'Acting Like A Panchayat Than A Constitutional Court' : Dr Anuj Bhuwania On SC Order On Farmers Protests, Abuse Of PILs

The Supreme Court's order to constitute a committee for negotiation of farmers protests and to stay the implementation of the controversial farm laws pending talks is 'devoid of any legality', said legal scholar Dr.Anuj Bhuwania.

In an interview with Hamza Lakadwala for LiveLaw, Dr.Bhuwania spoke at length about the decline of judicial review and the arbitrariness in the PIL jurisdiction.

"Judicial review is the classic role of the court. The Court used to perform that function quite seriously even when it was a conservative court during the 50s and 60s. That has changed. Judicial review has declined in the recent period and we see the rise of judicial populism", said Dr.Bhuwania, who has authored a book closely studying the PIL jurisdiction, titled "Courting the People: Public Interest Litigation in Post-Emergency India".

As regards judicial review, we have a dysfunctional judicial system now. The Court is not interfering even when there are strong prima facie grounds of unconstitutionality against laws such as the so-called 'love jihad' laws. But the Court is keen to pass orders of questionable legality such as the one passed in the farmers protest cases.

"The Court is acting like a Panchayat, in a sense, than a constitutional court", he said. He added that the problems afflicting judiciary are as much of omissions as of commissions.

"When it is allowing manifestly unconstitutional laws to continue to be valid, and allow their implementation, it is not performing its judicial function. Judicial review is the primary function of a constitutional court, which it is not performing. Instead it is strangely performing a hybrid role which some scholars have called "the executive court" and some scholars called the "legislative court" but certainly not the judicial court".

During the 40-minute session, he also commented that the problem with the PILs is that the very jurisdiction is 'designed for misuse'. 

He suggested the replacement of the relaxation of locus standi with 'representative standing' so that a petitioner, though  not directly affected by the cause, has some correlation with it. This will avoid the situation where any random person goes to the court so as to frustrate genuine causes.

Dr. Bhuwania also spoke about the arbitrariness involved in checking the credentials of the petitioner. If a well know senior advocate is appearing, the courts tend to accept the petitioner's standing,

"In PILs, the petitioner often becomes irrelevant. It becomes a court-led process", he said.

In most PILs, there are no judgments, and the court passes orders without feeling the need to justify them with reasons.