1.The judicial role in improving lawmaking
Rushed laws, rendering Parliament a rubber stamp, sacrifice core ideals of a constitutional democracy
The deterioration in the quality of deliberation in Parliament over time has prompted calls for reform from different stakeholders. On Independence Day, Chief Justice of India (CJI) N.V. Ramana also highlighted this problem, noting that the 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 deliberation, the judiciary can also play a crucial role in improving the lawmaking 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 is lost when efficiency is achieved by passing laws without adequate notice and deliberation. Most, if not all, of these laws create burdensome obligations on persons and often affect their fundamental rights. Legislators, as representatives of the people, are expected to exercise a duty of care before casting their vote. This entails due deliberation about the implications of the law, posing amendments and questions to the concerned Minister, and requiring expert evidence through standing committees.
Moreover, it is in the legislative organ that diverse interest groups find representation. Deliberation in such a forum ensures that the views of persons who are adversely affected by a law are heard and actively engaged with. Rushed lawmaking, rendering Parliament a rubber stamp, sacrifices two core ideals of a constitutional democracy, namely, equal participation and respect for fundamental rights.
Evaluating legislative process
The judiciary can play an important role in improving the lawmaking process and securing these ideals. A straightforward way of doing this is by enforcing the text and spirit of the constitutional provisions governing legislative procedures. The Constitution contains certain detailed provisions laying out how laws are to be passed by Parliament and the State Legislative Assemblies. Unfortunately, these are often undermined. For example, even when the result through voice votes are unclear, the exact number of “ayes” and “nays” are not always counted, suggesting that Bills may be passed without securing the majority vote required under Article 100. This issue arose most recently when the controversial farm laws were reportedly rushed and passed by voice vote in the Rajya Sabha despite objections by Opposition members.
Similarly, Bills are certified as Money Bills to bypass the Rajya Sabha even where they do not meet the specific description of Money Bills provided under Article 110. This Article identifies seven areas that can be governed through the enactment of Money Bills, including the imposition of tax, the regulation of borrowing and appropriation of money out of the Consolidated Fund of India.
In the Aadhaar case, the Supreme Court, to an extent, recognised its power to check whether such procedural provisions had been complied with. However, these provisions will only be taken seriously if the judiciary addresses their violations in a timely manner. The longer a challenge is pending, the more ground the State has to argue that rights and obligations created under the law should not be disturbed for a “mere” procedural violation.
Another important method is for the judiciary to make deliberation a factor in evaluating the constitutional validity of laws. In exercising judicial review, the court’s role is to call on the State to provide justifications explaining why the law is reasonable and, therefore, valid. While doing so, the court can 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, in fact, adopted this approach in the Indian Hotel and Restaurants Association (2013) case. The court invalidated a law prohibiting dance performances only in hotels with less than three stars as rooted in class prejudice and, therefore, violative of equality. While the State justified the classification on the ground that only such hotels were sites of trafficking, the court rejected this claim by examining the lawmaking process and found that the State did not have empirical data to support this claim.
The judiciary can also make deliberation a factor in choosing whether to employ 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. It is rooted in the fiction that the legislature is a widely representative, deliberative organ, and thus “understands and correctly appreciates the needs of its own people”. When laws are passed without deliberation and without examination of the empirical basis on which they are premised, the State usually finds it more difficult to explain why such laws constitute a reasonable restriction on rights and, therefore, heavily relies on the doctrine of presumption of constitutionality to resist close judicial scrutiny. By extending this doctrine to such laws, the judiciary undermines the guarantee of judicial review provided to protect fundamental rights. Instead, if the judiciary confines 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 lawmaking process.
The CJI’s suggestion that the legislature be reformed from within is admittedly the ideal solution to remedying legislative dysfunction without raising concerns of separation of powers. However, legislative majorities have little incentive to cooperate for such reform, and significant public mobilisation on the issue would be necessary to change this. Against this backdrop, the judiciary can and should employ the tools available to it to nudge legislative bodies to improve their lawmaking processes. In fact, striking down laws on procedural grounds also mitigates concerns of separation of powers in certain respects. Unlike review on purely substantive grounds, it does not foreclose legislative bodies from re-legislating the issue and ensuring that the procedural defects in the law are rectified and the law is properly deliberated in Parliament.
The Indian judiciary has often demonstrated that it is possible to enrich democracy by addressing dysfunctions in other institutions. By adopting a swift and systematic approach to reviewing the legislative process, the judiciary can help restore faith in the ‘temples of democracy’ and push us toward the culture of justification the Constitution sought to create.
Article 100. Voting in Houses, power of Houses to act notwithstanding vacancies and quorum.— (1) Save as otherwise provided in this Constitution, all questions at any sitting of either House or joint sitting of the Houses shall be determined by a majority of votes of the members present and voting, other than the Speaker or person acting as Chairman or Speaker.
The Chairman or Speaker, or person acting as such, shall not vote in the first instance, but shall have and exercise a casting vote in the case of an equality of votes.
(2) Either House of Parliament shall have power to act notwithstanding any vacancy in the membership thereof, and any proceedings in Parliament shall be valid notwithstanding that it is discovered subsequently that some person who was not entitled so to do sat or voted or otherwise took part in the proceedings.
(3) Until Parliament by law otherwise provides, the quorum to constitute a meeting of either House of Parliament shall be one-tenth of the total number of members of the House.
(4) If at any time during a meeting of a House there is no quorum, it shall be the duty of the Chairman or Speaker, or person acting as such, either to adjourn the House or to suspend the meeting until there is a quorum.