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Editorials/Opinions Analyses For UPSC 6 September 2021


  1. The judicial role in improving lawmaking

The judicial role in improving lawmaking


On Independence Day, Chief Justice of India (CJI) highlighted that the deterioration in the quality of deliberation in Parliament over time has prompted calls for reform from different stakeholders.


GS-II: Social Justice (Government Interventions and Policies, Issues arising out of the design and implementation of Government Policies)

Mains Questions:

What role can the Judiciary play in improving the lawmaking process in the context of rushed laws and deterioration in the quality of deliberation in Parliament while making laws? (10 marks)

Dimensions of the Article:

  1. Concerns regarding passing the laws in a rush
  2. Functional Overlapping amongst the organs of Government
  3. Role of the Judiciary in Law Making
  4. Conclusion, what can the judiciary do?

Concerns regarding passing the laws in a rush

  • The manner in which laws are being passed in Parliament without proper discussion, deliberation, and quality debates could lead to legislations with a lot of gaps and ambiguity.
  • The number of bills passed should not be the measure of efficiency, instead, emphasis should be given to quality.
  • Representatives are elected to discuss the problems of their constituency. They have to uphold the principles on which they were elected. Voting a bill without deliberating may have implications on the people at large as their rights might get affected.
  • If bills are passed without discussion, questions will not be asked to the minister concerned, expert opinion will not be taken compromising the quality of legislation.
  • The legislators are given the constitutional duty to question the executive and represent the diverse interest groups. Rushed lawmaking makes the Parliament a rubber stamp, sacrificing the two core ideals of a constitutional democracy, namely, equal participation and respect for fundamental rights.

Functional Overlapping amongst the organs of Government

  • While separation of powers is key to the workings of Indian Government, no democratic system exists with an absolute separation of powers or an absolute lack of separation of powers.
  • Every organ is, in a way, overlapped in its practical functioning with the other two organs of the Government. This overlapping enables the organs to act as a check on each other without too much interference.

Overlapping Powers of Legislature

With JudiciaryWith Executive
Impeachment and the removal of the judges. Power to amend laws declared ultra vires by the Court and revalidating it. In case of breach of its privilege and it can punish the person concerned.  The heads of each governmental ministries are members of the legislature. Through a no-confidence vote, it can dissolve the Government. Power to assess the works of the executive. Impeachment of the President. The council of ministers on whose advice the President and the Governor acts are elected members of the legislature. 

Overlapping Powers of The Executive

With JudiciaryWith Legislature
Making appointments to the office of Chief Justice and other judges. Powers to grant pardons, reprieve, respite or remission of punishments or sentence of any person convicted of any offence. The tribunals and other quasi-judicial bodies which are a part of the executive also discharge judicial functions.Power to promulgate ordinance which has the same force of the Act made by the Parliament or the State legislature. Authority to make rules for regulating their respective procedure and conduct of business subject to the provisions of this Constitution. Powers under delegated legislation.

Overlapping Powers of The Judiciary

With ExecutiveWith Legislative
Under Article 142, the Supreme Court functions as an Executive in order to bring about the complete justice.Judicial review, i.e., the power to review executive action to determine if it violates the Constitution. Rigidity / Non-Amendability of the Constitution under basic structure.

Role of the Judiciary in Law Making

  • The judiciary can play an important role in improving the lawmaking process. A straightforward way of doing this is by enforcing the text and spirit of the constitutional provisions governing legislative procedures.

Right implementation of constitutional procedures

  • Voice votes registered during the passing of the bill is marred with disagreement.
  • 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.
  • The procedures have to be followed and if need be questions should be raised about the implementation.

Bills as Money Bills

  • The description of the Money Bill is 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.
  • Bills certified as Money Bills bypass the Rajya Sabha.
  • Therefore, the judiciary should intervene in a timely manner if the features mentioned in the article are not met.

Judicial Review

  • 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.
  • The court can 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 such an approach in the Indian Hotel and Restaurants Association (2013) case.

Doctrine of presumption of constitutionality

  • It is a legal principle where the judiciary initially assumes law enacted by the legislature to be constitutional, unless the law is declared unconstitutional by the Judiciary.
  • To sustain the presumption of constitutionality the Court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived existing at the time of legislation.

Conclusion, what can the judiciary do?

  • By extending this doctrine to laws made by the legislature, 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 the ideal solution to remedying legislative dysfunction without raising concerns of separation of powers.
  • However, the government has very little incentive to cooperate for such reform. The need of the hour is significant public mobilisation on the issue.
  • 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.

-Source: The Hindu

February 2024