Date: 25th January, 2021
by Divya Menon, UILS, Panjab University
After hearing petitions over the constitutional validity of the laws and some demanding the protestors be removed from the borders of Delhi, a 3-judge Bench led by CJI passed an 11-page order which did not address any of these bigger questions.
The Court on 12th January, 2021 stayed the implementation of the three farm laws. The stay means that for the time being, Centre cannot proceed with any executive action to enforce the laws. The stay as the Court said, “may assuage the hurt feelings of the farmers”.
The Court formed a 4-member committee of experts “to listen to the grievances of farmers and views of the Government and make recommendations”.
In the order the Court hoped that the stay would be perceived as “extraordinary achievement at least for the present” and added that the MSP system in existence before the enactment of the laws should be maintained till further orders.
The committee that consisted of Bhupinder Singh Mann, National President, Bhartiya Kisan Union (who has recused himself), now consists of Dr. Parmod Kumar Joshi, agricultural economist, Director for south Asia International Food Policy Research Institute; Ashok Gulati, agricultural economist and former Chairman of the Commission for Agricultural Costs and Prices; and Anil Ghanwat, President, Shetkari Sanghatana.
As per the order, the committee has to start working in 10 days and submit a report to the Court in 2 months. The Government is to take care of the expenses.
The farmer unions the very next day rejected the SC panel, pointing out that the members of the committee had actively advocated for the laws.
ANALYSIS OF THE ORDER THROUGH LEGAL LENS
The order put an interim stay on the enforcement of the Acts and appointed a 4-member committee to resolve issues between farmers and the Union government. This order has been criticised and questioned in the legal domain, particularly the interim order.
Why is it unusual for a court to suspend a law?
The main reason is that when a court suspends a law made by the legislature, it goes against the principle of separation of powers.
The second reason is that unless the contrary is proved, the presumption is that the law is valid and constitutional. The onus is on those who challenge its validity, to prove that it is not. This was also the argument put forth by the AG Mr. K.K Venugopal but the Court did not accept the same.
Court’s powers in regard to putting a stay on enacted laws
Under the constitution, the Supreme Court and High Courts have the power of judicial review, owing to which they can declare any law unconstitutional, either because it is ultra vires or because it violates any of the fundamental rights or is contrary to a central law on the same subject or has been brought in without legislative jurisdiction. However, interim orders staying or suspending laws are extremely rare and such action must not be taken unless there are reasons that show utter lack of constitutional validity or absence of legislative competence.
Precedents against judicial interference
The Supreme Court in Bhavesh D. Parish & others vs Union of India,2000 said, “when considering an application for staying the operation of a piece of legislation, and that too pertaining to economic reform or a change, then the courts must bear in mind that unless the provision is manifestly unjust or glaringly unconstitutional, the courts must show judicial restraint in staying the applicability of the same.”
In the gist of elements, the order neither pleases the farmers nor the legal scholars, even though the CJI supported it as the best way forward at present.