In the order on Tuesday staying the implementation of the three farm laws against which farmers have been protesting for months, the Supreme Court cited a September order in the Maratha reservation case as a precedent.

When the court first suggested on Monday it was considering a stay on the enforcement of the laws, the government lawyer, Attorney General KK Venugopal, vociferously opposed the suggestion. The government says that the laws will transform the agricultural sector, allowing farmers to sell their crops at higher prices. But farmers believe that the laws open the way to corporate dominance of agriculture and will undermine their livelihood.s

Venugopal told the court that it should not do indirectly what it cannot do directly. That is, if the court cannot stay a law passed by Parliament through an interim order, it should not stay the enforcement of the law.

To buttress his argument, the attorney general cited several judgements.

There are three ways in which a law could be considered for an interim stay by the constitutional courts. First, if there is a question over the legislative competence of the entity that made the law. For example, a state legislature cannot make a law about a subject that falls under the jurisdiction of the Centre.

Second, if the laws seem to violate the fundamental rights.

Third, if the law looks like it violates any other part of the Constitution or the Supreme Court’s interpretation of it.

In legal terms, a law that meets any of the three standards is deemed “ex facie unconstitutional” or unconstitutional on the face of it.

On Tuesday, the court noted the attorney general’s arguments, but went on to stay the implementation of the laws nonetheless. It cited the precedent of the Maratha reservation case from Maharashtra it delivered in September to claim that it does have the powers to halt executive action under a legislation.

The order stayed reservations in educational institutions and government jobs provided to the Maratha community under the Socially and Educationally Backward Classes Act, 2018,

However, the Supreme Court issued the stay in the Maratha case only after considering the prima facie constitutionality of the reservations. It had even made an observation that the Bombay High Court may have erred in considering the Maratha case an extraordinary reservation to allow it to break the 50% ceiling on reservations imposed by the Supreme Court in 1993.

This begs the question: did the Supreme Court use the correct precedent to pass the stay order on implementation of the farm laws?

Maratha case order

When Maharashtra in November 2018 granted a 16% reservation for the Maratha community in public jobs and educational institutions, breaching the 50% ceiling on quotas put in place by the Supreme Court, challenges against the decision were filed in the Bombay High Court.

In 2019, the court held that the law was constitutional. It ruled that the reservations for Marathas fell under the exceptional category the Supreme Court had carved out in 1993 to allow for rare breaches of the 50% limit.

The judgement was challenged before the Supreme Court. On September 9, a three-judge bench led by Justice L Nageshwar Rao directed the Maharashtra state government to go ahead with admissions to educational institutions for the academic year 2020-2021 and recruitment to public jobs without reference to the Maratha quotas.

In other words, the court stayed the implementation of the Maratha quota for the academic year without actually stating that it was staying the law itself.

This judgement was cited by the Supreme Court on Tuesday to state that it did have powers to stay executive action under a law.

Maharashtra Chief Minister Devendra Fadnavis celebrates the passage of the Maratha reservation bill in November 2018. Credit: CMO Maharashtra via Twitter

Constitutionality discussed

But what the bench led by Chief Justice of India SA Bobde did not state was that the Maratha order had discussed the constitutionality of the quota law in detail before staying executive action under the law.

The court said:

“Applying the law laid down by this Court in Indra Sawhney (supra), we are of the prima facie opinion that the State of Maharashtra has not shown any extraordinary situation for providing reservations to Marathas in excess of 50 per cent. Maratha community which comprises of 30 per cent of the population in the State of Maharashtra cannot be compared to marginalized sections of the society living in far flung and remote areas. The State has failed to make out a special case for providing reservation in excess of 50 per cent. Neither has any caution been exercised by the State in doing so.” 

This means, the court’s order stalling the quotas for the 2020-’21 academic year and appointments to public jobs was made after going into the constitutional merits and demerits and finding a violation of a binding precedent on first impression.

By contrast, the Supreme Court order earlier this week on the farm laws, which cited the Maratha case order as a precedent, does not discuss whether they had on first impression violated constitutional provisions or gone against past judgements.

It simply stated that the order to stay the implementation of the laws was being passed “with the hope and expectation that both parties will take this in the right spirit and attempt to arrive at a fair, equitable and just solution to the problems”.

Therefore, it could be argued that the Supreme Court seems to have used a wrong precedent to justify its Tuesday order.