Can Court stay the laws made by the legislature?
A three-judge bench headed by Chief Justice of India SA Bobde and Justices AS Bopanna and V Ramasubramanian has stayed the implementation of three farm laws — Farmers (Empowerment & Protection) Agreement of Price Assurance & Farm Services Act 2020, Farmers Produce Trade & Commerce (Promotion & Facilitation) Act & Amendment to Essential Commodities Act.
The Court has also constituted a four-member committee of Agri-experts comprising Pramod Kumar Joshi, former director of International Food Policy Research Institute, Bhupinder Singh Mann of All India Kisan Coordination Committee, agricultural economist Ashok Gulati and Anil Ghanwat, chief of Shetkari Sanghatana Maharashtra to “hear all the parties and stakeholders” and present its report to the court.
After the court’s decision, discussions started turning out whether this violates the separation of powers enshrined in the Constitution and to stay the implementation of law without even a single hearing on its merits and demerits sets a dangerous precedent for parliamentary democracy?
The proposal to stay the law was opposed by the Attorney General for India KK Venugopal, who pointed out that Supreme Court precedents are saying that Courts cannot stay legislation. He also referred to the case of State of UP v. Hirendra Pal Singh, (2011) 5 SCC 305, where it was held that in cases where the validity of statutory provision is under challenge, the Courts should exercise self-restraint in passing interim orders. In cases like Indian Drugs & Pharmaceuticals Ltd. vs. The Workman of Indian Drugs & Pharmaceuticals Ltd. (2007) 1 SCC 408 and S.C. Chandra and Ors. vs. State of Jharkhand and Ors., where the apex court has made the point; When a law is made by Parliament, it is only Parliament which can repeal or suspend its operation by making another law.
In accordance with the precedents, Court can declare a law ultra vires if it finds: (1) law is passed without legislative competence (2) law violates fundamental rights (3) law violates other provisions of the constitution. Although, Court has no power to provisionally stay its enforcement even without recording a finding that it is prima facie unconstitutional.
Another concept raised by several legal experts and luminaries is, Judicial Activism which means the power of the Judiciary to review any act or order of Legislative and Executive wings and to pronounce upon the constitutional validity when challenged by the affected person. The power of Judicial Review comes from the Constitution of India itself and it covers under Articles 13, 32, 136, 142 and 147 of the Constitution. The judicial review serves as a necessary check on the possible excesses by the legislature and the executive.
Many look at this decision of the Apex court as judicial over-reach and deprecating in terms of democracy. It is for the executive to administer the law and the function of the judiciary is to ensure that the Government carries out its duty in accordance with the provision of the Constitution.