The judicial role in improving law making:  The key to revitalising India’s reservation system

Synopsis: Rushed laws sacrifice core ideals of constitutional democracy, the judiciary can play a crucial role in course-correcting the Parliament.

Introduction

Deterioration in the quality of debate has prompted demands for reform of legislative procedures. Speaking on the matter, while CJI suggested that intellectuals enter politics, the Judiciary itself can play a positive role in this regard.

Read more: Functioning of Parliament: Challenges and way forward – Explained, pointwise

How can one measure the legislative efficiency of the Parliament?

Often, reports cite the volume of legislation as a measure of legislative efficiency. However, the quality of deliberation by public representatives is equally important. One method of doing it is by ensuring that Parliament adheres to the letter and spirit of the constitution.

How can the Judiciary improve law-making?

Firstly, 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 is not clear, bills are still passed without securing the majority vote required under Article 100. This was evident in the controversial farm laws, which were reportedly rushed and passed by voice vote in the Rajya Sabha despite objections by Opposition members. The Judiciary can make such legislation unconstitutional and void.

Secondly, checking improper use of Money Bill: Similarly, bills have been certified as Money bills to bypass the Rajya Sabha using the provisions of Article 110.

In the Aadhar case, the Supreme Court recognized its power to check that such procedural provisions are complied with. However, the judiciary does not address their violations in a timely manner. This only strengthens the resolve of violators of the constitutional spirit.

Thirdly, to ensure constitutional reasonableness of law: Judiciary can make deliberation a factor in evaluating the constitutional validity of laws. Courts can call on the State to provide justifications explaining why the law is reasonable and valid.

The court can also examine whether and to what extent the legislature deliberated the reasonableness of a measure.

The Supreme Court 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.

What should Judiciary do next?

Judiciary has demonstrated that it is possible to reform institutions by addressing their dysfunctions. So, Judiciary can nudge the legislature for internal reforms to safeguard democracy.

Source: This post is based on the article “The judicial role in improving law-making” published in The Hindu on 6th September 2021.

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