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Updated: Feb 3, 2021

Author: Sourabh Kumar Singh, Army Institute of Law, Punjab


On 12 January Supreme Court’s decision to put stay on implementation of three agriculture laws- Farmers (Empowerment and protection) Agreement of Price Assurance and Farm services Act, Amendment to Essential Commodities Act and Farmers Produce Trade & Commerce (Promotion & Facilitation) Act can set a dangerous precedent that can lead to bad implications. These three laws were passed by the Parliament of India legitimately and cannot be considered as unconstitutional prima facie. The Court also formed a four member committee of experts in the agriculture field which included Bhupinder Singh Mann, Pramod Kumar Joshi, Ashok Gulati and Anil Ghanwat to resolve this controversial issue of Farm laws.

Chief Justice S A Bobde observed during hearing said that a committee needs to be formed to resolve this issue of farm laws. He also said that ‘staying the implementation of laws and staying the law are two different things. Court has the power to stay the executive action under the law’.

Attorney General of India K. K. Venugopal opposed the order of the Court and said that “such an order can only be passed when there are prima facie materials to show that laws violated the basic fundamental rights of citizens or constitutional schemes and have been framed without the legitimate manner’’.

The Supreme Court of India also quoted in various past judgements that the Court cannot cross their limits and start encroaching in functions of other organs of state like an executive or legislative function. It further says that judges cannot break the basic structure of Constitution i.e. separation of power.


As per Justice Markandey Katju (retired from the Supreme Court in 2011), “Judges must know their limits and they cannot behave like a monarch. Our Constitution clearly defines the separation of power and each organ of state must respect each other and must not try to interfere into others domain’’. He further says that law can only be made by Parliament of country and Parliament is the only institution who can suspend or repeal any law. A Court can declare a law ultra vires if it finds that it is unconstitutional in prima facie but the Court has failed to find anything like that in this case.

Constitutional law expert and senior advocate Rakesh Dwivedi said that “Court cannot put stay on legislation till there are strong reasons to believe that this particular law is unconstitutional at prima facie. If apex court found the matter very concerning it should have gone for a larger bench for examining''. He also said that what Supreme Court is doing it is acting more like administrator than Apex Court.

According to former solicitor General Sidharth Luthra, “Supreme Court rarely put stay the on legislation passed by parliament especially when its challenge is pending, but the power to stay the legislation based on the situation that may arise is understandable and power vested. Hence the use of power cannot be doubted’’.


Indian Drugs & Pharmaceuticals Ltd. vs. The Workman of Indian Drugs & Pharmaceuticals Ltd. (2007) 1 SCC 408

In this case, the court said ‘’that when the power is only restricted to the executive to make decisions then the court must not try to encroach into the functions of another organ of the State. The propensity in certain courts, councils to administer or perform leader capacities can't be valued. Legal activism in some extraordinary and remarkable circumstance can be supported, yet turning to it promptly and regularly, as has recently been occurring, isn't just unlawful, it is additionally laden with grave hazard for the legal executive. The court likewise said that function of the democratic system relies upon freedom on every one of its organs. Subsequently, courts should practice legal restriction and should do whatever it takes not to infringe into administrative and leader space

S.C. Chandra and Ors. vs. State of Jharkhand and Ors. JT 2007 (10) 4 SC 272

This case was related to issue of equal pay to equal work and the court held that it cannot fix the pay scale as this is completely an executive matter and judiciary should not try to interfere in domain of other organs of the constitution. The court also said a state that the constitution does not permit the court to direct or advise the executive in matters of policy or any matter which under the Constitution lies within the sphere of legislature or executive, provided these authorities do not transgress their constitutional limits or statutory powers.

Aravali Golf Course vs Chander Haas, 2007

In this judgement, the court stated' about the limits of the powers of the judiciary. 'We are mentioning these observable facts since we are over and overrunning over situations where Judges are ridiculously attempting to perform leader or authoritative capacities. As we would like to think this is unlawful. For the sake of legal activism Judges can't cross their limits and attempt to assume control over capacities which have a place with another organ of the State''.


As stated in various past landmark cases that court must not try to interfere/encroach into the issue of other organs of the constitution as this will create major disbalance in our democratic system. In words of Justice Markandey Katju, ''courts must realise that they cannot all the issues of the country and I humbly submit the apex court should not decide the constitutionality of these three laws and should refrain from giving any order trespassing into the domain of other organs of constitution’’.

In our constitutional separation of power has not been characterized in its total unbending nature yet the constitution producers have fastidiously characterized the capacities different organs of the State. the judiciary, executive and legislative need to work inside