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

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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 favor of the Constitutionality of any legislation, it is, effectively, blurring the boundaries of Parliament’s power to legislate, and the court’s powers of judicial review. With its interim order staying the implementation of the three new farm laws, the Supreme Court has entered into uncharted territory.

However, that law stayed after the Bombay High Court had examined the constitutionality of the statute and the ruling was appealed before the Supreme Court. “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.

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.

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’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.

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.

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