulting in modern remedies arguably impacts the separation of powers. However, in the comparative instances dealt above, the judicial actions are driven by constitutional sanction and interpretation, outlined using standards or determined on the basis of individuals facts and circumstances. It is understood that judicial activism has been tempered by dialogic review as a more legitimate exercise of judicial functions, compatible with the doctrine of separation of powers.
On the other hand, another exemplar case for dialogic remedies occurred in Argentine to effectuate the right to a cleaner environment in the Matanza-Riachuelo river basin. Several residents of the river basin petitioned the Supreme Court of Argentine against the National Government, the Province of Buenos Aires, the Autonomous City of Buenos Aires and 44 companies regarding health damages suffered from the environmental contamination of the Matanza-Riachuelo river basin. While the Supreme Court sought plans and responses from the State, it also enhanced participation of the process by including NGOs and the Ombudsman’s Office as parties and even holding a public audience. Further, a ‘Monitoring Committee’ was also established by the court to continuously report back on the progress of steps taken by the relevant parties to clean and preserve the river basin [it must be noted that no order was passed against the 44 companies and the World Bank was also instrumental in financing parts of the project for sustainable development through a loan granted to Argentine]. Years later, while the implementation of the orders and the review of progress is in limbo, the case has become a template to understand dialogic review and remedies for second generation rights.
It must be noted that the judicial route of this case is similar to Indian environmental litigation and dialogic reviews. This leads to a perception of multiple types of dialogues; one sourced from some legislative material while the other kind as an instance of judicialization of politics which is not simply performative but aimed at normative outcomes and remedies. As the Order does not lay down the outcome to reach, namely resolve the constitutional conundrum of federalism, it passes the muster of neither. The constitutional challenge to farm laws in India required a judicial review and constitutional adjudication in the classic sense, in terms of the legislative competence as well as the influence on the freedom of association, speech and expression. No positive action was prayed for or required. The Order even begs the question of its utility as it is unclear in what way the Supreme Court will make use of the recommendations of the committee. It is ostensibly dialogic, yet not one in the true sense. The parties were unequally placed, did not seek the same and parallel remedy from the court and even vehemently opposed it. Thus, the characterisation of the Order even as a dialogic remedy may be difficult to justify its construction.
A caveat is due here. Since the Order is an interim one, it is hard to predict what course the litigation will take. However, it is clear that the path will be dialogue driven to accommodate interests, possibly at the cost of justice and the rule of law.