The Supreme Court’s recent order staying the implementation of three farm laws has been criticised and is seen as violative of the doctrine of Separation of Powers.

Q. Discuss the role of judicial activism in parliamentary democracy in India.

What is the issue?

• In particular, many have questioned the suspension of action under the laws as such interim orders are extremely rare.
• The court did not accept the Attorney General’s argument that laws made by the legislature should not be ordinarily stayed, as there is a presumption of constitutionality in favour of the laws.

SC’s justification

• This court cannot be said to be completely powerless to grant stay of any executive action under a statutory enactment, the Bench observed in its order.
• This means that it was apparently making a distinction between staying a law and staying its implementation or any action under it.
• Some may argue, however, that the effect remains the same, as the order operates as a stay on the government invoking its provisions.

Previous such orders

• The court also cited an order passed by another Bench of the Supreme Court in September 2020 on the Maratha reservation issue.
• It directed that admissions to educational institutions for 2020-21 and appointments to posts under the government shall be made without reference to the reservation provided under the relevant legislation.

Farms laws case is different

• In the Maratha reservation case, the Bench said interim orders could be passed if an enactment is ex facie unconstitutional or contrary to the law laid down by the Supreme Court.
• It noted that the quota violated the 50% ceiling mentioned in the Indra Sawhney case (1992) and that the Maharashtra government had not shown any extraordinary situation to justify exceeding the limit.
• Here, the Court observed that a stay on the farm laws’ implementation may assuage the hurt feelings of farmers and encourage them to come to the negotiating table.

What are the court’s powers in regard to staying enacted law?

• Under the broad framework of judicial review, the Supreme Court and High Courts have the power to declare any law unconstitutional.
• This is on grounds if a law is contrary to any provision of the Constitution or it violates any of the fundamental rights.
• Another ground is invalidity if the law is repugnant to a central law on the same subject or has been enacted without legislative jurisdiction.

Criticisms of the move

• The main criticism is that suspending a law made by the legislature goes against the concept of separation of powers.
• Courts are expected to defer to the legislature’s wisdom at the threshold of a legal challenge to the validity of a law.
• The validity of law ought to be considered normally only at the time of final adjudication, and not at the initial stage.
• The second principle is that there is a presumption that every law enacted by any legislature is constitutional and valid.
• The onus is on those challenging it to prove that it is not. Therefore, courts are circumspect when hearing petitions seeking suspension of law pending a detailed adjudication.

Various precedents cited by the Court

• Case law suggests that in some cases, High Courts indeed stayed the operation of some laws. However, the Supreme Court took a dim view.
• In 1984, the top court set aside an interim stay granted against the operation of a municipal tax (Siliguri Municipality & Others vs Amalendu Das & Others).
• In 2013, it removed the stay on some provisions of and regulations under the Cigarettes and Other Tobacco Products Act, 2003 (Health for Millions Trust vs Union of India).
• It then held that the rules were ex facie unconstitutional and the factors, like, the balance of convenience, irreparable injury and public interest are in favour of passing an interim order.

Back2Basics: Judicial Activism

• The term “Judicial Activism” refers to the court’s decision, based on the wisdom that does not go rigidly within the text of the statute passed by the legislature.
• It goes in favour of the use of judicial power broadly to provide remedies to the wide range of social wrongs for ensuring proper justice.
• The judiciary performs an active role to uphold constitutional values and ethics under the constitutional pattern.
• For addressing civic dilemmas, the judiciary applies its intellect and creativity to fill the gap between the positive and normative aspects of legislations.
• For this reason, judicial activism has emerged.

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