The Supreme Court’s order on keeping the farm laws in abeyance crosses the line of separation between the legislature and judiciary. In these pages, Pratap Bhanu Mehta (‘A shapeshifting justice’, IE, January 13), wrote that the order is “terrible constitutional precedent, bereft of judgment”. Eighty-five years ago, in a case involving agriculture, the United States Supreme Court struck down a federal law. Dissenting from the majority, Justice Harlan Stone (later chief justice) referring to the judiciary wrote, “the only check upon our own exercise of power is our own sense of self-restraint”. His words should make our apex court reflect on its order.
The order should also 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.
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. There is limited debate, and the house in which the bill is getting introduced does not delve into constitutional niceties. 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. So, when the treasury benches have the numbers, the government faces no difficulty getting its legislative proposals through Parliament.
The real opportunity for probing a bill’s constitutionality arises when a parliamentary committee is examining it. 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. On both these occasions, the law ministry testified that the government’s legislative proposal would stand up to constitutional scrutiny.
The committee process also has the advantage of drawing on constitutional expertise outside of the law ministry. When the committee on law and justice examined the National Judicial Appointments Commission Bill, 2013 it invited legal luminaries like Fali Nariman and Ashok Desai to share their insights with the committee. Former Lok Sabha secretary general Subhash Kashyap, in his testimony before the committee on the Citizenship Amendment Bill pointed out that the bill’s provisions may not be as per the Constitution. The government has also fielded the attorney general to appear before parliamentary committees. For example, Attorney General Goolam Vahanvati appeared before the Rajya Sabha select committee examining the Lokpal and Lokayuktas Bill 2011 and the 2013 Judicial Appointments Bill. In the past, Attorney General C K Daphtary appeared before the joint committee that scrutinised the Unlawful Activities (Prevention) Bill, 1967.
But 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 and request the presiding officers to not send the bill to a ministry specific departmentally related committee. By not referring the three farm bills to a committee, our legislature lost an opportunity for examining their constitutionality. 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.
Before passing the legislative baton to the Parliament, the government puts its bills through legal vetting and inter-ministerial consultations. Then, it is the responsibility of the legislature to satisfy itself that the legislation before it is constitutional. Lack of robust scrutiny processes weakens its 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.
This article first appeared in the print edition on February 10, 2021, under the title “Parliament’s homework”. The writer is head of outreach PRS Legislative Research