Opinion From UGC equity regulations to Article 370 and CBI – how the Supreme Court decided on stay orders

However, inconsistencies in the SC’s stay orders warrant critical examination. Central laws are rarely stayed due to the presumption of constitutionality. However, while UGC regulations are subordinate legislation, they have been held to prevail over laws enacted by state legislatures on several occasions. This was because they were said to be part of the University Grants Commission Act, 1956, which is a central law. Justice M R Shah in Gambhirdan K. Gadhvi vs. State of Gujarat (2022) and Prof. (Dr.) Sreejith P.S v. Dr Rajasree M S (2022) observed that though the vice-chancellor’s appointments may be consistent with state Acts, any such appointment in violation of UGC Regulations is void.

In most reservation matters, the Court strictly scrutinised affirmative action policy, though, fundamentally, it has limited powers of judicial review in this regard. The political leadership across the board has been extending reservations for electoral ends. But the judges have applied brakes to this in the name of merit and efficiency. The SC had stayed the implementation of the Mandal Commission Office Memorandum of August 13, 1990. The mass protests and damage to public and private properties were taken into account. After general elections, another order was issued on September 25,1991 which included 10 per cent reservation even for the economically poorer sections of population though the same was stuck down by the nine-judge bench in Indra Sawhney (1992).

The refusal of the court to stay the EWS reservation was criticised by many experts. Article 16 explicitly refers to “any backward class which is inadequately represented”. Reservation was conceived for the groups which had been historically discriminated against, oppressed and subjected to untouchability. What is often overlooked is the fact that the Mandal Commission order was just an executive order, while the EWS reservation was done through a constitutional amendment. The courts have extremely restricted powers in examining constitutional amendments, which can be faulted only on the ground of being violative of the basic structure. That said, the court did not indulge in the kind of strict scrutiny it had done in other reservation cases in the EWS challenge.

There were large-scale protests against the Citizenship (Amendment) Act,2019, which permitted citizenship to all the religious minorities except Jews and Muslims of Pakistan, Bangladesh and Afghanistan. Over 140 petitions were filed in the apex court. For the first time, religion became the basis of conferring citizenship, yet the SC refused to stay the law. Many observers of the judicial process were shocked as it looked like an open-and-shut case for a stay. To be fair, Article 15(1), which prohibits discrimination only on the basis of religion, is a right for citizens. The CAA in itself, without NRC, was not discriminatory against citizens and, therefore, the Court was not inclined to stay a law made by Parliament. But the court did stay the three farm laws amid farmers’ protests.

The Court refused to stay the abrogation of Article 370 through the invocation of provisions of the very same article. Critics were upset at this because, irrespective of the abrogation, it also involved the downgrading of a state to a Union Territory. Unfortunately, the Court left this question unanswered even in the final judgment.

The Babri Masjid litigation would have had an entirely different trajectory had the courts used their powers to stay more judiciously. There were genuine occasions for the invocation of this power. For instance, the status quo was maintained in 1949 when idols were installed, which, in the final judgment, was held to be illegal. The Shilanyas (foundation ceremony) proceeded despite profound religious sensitivities and curfew in over a hundred cities. Arguably, had it stayed, escalating social tensions might have been averted. Even the SC, through then CJI Justice M N Venkatachaliah, admitted that the Court failed to protect the mosque by misreading the ground situation. The Court refused to stay the kar seva despite the gathering of a large crowd with instruments of demolition. The final judgment again treated the demolition as illegal.

The SC had also refused to stay the Waqf Act. It was only after detailed arguments that, in September 2025, a bench led by the then Chief Justice of India Justice B R Gavai stayed only certain provisions like the five-year Muslim practice requirement for waqf dedication and District Magistrate’s power of adjudication. The court held “no case made out to stay the entire statute”, respecting the separation of powers.

There was no stay on Bihar’s Special Intensive Revision (SIR) of electoral rolls, though many discrepancies were pointed out in the initial hearings. Even the ongoing SIR in other states has not been stopped.

But then there are cases where the court, as with the UGC regulations, promptly used its staying powers. G N Saibaba’s discharge order of the Bombay High Court was stayed in 2022 by CJI U U Lalit on a Saturday, though the bench led by Justice D Y Chandrachud had refused such a stay. Similarly, Justice I A Ansari’s judgment on the CBI’s powers was stayed within days.

The Court’s stance on various stay petitions reflects its need to preserve legislative autonomy, public order, and constitutional equilibrium. Yet, in some cases, the argument can be made that a stay order could have enhanced people’s trust in its authority and independence.

The writer is vice-chancellor of Chanakya National Law University, Patna. Views are personal