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Experts surprised by stay before validity test

ByAbraham Thomas
Jan 13, 2021 05:39 AM IST

Former Supreme Court (SC) judges and legal scholars have expressed surprise at the apex court’s order staying the implementation of the three farm laws.

Former Supreme Court (SC) judges and legal scholars have expressed surprise at the apex court’s order staying the implementation of the three farm laws and pointed to the absence of judicial precedents where a law was stayed without the legislation, prima facie, declared as having flouted constitutional norm or violated fundamental rights. This, they also warned, can become a precedent for other courts.

On Tuesday, a three-judge SC bench, headed by Chief Justice of India (CJI) SA Bobde, had said: “We are of the view that a stay of implementation of all the three farm laws for the present may assuage the hurt feelings of the farmers and encourage them to come to the negotiating table with confidence and good faith.”(HT PHOTO)
On Tuesday, a three-judge SC bench, headed by Chief Justice of India (CJI) SA Bobde, had said: “We are of the view that a stay of implementation of all the three farm laws for the present may assuage the hurt feelings of the farmers and encourage them to come to the negotiating table with confidence and good faith.”(HT PHOTO)

On Tuesday, a three-judge SC bench, headed by Chief Justice of India (CJI) SA Bobde, had said: “We are of the view that a stay of implementation of all the three farm laws for the present may assuage the hurt feelings of the farmers and encourage them to come to the negotiating table with confidence and good faith.”

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Former Chief Justice of India (CJI) KG Balakrishnan said, “Courts do not stay any legislation before deciding upon its constitutionality. Here, instead of first going into the constitutionality of the laws in question, the Court has stayed the three laws and delegated a committee with the task of making recommendations on it after hearing farmers. To my memory, this has never happened.”

The former CJI recalled instances where consequences of a law are stayed, which is distinct from staying the law itself. “In the past, the Court has stayed the consequences of a legislation where it if of the view that allowing the same will lead to irreparable damage. But to stay a law, its constitutionality has to be tested, arguments heard and then declared to be null or void. Here the Court is yet to examine the constitutionality of the laws under challenge.”

Former Supreme Court judge Justice Deepak Gupta agreed, and said, “The Court is right in saying that it is not powerless. It has power to stay a law upfront where it finds that a particular law could not be passed by a state or Centre on grounds of legislative competence. Also, a law can be ex-facie legal or unconstitutional. But in these circumstances, the Court has to give reasons for granting stay on a law. I did not find any reasons after reading the order passed by Court on Tuesday.”

The only reason cited by the three-judge bench for staying the laws was to encourage farmers to come to the talking table. Asked about whether this was a suitable ground to stay a law, Justice Gupta said, “I do not think this can be the basis for staying a law. We do not make policies. Court is entrusted to decide the validity of a law based on Constitution and judicial precedents. Courts should not become a platform for political warfare. There are instances when Courts have stepped into legislative turf in public interest as in the Vishaka case. This is because we have powers to do complete justice under Article 142. This order does not make any reference to Article 142 nor does it state that the same should not be treated as precedent in future cases.”

Legal scholar and advocate Gautam Bhatia said the task of the Supreme Court is to resolve legal disputes before it. “It is not to act as a super-mediator or a family elder. In particular, the SC — going by its own precedent — is only supposed to ‘stay’ a law if it finds that prima facie that law is unconstitutional. In the past, the SC has refused to stay laws where not only serious challenges were mounted to their constitutionality, but also where allowing status quo to continue directly benefited the government, which was able to change facts on the ground. Examples include Aadhaar, J&K Reorganisation, and electoral bonds, the latter two of which still remain in cold storage.” Bhatia added that while comparing the Court’s behaviour in those cases with its behaviour now, the “inconsistency is glaring”. “It leaves the Court open to credible accusations that it is acting more like a participant in political conflict rather than an adjudicator.”

Alok Prasanna Kumar, senior resident fellow at Vidhi Centre for Legal Policy said, “The Court has not applied any reason to stay the laws and the reason cited has no bearing with any established legal principles. In the process, what it has created is more confusion and chaos. With today’s order, the legal effect of the three laws has been thrown into doubt since the laws haven’t been rubbed off. In such a situation, what happens to transactions which took place under the new laws and the decisions taken by state governments pursuant to adopting them? The order is silent on these aspects.”

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