Staying Farm Laws without Finding Unconstitutionality Terrible Precedent: Legal Experts

Supreme Court of India.

Former Supreme Court judge Markendey Katju termed it as the court “trespassing into the domain of another organ of the state”

Waquar Hasan | Clarion India

NEW DELHI – Legal experts have said that it is a terrible precedent that the Supreme Court has put stay on laws without finding unconstitutionality prima facie in them.

They were responding to the apex court order of Tuesday staying the farm laws till further order. The farmers are holding sit-in against the farm lawshas at Delhi borders for the last 48 days. The court has also formed a committee to hold talks with the agitating farmers.

Former Supreme Court judge Markendey Katju termed it as the court “trespassing into the domain of another organ of the state”.

“Courts must realise they cannot solve all problems in the country, and I respectfully submit the Supreme Court should only decide the constitutionality of the three laws, and refrain from passing any order trespassing into the domain of another organ of the state,” tweeted Katju on Supreme Court’s observations with regarding to farmers’ protests.

Prominent Supreme Court lawyer Kruna Nandy said that the staying of the laws without finding unconstitutionality prima facie is “terrible precedent” and “worrying”.

“The terrible precedent in ‘suspending’ laws without a prima facie finding of unconstitutionality is especially worrying. Opens the door for SC to ‘suspend’ any law for extra constitutional reasons,” she tweeted.

Author and legal expert Gautam Bhatia echoed Nandy’s opinion, saying: “The Court acts as if it can ‘suspend’ laws of its own sweet will. It can’t”.

“For the Court to stay a law, it has to find that it is prima facie unconstitutional, and issue a reasoned order saying so. This is *not* optional. For obvious reasons, it has not done so here,” he said.

Bhatia also pointed out that the court earlier refused to stay many other laws like Adhaar, Jammu and Kashmir Reorganization Act, Electoral Bonds and others

“It is cynical for another reason. A host of laws have been challenged before the Supreme Court in recent times, where arguments were *actually* made for prima facie unconstitutionality. The Court refused to stay any of these laws, and refused to even engage with the arguments. In all those cases, the Court’s blanket refusal to issue a stay was directly harmful to a fair adjudication of the case, as it allowed the government to permanently alter the facts on the ground. Examples – Aadhaar, J&K Reorganisation Act + many others,” he tweeted.

Bhatia alleged that the court stayed or refused to stay any law to benefit the Central government.

“Court won’t stay laws where status quo is benefiting govt. Court will kick those cases into cold storage so that status quo continues indefinitely and continues to benefit govt. But suddenly, here, the Court pops in, stays laws, forms committee without the courtesy of an explanation. This is not a judicial institution. It is, however, as I said in my first tweet, an institution engaging in a particularly cynical brand of power politics,” he further said.


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