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Monday, January 18, 2021

Supreme Court enters uncharted territory; in Aadhaar, poll bonds, took another stand

This is perhaps the first time the apex court has stayed a law passed by Parliament without sparing even a single hearing to examine its constitutionality — the court’s primary function.

Written by Apurva Vishwanath | New Delhi | Updated: January 13, 2021 7:40:00 am
Supreme Court enters uncharted territory; in Aadhaar, poll bonds, took another standSupreme Court of India

With its interim order staying the implementation of the three new farm laws, the Supreme Court has entered into uncharted territory. This is perhaps the first time the apex court has stayed a law passed by Parliament without sparing even a single hearing to examine its constitutionality — the court’s primary function.

Although the court’s order acknowledges that there is a presumption in favour of Constitutionality of any legislation, it is, effectively, blurring the boundaries of Parliament’s power to legislate, and the court’s powers of judicial review.

“This Court cannot be said to be completely powerless to grant a stay of any executive action under a statutory enactment,” the court noted in its order. It also cited the instance of the court staying the operation of the Maharashtra law granting reservation to Marathas in jobs and educational institutions through an interim order in September 2020. However, that law was stayed after the Bombay High Court had examined the constitutionality of the statute and the ruling was appealed before the Supreme Court.

Even that order, by a two-judge bench of Justices Ravindra Bhat and L Nageswara Rao, quotes precedents on exercising caution while staying legislation and states that an interim stay can be granted only on an explicit finding of unconstitutionality.

The court has justified its stay by arguing that this will create “confidence” and “trust” to help farmers come to the talks table. However, with farmer groups openly refusing to engage with the Supreme Court panel, the order risks undermining not only Parliament but the apex court as well.

In the batch of petitions in the case, a majority seek directions to implement the laws and another category seeks the court’s intervention to quell the protests. Even where the laws have been challenged on grounds they are unconstitutional, notably in the plea by the Punjab government, the court has declined to hear that and, instead, chosen to hear pleas related to the protests.

The court’s stand on the farm laws is in stark contrast to its position in previous instances when it underlined the presumption of constitutionality even in executive orders without the backing of legislation. This despite the fact that petitioners argued that refusal to stay would result in irrevocable loss of fundamental rights.

This argument was made in 2015 in the challenge to Aadhaar when only an order of the Planning Commission backed the scheme. The court had referred the challenge to a larger bench but refused to stay the implementation of the scheme.

In the challenge to the electoral bonds scheme, in which the petitioners in 2017 argued that it would irreversibly change the landscape of political funding, the court refused to stay the law holding that it has to first test the laws against the cornerstone of the Constitution.

Setting up of the committee is also fraught with questions over the court’s delegation of its primary role of reviewing laws to a “panel of experts”.

While the court has directed the committee to submit its recommendations after holding consultations with the government as well as the representatives of the farmers’ bodies, and other stakeholders, its mandate is unclear. The court has left the next steps open-ended by giving the panel eight weeks to make its recommendations. How long the stay will last is another question altogether.

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