We cannot, today, say what the impact of Supreme Court’s stay order will be on the farmer protests, but it is not strictly within the ambit of the powers of the court to be passing orders staying legislations in aid of perception management. Hence, though the result may superficially seem correct, the process of reasoning, or lack thereof, behind the result, renders it anything but.
The Supreme Court has stayed the implementation of what are popularly known as the farm laws and has also constituted a committee to facilitate dialogue with the protesters.
This comes on the back of high voltage hearings in the Supreme Court on various petitions challenging the constitutional validity of the farm legislations and also some petitions seeking removal of the protestors.
The court had already indicated in the hearing on Monday, that it is likely to stay the implementation of the legislations. In response many people, including a former judge of the Supreme Court, had stated that the Supreme Court cannot stay a legislation. Some even went on to say it would amount to judicial overreach, though it is not clear whether those who say so are allowing for the concept of judicial review which is embedded in our constitutional system.
Indeed, the Attorney General in the course of his arguments before the court contended that the court can stay legislation only if any of these three criteria were fulfilled:- (1) The law had been passed without legislative competence. (2) It violates a fundamental right. (3) It violates some other provision of the constitution. This statement by the Attorney General before the court provides the clear basis on which the laws deserve to be stayed, though it was intended by him as an argument as to why they shouldn’t.
The Constitution, in the Seventh Schedule, divides fields of legislation into the (i) Union List, on which the Parliament can pass laws and the Union Government can pass order, (ii) State List on which the States have similar powers and (iii) Concurrent list.
Agriculture is clearly covered under entry 14 of the State List. Markets are covered under entry 28 of the same list. The Farm Acts clearly are violative of both, insofar, as they go into great detail including i) model form of farming contracts, ii) farm produce marketing, iii) electronic marketing of farm produce etc.
They are also violative of entry 65 of the State List because jurisdiction of courts in respect of all subject in the state list is covered in Entry 65. These legislations limit the jurisdiction of Civil Courts without the competence to do so. The farm laws, passed by the Parliament are a clear encroachment on the legislative power of the States.
There are some special circumstances where the Parliament can legislate on matters in the State List (Eg. Special Resolution by Rajya Sabha, Request by the States themselves, etc.) which have not been met in this case.
To this extent, the laws have been passed without legislative competence and though these grounds are raised in many petitions pending before the Court, they do not seem to have been canvassed extensively in the course of arguments in the Court so far.
While the Supreme Court has stayed the implementation of the legislations, the order does not cite lack of legislative competence or any other legal reason as the driving principle for such stay. The reason given is at best a tangential one. The court says in its order that the protestors would perceive the order as an achievement of their purpose and dissolve their protest.
We cannot, today, say what the impact of the stay order will be on the protests, but it is not strictly within the ambit of the powers of the court to be passing orders staying legislations in aid of perception management. The court is an institution built on precedents rather than on convenience. Hence, though the result may superficially seem correct, the process of reasoning, or lack thereof, behind the result, renders it anything but.
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