Introduction

The framers of the Indian Constitution rejected the British model of absolute parliamentary sovereignty and instead vested sovereignty in the Constitution. Parliament was given the power to make laws, but within constitutional limits. Judicial review was meant to be a sparing power, used exceptionally when laws violated constitutional principles. However, what was once exceptional has increasingly become the norm. With vague drafting, bypassing of procedures, and lack of constitutional guidance, Indian law-making has frequently ended up in litigation. This trend not only undermines democratic trust but also burdens the judiciary and disrupts policy implementation.

Why is this issue in the news?

The controversy around the Waqf (Amendment) Act, 2025, which was challenged in the Supreme Court within days of its enactment, highlights a disturbing pattern. Shockingly, the challengers included MPs themselves, indicating a lack of confidence in their own law-making. The Law Ministry has admitted that 35 central legislations and constitutional amendments were under challenge before the Supreme Court between 2016 and 2022. This points to a systemic crisis in legislative drafting and scrutiny.

The constitutional design of law-making

• No absolute sovereignty: Unlike Britain, Parliament in India operates within constitutional limits; no law can derogate from the Constitution.
• Judicial review as exception: The power to strike down laws was meant to be sparing, not routine.
• Current practice: Courts are increasingly forced into the role of a “parallel legislator” due to Parliament’s failures in precision and scrutiny.

Why do laws end up in litigation

• Constitutional scrutiny: Laws may violate constitutional guarantees or principles (e.g., Transgender Persons Act, 2019 vis-à-vis Bharatiya Nyaya Sanhita).
• Political theatre: Legal challenges are sometimes used as political tactics by opposition parties or even MPs.
• Flawed drafting: Vague definitions, incoherent clauses, poor harmonisation with existing laws, and internal contradictions.

Where does the system break down

• Bypassing procedure: Bills introduced without notice; committees sidelined.
• Rushed debates: Clause-by-clause discussion often ignored.
• Poor consultation: Stakeholders and experts not adequately consulted.
• Dense legalese: MPs unable to engage with overly technical drafting, reducing their role to party-line voting.

The human cost of poor drafting

• Economic loss: Unclear or contradictory laws disrupt industries and businesses.
• Social injustice: Unequal punishments (e.g., transgender vs. women sexual abuse provisions).
• Democratic deficit: MPs are unable to represent citizens effectively when legislation is incomprehensible.

The case for a stronger Attorney-General (AG) role

• Article 88 of the Constitution: AG has the right to participate in Parliament’s proceedings but rarely invoked.
• Preventive review: AG can identify constitutional infirmities during debate itself.
• Non-partisan guidance: AG’s counsel would enable lawmakers to vote more responsibly.
• Better statutes: Well-drafted laws prevent substitution of legislative intent by judicial interpretation.

Conclusion

India’s constitutional democracy rests on the balance of powers between Parliament and the judiciary. When Parliament abdicates its responsibility of precise and constitutional law-making, the courts inevitably step in, eroding this balance. Institutionalising preventive constitutional review within Parliament, particularly through a proactive role for the Attorney-General, can ensure that legislation serves people effectively without routinely ending up in litigation. A robust democracy demands laws that are clear, just, and constitutionally sound before they leave the House.

PYQ Relevance

[UPSC GS II] Individual Parliamentarian’s role as the national lawmaker is on a decline, which in turn, has adversely impacted the quality of debates and their outcome. Discuss.

Linkage: The decline in the individual role of MPs as lawmakers, noted in the PYQ (2019), directly links to the article’s theme of flawed law-making. Dense legalese, party whip culture, and bypassed scrutiny reduce MPs’ capacity for meaningful debate. This weakens legislative quality and pushes more laws into judicial review.

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