Judicial role in law making reform

The deterioration in the quality of deliberations in Parliament over time has led to calls for reforms from various stakeholders. On Independence Day, Chief Justice of India (CJI) NV Ramana also highlighted this problem, noting that ambiguities and gaps in laws passed without meaningful deliberation trigger avoidable litigation. While the CJI suggested that lawyers and intellectuals enter public life to improve deliberations, the judiciary can also play an important role in improving the law-making process.

Many rely on the volume of bills passed by Parliament in a session as a measure of its efficiency. However, this measure is flawed as it does not account for what has been lost if efficiency is achieved by passing laws without adequate notice and deliberation. Most, if not all, of these laws impose enormous liability on individuals and often affect their fundamental rights. Legislators, as representatives of the people, are expected to exercise a duty of care before casting a vote. It requires proper deliberation about the implications of the law, submission of amendments and questions to the minister concerned and expert evidence through standing committees.

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Furthermore, it is in the legislative organ that diverse interest groups get representation. The deliberations in such forums ensure that the views of persons adversely affected by the law are heard and actively involved. The haste to legislate, provide Parliament with a rubber stamp, abandons the two core ideals of constitutional democracy, namely equal participation and respect for fundamental rights.

evaluation of the legislative process

The judiciary can play an important role in improving the law making process and securing these ideals. One direct way of doing this is by applying the text and spirit of the constitutional provisions governing legislative processes. There are some detailed provisions in the Constitution that describe how laws are passed by the Parliament and State Legislatures. Unfortunately, these are often underestimated. For example, even when the result is not clear through voice votes, the exact number of “yes” and “no” is not always counted, suggesting that the majority of votes required under Article 100 are achieved. Bills can be passed without This issue came up most recently. When controversial agricultural laws were passed and passed by voice vote in the Rajya Sabha, despite objections by the opposition members.

Similarly, Bills are certified as Money Bills so that they bypass the Rajya Sabha even if they do not meet the specific description of Money Bills provided under Article 110. This article identifies seven areas that can be controlled through the enactment of money bills, which include: taxes, borrowing from the Consolidated Fund of India and regulation of the appropriation of money.

In the Aadhaar case, the Supreme Court recognized to an extent its power to examine whether such procedural provisions were complied with. However, these provisions will be taken seriously only if the judiciary resolves their violations in a timely manner. As long as the challenge is pending, the state will have to argue that the rights and obligations created under the law should not be disturbed for “mere” procedural violations.

Another important method is for the judiciary to make deliberations a factor in evaluating the constitutional validity of laws. In conducting judicial review, the court’s role is to call upon the state to explain why the law is appropriate and therefore valid. While doing so, the court may also examine whether the legislature has deliberated on the reasonableness of a remedy. Legislative inquiry will generally include an evaluation of the factual basis justifying the law, the suitability of the law to achieve its goal, and the necessity and proportionality of the law relative to its adverse impact on fundamental rights. The Supreme Court actually took this approach Indian Hotel and Restaurant Association (2013) Case. The court struck down a law prohibiting dance performances only in hotels with less than three stars, as class prejudice is rooted in it and, therefore, a violation of equality. While the state justified the classification on the grounds that only such hotels were sites of smuggling, the court rejected this claim by examining the law-making process and found that the state did not have empirical data to support this claim. Was.

The judiciary may also make deliberations a factor in choosing whether to employ the principle of “presumption of constitutionality”. This principle requires the court to exercise restraint and defer legislative decisions on the reasonableness of the law. It is enshrined in the imagination that the legislature is a widely representative, deliberative organ, and thus “understands and rightly appreciates the needs of its own people”. When laws are passed without deliberation and without examining the empirical basis on which they are based, it is usually more difficult to explain to the state why such laws create reasonable restrictions on rights and, therefore, The presumption of constitutionality depends heavily on the principle. To oppose the closer judicial inquiry. By extending this principle to such laws, the judiciary undermines the guarantee of judicial review provided to protect fundamental rights. Instead, if the judiciary restricts the principle to only those cases where the state demonstrates that the laws and their consequences were carefully discussed in parliament, the judiciary would allow the legislative bodies to ensure a deliberate law-making process. can encourage.

disease prevention

The CJI’s suggestion that the legislature should be reformed from within is the ideal solution to address legislative laxity without raising concerns of separation of powers. However, the legislative majority has little incentive to cooperate with such reform, and significant public mobilization on the issue would be necessary to change this. Against this background, the judiciary can and should employ the means available to the legislative bodies to improve their law-making process. In fact, abolition of laws on procedural grounds also eases the concerns of separation of powers in some cases. Unlike review on a purely anecdotal basis, it prevents legislative bodies from re-legalizing the issue and ensuring that procedural defects in the law are corrected and the law is properly discussed in Parliament. has gone.

The Indian judiciary has often demonstrated that it is possible to enrich democracy by removing dysfunction in other institutions. By adopting a swift and systematic approach to the review of the legislative process, the judiciary can help restore confidence in the ‘temples of democracy’ and push us towards the culture of propriety created by the Constitution.

Vikram A. Narayan and Jhanvi Sindhu are experts in constitutional law