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Need for Robust Law-Making
Context:
The increasing constitutional challenges to Parliamentary laws and proposes strengthening legislative scrutiny by involving the Attorney-General (AG) in law-making processes.
Legislative Supremacy vs. Constitutionalism
- Indian Parliament has the power to make laws but no law can derogate from the Constitution.
- Unlike the British model of absolute parliamentary sovereignty, India follows the principle of constitutional supremacy.
Judicial Review of Legislation
- Judiciary has the power to strike down laws that are unconstitutional (Article 13).
- This power is meant to be used sparingly, but frequent challenges indicate flaws in legislative drafting and scrutiny.
- Example: Challenges to the Waqf (Amendment) Act, 2025 soon after enactment.
Reasons for Frequent Challenges
- Vague definitions and incoherent clauses.
- Cross-references and contradictions with existing laws.
- Provisions conflicting with constitutional mandates.
- Bypassing of Parliamentary committees and inadequate debates.
Illustrative Case
- Transgender Persons (Protection of Rights) Act, 2019 Bharatiya Nyaya Sanhita, 2023: disparity in punishment for sexual abuse of transgender persons vs. women — potential constitutional challenge.
Parliamentary Procedure in Theory vs. Practice
- Manual of Parliamentary Procedure (Chapter 9) provides clear steps: stakeholder consultation ? approval by Law Ministry ? Cabinet consideration ? three readings in Parliament ? committee scrutiny.
- In practice, Bills are rushed, committees are bypassed, and MPs often lack legal guidance.
Proposed Reform – Retainer Attorney-General
- Article 88 of the Constitution: AG has the right to participate in Parliamentary proceedings (though not to vote).
- Involving AG in legislative debates can help identify constitutional infirmities and legal inconsistencies before enactment.
- This would enhance quality of legislation, reduce judicial invalidations, and strengthen constitutional democracy.
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