Amidst the increasingly prevalent practices of curtailing parliamentary debate and discussions in the process of passing legislations, TANISHK GOYAL examines whether this also amounts to an end to the presumption of constitutionality of the laws passed in this manner.
expressed his anguish at the lack of quality debate in the Parliament, which, according to him, had a direct nexus with the ambiguous laws enacted by it. This statement came days after the Essential Defence Services Bill, 2021, meant to replace the Essential Defence Services Ordinance, 2021, was passed within 15 minutes without any debate or discussion in the Lok Sabha.few days ago, Chief Justice of India Justice N.V. Ramana
However, this is not the first time that the Parliament has been used to essentially rubber stamp the decisions of the Executive. Over the course of the past few years, there have been multiple such instances where there has been no debate or discussion whatsoever in the Parliament before the passing of Bills that affect the rights of the majority, and the discrete and insular minorities. The abdication of this responsibility to discuss and debate, strikes at the heart of a deliberative and representative democracy envisaged under the Constitution of India.
Notwithstanding the glaring concerns regarding the separation of powers, and checks and balances that such abdication brings with itself, the most pertinent question which begs to be answered in this scenario is whether an electoral mandate can be weaponised in order to dispense with the need for debate and discussion in the Parliament, which forms the bedrock for the presumption of constitutionality of all laws passed by it.
Where does the presumption of constitutionality stem from?
The laws passed by the Parliament enjoy a presumption of constitutionality only because they have been agreed to by both the houses of the Parliament, an institution that is premised upon the sacred will of the electorate.
Clarifying this principle in its judgment in the case of Roger Mathew versus South Indian Bank Ltd. (2019), the Supreme Court reiterated that the principle of constitutionality exists because it is assumed that the legislature in a representative democracy understands the needs of the electorate and the conditions of the time, and the executive government which pilots legislation through the competent legislature, is accountable to both the legislature and to the people whom the elected arm of government represents.
This presumption is also premised on the fact that debate in the Parliament is one of the most fundamental means of ensuring democratic accountability. It is an affirmation that the executive’s will would be cleared through the legislature, only if it is in consonance with the will of the electorate, and any transgressions by the former shall be kept in check.
This scrutiny by the legislature which underpins the presumption of constitutionality forms the backbone of a representative democracy like ours, and acts as a safety valve to prevent it from turning into a majoritarian one.
In order to ensure that the sanctity of the legislative process of a representative democracy is maintained and no elected representative’s views are rendered unheard, Article 118 of our Constitution provides that each House of Parliament is required to make rules for regulating its procedure and conduct of business.
In pursuance of these Rules, an ordinary bill undergoes three readings in each house. This ensures that all elected members, whether belonging to the ruling party, or the opposition, get ample opportunities to voice the concerns of the constituents that they represent. The Rules of Procedure and Conduct of Business in Lok Sabha also allot a time for the debate and discussion on a bill, prescribe its scope, and define as to when a debate or discussion may be adjourned or closed.
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Why departure from rules assumes significance
A departure from any such debate or discussion before the passing of a Bill in the Parliament becomes antithetical to the principles of participatory governance and constitutional supremacy. The refusal to take the voice of even one elected representative into account while passing a legislation means that the constituents that they represent have been rendered unheard and voiceless by the Parliament.
The Constitution of India has been predicated on the idea that an individual matters, and if the Parliament cannot assure such an individual that their opinion would be heard notwithstanding any opinions that the majority might have, it will cease to be an institution of the people, for the people and by the people. This was, in fact, the view of the Supreme Court in in its judgment in State (NCT of Delhi) versus Union of India (2018), wherein it held that constitutional functionaries work under a scheme of participatory governance and mutual respect which requires the weighing in of the opinions of all constitutional functionaries in order to ensure the welfare of the people.
However, as has been observed recently, the laws passed by the Parliament enjoy a presumption of constitutionality which stems either from a one-sided debate or no debate/discussion at all. This is largely due to the whip structure within the Parliament and the single-party majority of the ruling dispensation.
While on one hand, the whip structure and anti-defection laws discourage intra-party dissent and ensure that all votes are along the party lines itself, the single-party majority enables the Members of Parliament to dispense with any debates and discussions, and assume greatness over the institution itself.
It is probably against the backdrop of these apprehensions that the renowned jurist and senior advocate Fali S. Nariman, in his autobiography, Before Memory Fades said that, “Whilst I welcome a single-party majority government, I also fear it”.
The question that arises then is, can a legislative process that subverts constitutional supremacy and does not take into account the voices of the opposition before passing a legislation, give rise to the same presumption of constitutionality as an ideal legislative process envisaged in the Rules of Procedure and Conduct under the Constitution? There are no easy answers to this question. While the law-making power of the Parliament may continue to be presumed as sacred for the times to come, yet, at this juncture, this is definitely a question worth asking.
(Tanishk Goyal is an undergraduate law student at the W.B. National University of Juridical Sciences, Kolkata. The views expressed are personal.)