Libertatem Magazine

Power of the Supreme Court to suspend Legislations

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India is a country that has incorporated the characteristics of both, a unitary form of governance and federal form of governance. Its unitary feature includes parliamentary supremacy whereas its federal feature comprises a single unified judicial system with a three-tier structure, i.e., The Supreme Court, High Courts and other Subordinate Courts. The doctrine of separation of powers, enabling each organ of the state to function independently/exclusively, without interference, has also been imbibed into the Indian legal framework. The Honourable Supreme Court of India is the Apex Court of the land, and the highest Court of appeal, within the territory of India. The Indian Judiciary is the highest authority in the country to uphold the sanctity of the Constitution of India in order to protect the rights and liberties of the citizens of India. The Constitution under certain provisions, has explicitly mentioned the powers exercised by the Union Judiciary. Such powers include, the power to interpret the Constitution, power of Judicial Review etc. On the other hand, the Legislature is the body that is entrusted with the power to make laws for every state. In India, the Parliament consists of two houses, the lower house (Loksabha) and the upper house (Rajyasabha). These laws are first passed by both the houses and are then sent to the President for his approval, and upon such approval, it is enforced throughout the country. However, the Apex Court asserted that the powers of the legislature are not beyond judicial review, and any trespass whatsoever, can be struck down.

In Indian Drugs & Pharmaceuticals Ltd. v. The Workman of Indian Pharmaceuticals Ltd [(2007) 1 SCC 408] it was held that the Judges must exercise judicial restraint, and perform functions within the scope of their domain. Under the Indian Constitution, the three organs of the state, namely, Legislature, Executive and Judiciary have their own broad spheres of operation. Ordinarily, it is not right on the part of any of these three organs, to encroach upon the domain of another, as the functional balance between them will be disrupted. Here, the Supreme Court itself has clearly said that, when a law is made by the Legislature, it is only the Parliament that has the rightful power to repeal or suspend its operation by way of formulating another law.


The Legislature, Executive and Judiciary perform different functions and act as separate entities. The Executive is conferred with the power to make central policy decisions and execute the laws. The Legislature on the other hand as mentioned earlier, is given the power to issue enactments. Lastly, the Judiciary is responsible for the interpretation of laws, and adjudication of disputes. ‘The Basic Structure Doctrine’, was laid down in the landmark case of Kesavananda Bharati v. State of Kerala (AIR 1973 SC 1461) in 1973. The doctrine formed the basis of power of the Indian Judiciary to review and overrule amendments made by the Parliament. In this case, the Supreme Court reiterated what was partially held in the case of Golaknath v. State of Punjab (1967 AIR 1643, 1967 SCR (2) 762), i.e., constitutional amendments made through Article 368, could not violate what formed the ‘basic structure’, in the Indian Constitution. Thus, no law that deviated/transgressed from the doctrine could be made/amended. But, the practice of imposition of checks and balances is still active and permissible, as it does not intervene upon each other’s functions. However, the Judiciary by way of its legislative functions, have issued guidelines and policy orders, through their various judgements. For example, in the Vishaka v. State of Rajasthan (AIR 1997 SC 3011) case, guidelines for repudiating sexual harassment at workplace. In 2007, Justice Katju noted that, “Courts cannot go on making/passing orders which are incapable of enforcement, or are violative of other settled laws/principles. With a view to limit judiciary’s active intrusion into other domains, certain rules are to be kept in mind. Courts do not run the government, but only act as a guardian of the Constitution. Before we delve into the power of the Supreme Court to suspend laws made by the Legislature, we must bear in mind the many circumstances in which, the Legislature has by dint of its law making powers, has overridden the outcome of some judicial pronouncements. Such reversals include the Customs Amendment and Validation Bill, 2011 which retrospectively validated all actions and duties imposed by certain customs officials who were not given the authority under the Customs Act to perform the stated acts. Some of these duties were challenged before the Supreme Court in Commissioner of Customs v. Sayed Ali [(2011) 3 SCC 537], in which the court struck down levies that were imposed by unauthorized officials. The Parliament evaded/bypassed the judgement by passing the Customs Bill, 2011. Another instance of the legislature disobeying the Supreme Court’s decision was observed in the Essential Commodities (Amendment) Ordinance, 2009, which was later passed into the Act. Here, in this case, the Apex Court held that the Centre shall purchase sugar from mills, which would include the statutory minimum price (SMP) along with profits that mills share with farmers. The amendment to this Act, enabled the Centre to substitute fair remunerative price (FRP) for statutory minimum price (SMP) and even got rid of the condition of payment of additional amount, as a requirement. This rule applied to all transactions, with respect to purchase of sugar, since 1974. This is a clear example of non observance of the Court’s decision.

The above case laws clearly highlight many occasions wherein the Legislature has overturned the judgements of the Union Judiciary. Laws are frequently tested in courtrooms, and there have also been circumstances when the Legislature is bound to comply with the ruling of the Supreme Court. This often gives rise to tension between these two branches of the state. But, regarding the process of repealing/suspending an act or a law, it is solely the function of the Parliament. But what the Apex Court can do, in case it is unwilling to enforce a particular law, it has all the power to declare such law to be ‘ultra vires’, meaning ‘beyond the power’ or ‘unconstitutional’. Hence, for the Supreme Court to proclaim the unconstitutionality, invalidity and illegality of a law, the following violations should have been committed:-

  • If the said law, is violative of the fundamental rights of the citizens
  • If the said law endangers the federal equilibrium
  • If the said law contravenes the supremacy and basic principle of the Constitution


Any legislation passed by the Parliament should in no event demean the values enshrined in the Constitution, even slightly, and in no way lead to the disintegration of the structure of the government, and lastly, should never pose a threat to the basic/inherent rights of the citizens. Therefore, if any contradiction or nonadherence to these basic guidelines comes to light, the Supreme Court may proceed to declare the law to be unconstitutional. In case only a part of the law is found to be infringing the Constitution, the doctrine of severability will apply, and that specific part of the law, shall be severed from the original legislation, and the remaining portion of the law, shall continue to operate. As the doctrine of separation of powers has not been codified in the Constitution, it becomes difficult to draw a strict line of distinction, determining the separation. Thereupon, it is the duty of each organ to acknowledge each other’s powers and functions and peacefully coexist with one another with mutual respect.


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