Pause or repeal: Govt may have to go back to SC or Parliament

As farmers reject the government’s proposal to keep the three contentious farm laws in abeyance for 18 months, experts have raised questions over the legislative options the Government has going forward.

The laws, passed by Parliament in September last year, were notified in the official gazette on September 27 after President Ram Nath Kovind gave his assent. While Parliament can repeal the law, there is no vocabulary in the Constitution or Parliamentary procedure for keeping a law in abeyance.

Speaking to The Indian Express, a Union Minister said that one option was to issue a notification cancelling the earlier gazette notification.

“We are waiting for the response from the farm unions to decide on our next step,” he said. “Once the notification of a law is already done, another notification cancelling that can be issued. It just needs an executive order, it does not have to go to Parliament.”

That’s easier said than done, said former Secretary General of Lok Sabha, P D T Achary.

“In my view, the law cannot be put in abeyance by the government. Once a law is passed by Parliament…the government is only the implementing authority and it cannot stifle the law,” he told The Indian Express.

This is echoed by Subhash Kashyap, another former Secretary General of the Lok Sabha.

“I have not seen such a situation where the government itself wants to keep a law in abeyance after it is given effect,” Kashyap said. “Bills have been withdrawn, enforcement of laws has been delayed by not notifying them and laws have been repealed but keeping it in abeyance after the legislative process is over has never happened before.”

The government’s proposal to keep the laws in abeyance is distinct from the January 12 Supreme Court’s stay on the laws when the court, in parallel, constituted a committee to hold talks with all stakeholders. That stay order can be vacated by the court once the committee submits its recommendations, expected in eight weeks.

“Only the Supreme Court has the power to stay a law, not the government. If the government can undo the act of the Parliament by simply backdating a notification, then what is the point of having a Parliament,” Achary said.

While the government cannot stay a law, it can delay its implementation before rules are notified.

For example, the Citizenship Amendment Act, passed by both Houses in December 2019 was notified in the official gazette in January 2020. Parliamentary procedure dictates that the rules for the legislation are to be notified within six months from the date of publication in the gazette. However, the government is yet to notify the rules for the law to be implemented.

Similarly, the Benami Transaction (Prohibition) Act, 1988 was not implemented for almost 28 years till the rules were notified in 2016.

However, once the rules are notified, Achary says – as has happened with the farm laws — the only options before the government are to ask the Supreme Court to continue its stay order or take the laws back to Parliament. The Parliament can either amend or repeal the laws.

The Parliament’s powers to repeal laws come from Article 245 of the Constitution, the provision which empowers it to make laws.

Laws are repealed when they have served their purpose and have no further reasons for their existence or, in some cases, to remove inconsistencies. Generally, when new laws are enacted, the old law on the subject is repealed through by inserting a specific repealing clause in the new law.