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Before Legislation Becomes Litigation

26 Aug 2025 GS 2 Polity
Before Legislation Becomes Litigation Click to view full image

Context

  • Growing judicial scrutiny of legislation in India.

  • Example: Waqf (Amendment) Act, 2025 challenged in Supreme Court within days of enactment.

  • Reflects tension between Parliament’s law-making and judiciary’s constitutional review.

Judicial Scrutiny of Legislation

Judicial review operates at three stages:

  1. Pre-enactment scrutiny – through parliamentary committees, Law Commission recommendations, or public debate, which courts encourage but rarely intervene in.

  2. Post-enactment scrutiny – once a law is challenged, courts assess its constitutional validity.

  3. During implementation – courts examine executive action under a law, ensuring it is not arbitrary or ultra vires.

Key Issues Identified

  1. Judiciary as Parallel Legislator

    • Framers of Constitution: Parliament’s power is subordinate to Constitution.

    • Judicial review was meant to be exceptional, but frequent litigation has made it common.

  2. Reasons for Litigation against Laws

    • Constitutional scrutiny: Provisions contradict fundamental rights or federal principles.

    • Political theatre: MPs/parties using courts to challenge opponents’ laws.

    • Flawed drafting:

      • Vague definitions.

      • Contradictory clauses.

      • Failure to harmonise with existing laws.

      • Constitutional inconsistencies.

    Example: Section 18(d) of Transgender Persons (Protection of Rights) Act, 2019 – punishment for sexual abuse (max. 2 yrs) far lower than provisions for women under Bharatiya Nyaya Sanhita, 2023 (up to life imprisonment).

  3. Breakdown of Parliamentary Procedure

    • Though Manual of Parliamentary Procedure prescribes multiple stages (policy proposal → ministry consultation → law ministry → cabinet → readings & committees), in practice:

      • Bills often introduced without adequate notice.

      • Committees bypassed.

      • Clause-by-clause debate rushed.

    • MPs left voting on dense legalese without adequate scrutiny.

  4. Democratic Deficit in Law-Making

    • Legislators from diverse walks of life expected to do complex constitutional analysis without expert help.

    • Leads to party-line voting instead of informed deliberation.

Suggested Reform

  • Use of Attorney General (AG) under Article 88:

    • AG has the right to participate in Parliamentary proceedings (rarely used).

    • A retainer-AG or constitutional review within Parliament could:

      1. Flag constitutional & legal inconsistencies during debates.

      2. Provide non-partisan expert guidance to lawmakers.

  • Benefits:

    • Prevent constitutionally flawed laws from reaching courts.

    • Reduce unnecessary judicial intervention.

    • Strengthen Parliament’s credibility & autonomy.

    • Allow courts to interpret rather than invalidate laws.


Constitutional Provisions Enabling Judicial Review

  • Article 13 – Any law inconsistent with Fundamental Rights is void.

  • Article 32 – Right to move the Supreme Court for enforcement of Fundamental Rights.

  • Article 226 – High Courts’ power to issue writs, broader in scope than Article 32.

  • Article 131 – Original jurisdiction of SC in Centre–State disputes; often invoked when States challenge Union laws.

  • Article 136 – Special Leave Petition enabling scrutiny of legislative or executive actions.

  • Article 141 – Law declared by SC binding on all courts; judicial scrutiny shapes future interpretation.

  • Article 368 – Parliament’s power to amend the Constitution, but subject to judicial review under the basic structure doctrine.

Judicial Doctrines Shaping Pre-Litigation Scrutiny

  • Basic Structure Doctrine (Kesavananda Bharati, 1973): Courts examine whether new laws or amendments violate the core principles of the Constitution.

  • Doctrine of Colorable Legislation (K.C. Gajapati Narayan Deo v. State of Orissa, 1953): Courts test whether legislature has exceeded its authority indirectly.

  • Doctrine of Pith and Substance: Used in Centre–State conflicts to check legislative competence.

  • Doctrine of Eclipse (Bhikaji Narain Dhakras v. State of M.P., 1955): A law inconsistent with FRs becomes dormant until inconsistency is removed.

  • Doctrine of Severability: Only unconstitutional parts of a statute can be struck down, saving the rest.

Key Cases Where Judicial Scrutiny Pre-empted or Curbed Litigation

  1. Kesavananda Bharati v. State of Kerala (1973)
    – Established basic structure doctrine; ensured Parliament cannot pass amendments destroying democracy, rule of law, or FRs.

  2. Indira Nehru Gandhi v. Raj Narain (1975)
    – Struck down Clause 4 of 39th Amendment; ensured judicial review over elections cannot be ousted by legislation.

  3. Maneka Gandhi v. Union of India (1978)
    – Expanded Article 21; any law affecting life and liberty must pass the test of fairness and reasonableness.

  4. Minerva Mills v. Union of India (1980)
    – Reaffirmed balance between FRs and DPSPs; judicial scrutiny ensured that unlimited amending power was unconstitutional.

  5. S.R. Bommai v. Union of India (1994)
    – Judicial review allowed for scrutiny of Article 356 proclamations (President’s Rule), preventing misuse of legislative power.

  6. I.R. Coelho v. State of Tamil Nadu (2007)
    – Judicial scrutiny extended to 9th Schedule laws if they violated basic structure.

  7. Justice K.S. Puttaswamy v. Union of India (2017)
    – Recognised Right to Privacy; struck down provisions in laws and policies that disproportionately infringed FRs.

  8. Joseph Shine v. Union of India (2018)
    – Judicial scrutiny struck down Section 497 IPC (Adultery) as violative of Articles 14, 15, 21.

  9. Navtej Singh Johar v. Union of India (2018)
    – Decriminalised homosexuality; SC scrutinised legislative intent of Section 377 IPC against constitutional morality.

  10. Recent Example – Farm Laws (2021)
    – SC stayed implementation after nationwide protests; judicial intervention ensured pre-legislative consultation was valued.

Significance of Judicial Scrutiny Before Litigation Escalates

  • Ensures Parliamentary supremacy is balanced by Constitutional supremacy.

  • Acts as a safety valve by striking down laws before they cause prolonged litigation or unrest.

  • Promotes consultative law-making: Legislature often revisits provisions when courts indicate constitutional infirmities.



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