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  • 17 January, 2021

  • 15 Min Read

Separation of Powers between Legislature and Judiciary

Separation of Powers between Legislature and Judiciary

  • The Supreme Court’s recent order staying the implementation of three farm laws, while appointing a four-member committee (one member, Bhupinder Singh Mann, has recused himself), to thrash out issues between agitating farmers and the Union government, has been criticised in some quarters.
  • 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.

How did the SC justify its order on farm laws?

  • “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.
  • The court also cited an order passed by another Bench of the Supreme Court last September 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. The matter has been referred to a Constitution Bench.
  • However, in the Maratha reservation case, the Bench said interim orders could be passed if an enactment is ex facie unconstitutional or contrary to 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.
  • Moreover, the Supreme 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 under the Constitution, the Supreme Court and High Courts have the power to declare any law unconstitutional, either because it is ultra vires (or, contrary to any provision of the Constitution) or it violates any of the fundamental rights, or invalid because it is repugnant to a central law on the same subject or has been enacted without legislative jurisdiction.
  • However, interim orders staying or suspending laws enacted by the legislature are frowned upon by constitutional courts and legal scholars.
  • The general argument is that unless there are compelling reasons such as flagrant lack of constitutional validity, or absence of legislative competence (that is, the legislative body concerned lacks the jurisdiction to enact the law in question), a law ought not to be stayed.

Why is it considered unusual for a court to suspend a law or its operation?

  • The main principle 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 a 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 a law pending a detailed adjudication.

What precedents are cited against judicial interference at an interim stage?

  • 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 (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 (Health for Millions Trust vs Union of India).
  • In the latter case, the court observed that “the operation of statutory provisions cannot be stultified by granting an interim order except when the Court is fully convinced that the particular enactment or the rules are ex facie unconstitutional and the factors, like, balance of convenience, irreparable injury and public interest are in favour of passing an interim order”.
  • While upholding the validity of Section 45S of the Reserve Bank of India Act, which imposed restrictions on unincorporated bodies accepting public deposits, the Supreme Court criticised interim orders by some High Courts that stayed the provision.
  • “When considering an application for staying the operation of a piece of legislation, and that too pertaining to economic reform or 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,” the court said in Bhavesh D. Parish & Others vs Union of India, 2000.

Source: TH

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