Context: The Supreme Court’s recent order staying the implementation of three farm laws to thrash out issues between agitating farmers and the Union government, has been criticised by some.
- In a democracy, sovereign power of the state rests on three pillars — legislature, executive and judiciary.
- The judiciary is the trustee of democracy and fundamental rights of the people. It has the power of judicial review over the legislature and the executive.
- Judicial Review, a concept of Rule of Law, is the check and balance mechanism to maintain the separation of powers. Separation of power has rooted the scope of Judicial Review.
- The Constitution of India provides for judicial review under Article 13, Articles 32 (Supreme Court) and 226 (High Court).
- Article13(2) – The State shall not make any law which takes away or abridges the rights conferred by this part and any law made in contravention of this clause shall, to the extent of the contravention, be void.
- Article 32 of the Indian Constitution enshrines this provision whereby individuals may seek redressal for the violation of their fundamental rights.
- The Article 226 empowers High Courts to issue directions, orders or writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari. Such directions, orders or writs may be issued for the enforcement of fundamental rights or for any other purpose.
- Article 13 declares that all laws that are inconsistent with or in derogation of the Fundamental Rights shall be null and void.
- Article 135 empowers the Supreme Court to exercise the jurisdiction and powers of the Federal Court under any pre-constitution law.
- Article 372 deals with the continuance in force of the pre-constitution laws.
Scope of judicial review: Now the judicial review power of Courts in India comprises of three aspects:
- Judicial review of legislative action,
- Judicial review of administrative action,
- Judicial review of judicial decisions
Conditions for declaring any law as unconstitutional: Under the broad framework of judicial review under the Constitution, the Supreme Court and High Courts have the power to declare any law unconstitutional if
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.
Importance of Judicial review
Judicial review is needed for the following reasons:
(a) To uphold the principle of the supremacy of the Constitution.
(b) To maintain federal equilibrium (balance between the Centre and the states).
(c) To protect the Fundamental Rights of the citizens.
Rationale behind SC judgment:
- SC apparently made a distinction between staying a law and staying its implementation or any action under it.
- Maratha reservation issue: In this case the SC had 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.
- It noted that the quota violated the 50% ceiling mentioned in the Indra Sawhney case (1992),
- Encouraging negotiations: 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.
Objection over SC judgment: The general argument is that unless there are compelling reasons such as flagrant lack of constitutional validity, or absence of legislative competence a law ought not to be stayed.
- The main principle is that suspending a law made by the legislature goes against the concept of separation of powers.
- 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.
Bhavesh D. Parish & Others vs Union of India, 2000: The SC said that when considering an application for staying the operation of a piece of legislation, related to economic reform, the courts must show judicial restraint in staying the applicability of the same, unless the provision is manifestly unjust or glaringly unconstitutional,