Supreme Court – Constitutional Separation of Powers Compromised

Suresh Sahni

Suresh Sahni

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Supreme Court must recall the order of stay of 12.01.2021 and the pending petitions be heard with the expeditious mode

The farmers’ agitation of last 48 days led the Supreme Court to pass the interim order of stay on the farmers’ three laws. The order of 12th January stirred the basic fabric of separation of power ingrained by India’s Constitution’s founding fathers.

The constituent assembly was quite conscious of the discharge of Constitutional functionaries, Legislature, Executive, and the Judiciary. The long line of uninterrupted judicial pronouncements has duly upheld the governing command by adhering to the age-old concept of separation of powers amongst the regime’s wings.

India constitutionThe Supreme Court has supremely failed to adhere to the Constitutional Command. Without dwelling with the Constitutional nitty-gritty of the law under challenge, committed historical error by passing the blanket order of stay on the enacted law. It does not behove well to the basic tenets of Democracy. The interim order has played down the eminency of Parliament.

The protest by the farmers may indeed have a sigh of relief. But the order is against the doctrine of separation of power in terms of Constitution of India. Every legislation irrespective of its strength in the Parliament would be subservient to the Constitutional command.

The law must pass through the sieve of the Constitution. The power to see that the legislation does not cross the contours/confines of Constitution vests with the Constitutional Authorities under the Providence of Article 32 & 226 of Constitution of India.

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Members of panel announced by Supreme Court

The committee’s formation is another monumental error, for there is dissent amongst the protesters qua the credibility of the committee members and one of the committee members, Bhupinder Singh Mann withdrew his nomination and asserted “I will always stand with my farmers and Punjab“.

It has percolated a message that part of the committee is hostile towards the farmers, whereas, it is not so. The Supreme Courts’ stay order has cluttered the root cause.

The Supreme Court was not justified to undertake the adventurous line of deciding the Constitutional validity on the committee’s reports.

judgesThis kind of adventurism is prohibited under the Constitutional scheme. The remedy has proved more than the worse.

The Supreme Court looking to the matter’s sensitivity would not have kept pending the Constitutional validity of the impugned Acts. It would have concluded with the requisite promptitude proportional to the gravity of the matter.

In the identical situation, the Supreme Court returned the Presidential reference unanswered through M.N.Venkatachaliah, the then Chief Justice, concerning the Ram Janma Bhumi matter. And, aptly described in its judgment after assessing the ramification of its answer.

Returned reference unanswered first time in Independent India’s annals. The Supreme Court, in the case of Dr M. Ismail Faruqui & Ors vs Union of India & Ors (1994) 6 SCC 360 observed that:

“The Court being ill-equipped to examine and evaluate such material, it would have to appoint experts in the field to do so, and their evaluation would go unchallenged. Apart from the inherent inadvisability of rendering a judicial opinion on such evaluation, the statement would be liable to the criticism of one or both sides that it was rendered without hearing them or their evidence.

This would ordinarily be of no significance for they had chosen to stay away. Still, this opinion is intended to create a public climate for negotiations, and the criticism would find the public ear. to say nothing of the fact that it would impair this Court’s credibility.

Ayodhya is a storm that will pass. The dignity and honour of the Supreme Court cannot be compromised because of it.”

The then judges believed that if the Supreme Court in a summary hearing under the Presidential references concludes there was a mosque; the government won’t be able to build the mosque if it ends otherwise.

The Muslim community will not allow building the temple. Resultantly the order of Supreme Court will operate in a vacuum. The political parties may interpret the order to their vested designs and pursuits, but the Supreme Court can not afford the impairment of its otherwise envious inspiring belief.

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The present-day Supreme Court has made the issue more complicated then it was. It would have been proper for the Court to expedite the healing. The counsel representing the farmers would have been asked to seek the protestors’ assurance that they would place the protest under suspension till the final adjudication.

In the present situation, if the committee concludes that the laws under challenge are for farmers’ benefit. Will the farmers accept that finding or the same as having any legal force?

The test provided for Constitutional Sovereignty is not whether the legislation under challenge will be beneficial or otherwise. The Constitutional test is whether the law conforms with the Constitutional principles or not. The Supreme Court failed miserably in restricting to Constitutional contours.

The courts have not to bow before the magnitude of protest if the Rule of Law has to adhere. Hypothetically, if the complaint reaches the Supreme Court’s precincts or the Supreme Court judges’ residences, would the Judiciary buckle down to such pressure. The emphatic Constitutional answer would be No, for the Supreme Court cannot satisfy every citizen of a population of 1.3 billion.

tideProtesters may be right in their protest, but the forum is Parliament and not the Supreme Court to accommodate their complaints. As every one of the populations of 1.3 billion cannot be satisfied. The citizens dissatisfied with the government’s functioning by the exercise of their franchise can secure their coveted goal.

It is beyond any shred of doubt that in the Democracy, the importance of Judiciary is supreme; resultantly confidence in Judiciary is imperative. Despite the importance, the Judiciary is also subject to criticism, for the complaint or dissent is an inalienably essential feature of the Democracy. Without dissent or criticism, Democracy would transform into autocracy.

In the present situation, the Supreme Court must not hesitate to recall the order of stay of 12.01.2021 and the pending petitions be heard with the expeditious mode. Meanwhile, the government should take all necessary measures to ensure that the protest does not go violent, the destruction of public property or the life and limbs of every protester and the others be taken due care.

Also Read: Supreme Court scores a self goal, loses further credibility

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Suresh Sahni

Suresh Sahni

Suresh Sahni is a Senior Advocate at Rajasthan High Court.

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