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.
Value Addition
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What procedural lapses in Parliament lead to flawed laws?
- Bypassing Committees: Less than 25% of Bills (2019–2023) were sent to Parliamentary Standing Committees, compared to 60–70% in earlier decades. This reduces scrutiny and expert input.
- Rushed Legislation: Important laws such as the Farm Acts (2020) and the Aadhaar Bill (2016) were passed as Money Bills to bypass Rajya Sabha, undermining debate.
- Poor Stakeholder Consultation: Unlike developed democracies, draft bills in India are rarely put out for public comments. (E.g., Data Protection Bill, 2019, was tabled without thorough consultation)
- Clause-by-Clause Neglect: Debates are cut short; MPs often do not engage with technical legal provisions due to lack of time and expertise.
- Opaque Drafting Process: Drafting happens primarily within ministries with little parliamentary/legal vetting before introduction.
- ARC 2nd Report (Ethics in Governance): Calls for greater pre-legislative scrutiny and institutional strengthening of committees.
How does flawed drafting affect democracy and society?
- Judicial Overreach: Poorly worded statutes lead to constant constitutional challenges (e.g., NJAC Act struck down in 2015, Transgender Rights Act 2019 contradictions). The Judiciary ends up legislating by interpretation.
- Erosion of Parliamentary Sovereignty: Frequent judicial invalidation makes Parliament look ineffective, undermining public trust.
- Democratic Deficit: Laws in dense legalese alienate both MPs and citizens, reducing informed participation.
- Economic Uncertainty: Unclear laws discourage investment (e.g., retrospective taxation case leading to Vodafone arbitration).
- Social Injustice: Disparities in sentencing/punishment (e.g., lower penalties for abuse of transgender persons than for women) perpetuate inequality.
- Law Commission Report (2008, 210th Report): Identified vague language and excessive delegation as reasons why laws face repeated judicial strikes.
Comparative Perspective
- UK: Parliamentary sovereignty model; no judicial review of primary legislation, but House of Lords Committees scrutinise bills heavily pre-enactment.
- USA: Strong judicial review, but bills are subject to Congressional hearings and exhaustive committee scrutiny with expert testimonies before passage.
- Germany: Has a robust Bundesrat (Upper House) system where laws undergo constitutional and legal vetting before final passage.
- India: Hybrid system; has judicial review, but Parliamentary scrutiny is weak. Unlike the US/UK, pre-legislative consultation is not institutionalised.
Way Forward
- Mandatory Committee Review: Make it compulsory for all non-Money Bills to be referred to standing/select committees.
- Pre-legislative Consultation Policy (2014): Institutionalise it across all ministries with draft bills published in public domain.
- Strengthening Legislative Research Services: Provide MPs with non-partisan legal/technical assistance (as in US Congressional Research Service).
- Empowering the Attorney-General: Invoke Article 88 to ensure AG flags constitutional issues during debates.
- Clarity & Accessibility: Draft laws in plain language versions for MPs and citizens, alongside legal text.
- Judicial-Parliamentary Dialogue: Structured interactions between constitutional benches and parliamentary committees to ensure harmony.
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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.
