The deterioration in the quality of deliberation in Parliament has led to calls for reform from various stakeholders, including the Chief Justice of India (CJI). The CJI highlighted the issue, emphasizing that laws passed without meaningful deliberation often contain ambiguities and gaps that lead to avoidable litigation. While the CJI recommended the participation of lawyers and intellectuals in public life to enhance deliberation, the judiciary itself can also play a significant role in improving the lawmaking process.

Issues With the Legislative Process

Issues with the Measure of Efficiency:

• The volume of Bills passed in a session is seen as a measure of efficiency, but it overlooks the impact of hasty lawmaking without proper deliberation.
• Many laws created in this manner impose burdensome obligations on people and may affect their fundamental rights.

Priority to Party Politics than Voters:

• Legislators should exercise due care and deliberation before voting for legislation, considering its implications and seeking expert evidence.
• However, the priority often lies with party politics rather than representing the interests of voters.

Lack of Effective Participation:

• Legislative forums should represent diverse interest groups and engage with those affected by laws.
• Rushed lawmaking may undermine effective participation and ignore the concerns of affected individuals or groups.

Lack of Effective Functioning:

• Rushed lawmaking turns Parliament into a mere rubber stamp, compromising equal participation and respect for fundamental rights.

Constitutional Provisions are Undermined:

• Detailed constitutional provisions on lawmaking are often disregarded, such as the requirement for a clear majority vote.
• Bills may be passed without proper compliance, as seen in the controversial farm laws’ case.

Misusing Money Bills Provision:

• Bills are sometimes certified as Money Bills to bypass the Rajya Sabha, even if they don’t meet the specific description provided under Article 110.
• The judiciary’s role in checking procedural compliance can be critical, but delays in addressing violations may weaken their impact.

Role of Judiciary

Enforcing the Spirit of Constitutionalism:

• The judiciary can play a vital role in improving the lawmaking process and upholding democratic ideals.
• It can do so by enforcing both the text and spirit of the constitutional provisions governing legislative procedures.

Changing the Method of Evaluating:

• The judiciary can make deliberation a factor in evaluating the constitutional validity of laws.
• This means examining whether the legislature deliberated on the reasonableness of a measure while exercising judicial review.

Using the Power of Judicial Review:

• The court can call on the State to provide justifications for the reasonableness of a law during judicial review.
• It can evaluate the factual basis, suitability, necessity, and proportionality of the law concerning its impact on fundamental rights.

Presumption of Constitutionality:

• The judiciary can consider deliberation when applying the doctrine of “presumption of constitutionality.”
• This would encourage legislative bodies to ensure a deliberative lawmaking process, where the court defers to legislative judgments on reasonableness.

Legislature be Reformed From Within:

• The ideal solution to remedy legislative dysfunction is internal reform within the legislature.
• However, legislative majorities may lack the incentive to cooperate for such reform, requiring public mobilization to effect change.

Judicial Nudging:

• The judiciary can use available tools to encourage legislative bodies to improve their lawmaking processes.
• By demanding evidence of careful deliberation before applying the presumption of constitutionality, the judiciary can promote a more thoughtful approach to legislation.

Conclusion

The Indian judiciary has consistently shown its potential to strengthen democracy by addressing dysfunctions in various institutions. By taking a prompt and methodical approach to reviewing the legislative process, the judiciary can play a crucial role in restoring faith in the ‘temples of democracy’ and fostering a culture of justification that aligns with the vision of the Constitution. This proactive stance can pave the way for a more accountable and transparent governance system, ultimately enriching the democratic fabric of our nation.

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