On the 12th of January, 2021 the Supreme Court of India passed an extraordinary Order staying the implementation of the Farmer’s Produce Trade and Commerce (Promotion and Facilitation) Act, 2020, the Essential Commodities (Amendment) Act, 2020 and the Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Act, 2020 (hereinafter as ‘farm laws’). The Order was passed without any legal reasoning and disregarding the established constitutional procedure.
At the core of the procedural laws, is the question, whether the order of a judge can be determined, or whether it is arbitrary or random onto the judge’s whim and people’s insistence. Without the procedural safeguards and laws, the outcome of a judicial order must have seemed arbitrary. The outcomes of the cases must have seemed to happen without warning, or apparent reason. Primitive people would attribute such random outcomes to the “wisdom of the court”, who behaved in a capricious manner. There would have been no way to predict what they would do, in the absence of procedural safeguards, and the only hope would be to win the favour of their “wisdom”.
Gradually however, people must have noticed certain irregularities in the behaviour of “judges’ wisdom”. These irregularities were inevitable, and therefore emerged the idea of procedural safeguards, to act as a shield, when confronted against arbitrary order, legitimised through a pantheon of substantive legislation and laws, and sometimes as a result of people’s insistence. This led to the idea of procedural laws and safeguards to determine a certainty, and legal reasoning.
This determinism doesn’t undermine the scope of “judicial wisdom”, it is just that the “wisdom of a judge” shall not intervene, to break the stated precedent. As I argued elsewhere, that a judicial precedent, is not a precedent, if it only holds when some “judges’ wisdom” decides to let things run, and not intervene.
The idea that the state of a “judicial outcome” at one time determines the state at all other times, has been a central tenet of common law nations. It implies that we can ascertain about a case pending before a judge, in principle at least. In practice, however, it is severely limited by the complexity of the equations, and the fact that they often have a property called “discretion”.
If fundamental rights are a check on the government’s power, then the procedural laws acts as a safeguard on the random “judicial wisdom”.
In a general equilibrium system, a tiny disturbance in one place, can cause a major change in another – the butterfly effect. The problem, however, with “judicial discretion” or “judicial wisdom” in the absence of any certainty or procedural determinism is, it is not repeatable. The application of “judicial wisdom” to give ‘justice’ to one person at the first instance, may result into a host of ‘injustices’ to various other people, the next time that similar phenomenon of “judicial wisdom” flaps its wings. As Justice Brandeis, keeping this specific nodus in his mind, said: ‘it’s more important that the law is settled then it is settled right.’
In Dingell’s words, “If I let you write the substance and you let me write the procedure, I’ll screw you every time”. In other words, procedure is a safeguard against the arbitrariness of law and legal institutions. They are at the heart of how legal institutions make decisions: who gets into court, where does lie the burden of proof, et al.
Today, among various others, there is one disturbing weapon that has emerged out to hammer down the procedural limits in the name of “substantive justice” – the Public Interest Litigation.
Since the advent of PIL, our fascination with “end-result” over reasoning of the judgment has brought us to a point where there is effectively no reasoning of how a judge got to a certain “conclusion”. The structural problems of PILs have far-reaching effects, and is primarily open to two objections: First, it encourages the overbroad and random remedies in the name of “substantive justice”, which itself is amorphous in nature. Secondly, it has nearly evaded the procedural limits placed upon the court in the form of “jurisdiction”, and therefore allows the judge to become a self proclaimed patriarch of the nation.
Besides these two objections, there lies one more criticism: that how the lack of procedural safeguards give rise to the equivocal court, which enables judges to not abide by the constitution, but by their “supreme wisdom” which, if not all the time, then for most of the time, is the function of executive’s insistence.
The recent hearing and stay order by the highest court in regard to “Farm Laws” is a glaring example as a proof to my premise. In this matter, the behaviour of the court was as if it can ‘stay’ or ‘suspend’ any legislation passed by the Parliament, without pulling out any ‘unconstitutionality’, when the procedure demands, for the court to stay a law, it has to find out the law as a prima facie unconstitutional with proper reasoning. Irrespective of your position on the merit of farm laws, there should be no doubt that by ignoring the doctrine of presumption of constitutionality, the court has strengthened its whim. For a reminder, the same court did nothing when the host of legislations of public importance were challenged before it in the recent times. As I stated before, the problem with giving “substantive justice” without any “procedural safeguards” is that you never know what will happen when the judges flap their “wing of justice” next time.
Vaidushya Parth is reading law at the NMIMS School of Law. He writes on Constitutional Law, Procedure, and Economics.