Legislature vs Judiciary: Who reigns Supreme

New Delhi, Dec 18: The Supreme Court is hearing a petition that sought the removal of the protesting farmers around the borders in Delhi. While the Supreme Court is not going into whether the new farm laws are bad in law or not, the question is if there is a challenge to the same, can the Supreme Court strike it down.

The Supreme Court does have the powers to strike down a law passed in Parliament. If the court feels that the law is violating fundamental rights, it can strike down the same. On the other hand if the government feels that the decision of the Supreme Court is not right, then it can reverse the decision in Parliament.

In the case of the farmer protest, the Supreme Court has said that it is their fundamental right to protest. However if the protest is causing distress to people owing to violence of blockades, then the Supreme Court declare the protest as illegal and also order the police to clear the protesters.

The Supreme Court has however been proactive in several cases such as Shah Bano or Shamim Ara. The Supreme Court has several times taken upon itself to tackle issues relating to personal laws relating to every community. It has very often suggested to the government the need of a Uniform Civil Code.

The Shah Bano case of 1985 is probably one of the most path breaking judgments that the Supreme Court has issued. The Supreme Court upheld the decision of the lower court which had directed Shah Bano's husband to pay a maintenance amount under the alimony provision of Indian law applicable to all communities.

However the Rajiv Gandhi led government nullified the Supreme Court's decision. The law was passed through the Muslim Women (Protection of Rights in Divorce) Act, 1986. Under this, Section 125 was made non-operable for Muslim women and this meant that the maintenance would be paid to Muslim women only after the mandatory iddat or waiting period when the matter is being settled and not thereafter.

In 2016, the government had made a law to make Aadhaar card mandatory for the benefit for government schemes. However, a year later the Supreme Court ruled that Aadhaar could not be made mandatory as it violates fundamental rights.

In 2018, the Supreme Court said that there will be an inquiry before an FIR is under under the SC-ST law of 1989. However, the Centre reversed the Supreme Court's decision.

In 2017, the Supreme Court had declared triple talaq as unconstitutional. In 2019, the government came up with a law to abolish triple tally. According to the Constitution, the Supreme Court can review and revoke the law made by the Parliament. However, if there is no law on a particular issue, the Supreme Court is considered to be the law of the land. However, the Supreme Court cannot tamper with the basic structure of the Indian Constitution.