Legislations cannot be stayed by SC unless prima facie unconstitutional, say experts

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New Delhi, Jan 11 (PTI) Parliamentary legislations cannot be stayed by the Supreme Court unless it is satisfied prima facie that they are unconstitutional and illegal, legal experts said on Monday.

They largely concurred with the views of Attorney General K K Venugopal who on Monday opposed the apex court observation on stay of implementation of controversial farm laws.

Venugopal said such an order can only be passed when there was prima facie materials to show that they violated fundamental rights of citizens or constitutional schemes and have been farmed without the legislative competence of Parliament.

Chief Justice S A Bobde observed during hearing on Monday that a committee needs to be appointed to resolve the deadlock between the Centre and the farmers and said, “Staying the implementation of laws and staying the law are different. We can always stay executive action under a law.' Senior advocate and constitutional law expert Rakesh Dwivedi said Parliamentary legislations cannot be stayed unless there is a very strong ground for holding at the very inception that prima facie it is unconstitutional.

'This is very tall order, without hearing the government you jump the gun. Large number of farmers are agitating cannot be a ground for the court to stay the laws. It is only in the wisdom of the lawmakers and is beyond the domain of the court,' Dwivedi told PTI.

'Courts cannot say people are agitating so we will stay the law. I agree with the Attorney General that the farm laws cannot be stayed unless it is constitutionally invalid,' he said.

Senior advocate Mohan Katarki said however that the top court is vested with the jurisdiction to stay the operation of the Act of Parliament if it is satisfied that prima facie Parliament lacks legislative competence.

Katariki said: 'The Supreme Court is vested with jurisdiction to stay the operation of the Act of Parliament pending final decision, if the Supreme Court is satisfied that prima facie Parliament lacks legislative competence in enacting the Act and the Act is inconsistent with any constitutional provision and balance of convenience are in favour of granting stay.

'While considering the balance of convenience, the Supreme Court may have regard to long and peaceful protest of farmers in biting cold'.

Dwivedi also said that by hinting at staying the farm laws, the apex court is acting more like an administrator than the court.

'The Supreme Court can stay the law. But I don't agree with the judges that they would stay and constitute a committee. It can do but it does mean that it is legal. It is illegal. It is only a way to come out of the impasse. By doing so it is acting more like an administrator than a Supreme Court. The real issue is that can the central government pass a law which bypasses state law,' he said.

Senior advocate Ajit Kumar Sinha said however that the top court observed it may stay the implementation of the farm laws and keep them in abeyance.

'It was more on implementation till the matter is resolved. That is a possibility. That they can do it because negotiations are on and public interest is also involved. People are put to problems and they are threatening,' Sinha said.

'Till the time you a reach a consensus and form a committee till then you don't implement. So the implementation is sought to be stayed. Not the law as such. To keep in abeyance for a fruitful and public purpose they can do it. They have the power under Article 142 to do complete justice,' he said.

Supreme court lawyer Ashwani Kumar Dubey said the top court can stay the execution of the farm laws as it has done in the case of Maratha reservation. PTI PKS SJK SA