The Judicial Role In Improving Lawmaking

Context: Rushed laws, rendering Parliament a rubber stamp, sacrifice core ideals of constitutional democracy. Judiciary shall play a proactive role to check this misconduct.

Deterioration in quality of deliberation in Parliament

• Laws passed without meaningful deliberation: Triggers avoidable litigations and burdensome obligations on persons.
• In this context, the volume of Bills passed by Parliament in a session cannot be taken as a measure of the efficiency of Parliamentary functioning.
• Weakening participative democratic culture: As views of persons who are adversely affected by law are not actively engaged with. This violates the constitutional ideal of respect for fundamental rights.

Way forward: Revisiting role of Judiciary in improving the functioning of Parliament

• Strictly enforce the text and spirit of constitutional provisions governing legislative procedures:
  • Enforce constitutional provisions in the passage of bills:
    • Where voice votes are unclear, the exact number of “ayes” and “nays” shall be counted (securing the majority vote required under Article 100)
    • Controversies like in the passage of farm acts shall be checked.
  • Checking misuse of Money Bill (Article 110) provisions to bypass Rajya Sabha: As in case of Aadhar Act. These shall not be treated as a “mere” procedural violation, and Judiciary needs to address these in a timely manner.
• Make deliberation a factor in evaluating the constitutional validity of laws: 
  • Checking the reasonableness of legislation: While exercising judicial review, the court shall also examine whether and to what extent the legislature deliberated the reasonableness of a measure.
    • The legislative inquiry would usually include evaluating the factual basis justifying the law, the suitability of the law to achieve its aim, and the necessity and proportionality of the law relative to its adverse impact on fundamental rights. 
    • The Supreme Court adopted the above approach in the Indian Hotel and Restaurants Association (2013) case.
  • Restrict the Doctrine of “presumption of constitutionality”:
    • This Doctrine requires the court to exercise restraint and defer to legislative judgments on the reasonableness of a law.
    • By extending the Doctrine only to cases where the State shows that laws and their consequences were carefully deliberated in Parliament, the Judiciary can encourage legislative bodies to ensure a deliberative law-making process.

Conclusion: Indian Judiciary can enrich democracy by addressing dysfunctions in other institutions. By adopting a swift and systematic approach to reviewing the legislative process, Judiciary can help restore faith in the ‘temples of democracy’ and push us toward the culture of justification the Constitution sought to create.