Parliament – Sessions, Procedures, Motions, Committees etc

Need for rigorous scrutiny of constitutionality of the bills

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Judicial scrutiny of the laws

Mains level : Paper 2- Need for strict scrutiny of the laws by the Parliament

Farmers’  protests against the farm laws and staying of  implementation of these laws by the judiciary have once again brought into focus the process followed in the passage of laws by the parliament. This article highlights the importance of parliamentary committees.

Need for introspection on the role of parliament

  • The Supreme Court’s order on the farm laws staying their implementation crossed the line of separation between the legislature and judiciary.
  • The order should trigger introspection in Parliament.
  • Since 2019, the constitutionality of statutes passed by it, like the abrogation of Article 370, the Citizenship Amendment Act and recently the farm laws, has been challenged before the SC.
  • The highest lawmaking body should be asking itself whether it rigorously scrutinises the constitutionality of bills.

Three mechanisms to examine the constitutionality

  • Parliament has three mechanisms for examining whether a government bill adheres to constitutional principles.
  • First, any member of the Parliament can oppose the introduction of a bill by stating that it initiates legislation outside the legislative competence of the Parliament.
  • Second, MPs also get an opportunity to discuss a bill’s constitutionality while debating it in the Lok Sabha and Rajya Sabha.
  • But on both these occasions, the strength of the argument does not determine the legislative outcome.
  • The Parliament’s decision depends on the numbers that the treasury and opposition benches command on the house floor.
  • Third, the opportunity for probing a bill’s constitutionality arises when a parliamentary committee is examining it.

Advantages of scrutiny of the bill by  parliamentary committee

  • The most important opportunity of the above mentioned three opportunities is scrutiny by the parliamentary committee.
  • In the past too, the parliamentary committees have subjected the bills to strict scrutiny on the issue of constitutionality.
  • For example, the committee examining the land acquisition bill 2011 was concerned about the bill infringing upon the state governments’ power.
  • Similarly, during the deliberations on the Citizenship Amendment Bill 2016, the joint committee explicitly asked the government whether the bill would violate the spirit of Articles 14 and 25 of the Constitution.
  • The committee process also has the advantage of drawing on constitutional expertise outside of the law ministry.
  • The government has also fielded the attorney general to appear before parliamentary committees.

Weakness of parliamentary committee process

  • Our parliamentary committee process has a fatal flaw.
  • Government bills do not automatically go to committees for examination.
  • Ministers get an option to refer their bill to a select committee, they often don’t exercise this option.
  • While countries like Sweden and Finland pass their bills through two parliamentary committees.
  • One committee looks at the technical aspects of a proposed law, and a specialised committee focuses on a bill’s constitutional validity.

Consider the question “Several laws passed by the government have been challenged before the judiciary on the ground of unconstitutionality. This highlights the importance of strict scrutiny of the bills by the Parliament. In light of this, examine the role played by the parliamentary committees in the scrutiny of the bills.” 

Conclusion

Lack of robust scrutiny processes weakens Parliament’s image as the highest legislative institution and encourages judicial encroachment on its powers. After all, lawmaking should not be a mechanical stamping of the government’s legislative proposals but their careful examination by the Parliament.

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