Deliberation and Judicial Review
Although one would intuitively consider deliberation to be a constitutional requirement, it is important to probe the reasons for such a belief. As I previously argued, the observance of political process is integral for the fulfillment of certain constitutional values. In the present case, the presence of parliamentary deliberation is a necessary condition for the existence of democracy; democracy itself being an integral feature of our constitutional scheme. Therefore, I would further expand my claim by arguing that deliberativeness is also a necessary condition for the constitutional outcome of separation of powers.
I make this argument considering both the catalysts and consequences of non-deliberativeness. With respect to the former, non-deliberativeness is often a result of executive interference in legislative process. For example, when the farm laws were introduced in the Rajya Sabha, the speaker refused to extend the time allotted for debate and conducted the vote through a voice-vote, despite explicit demands for the division of votes. Due to this, the legislature is unable to scrutinize the executive for its actions, and such legislative interference is orchestrated by the executive through the speaker. Further, the consequences of non-deliberativeness are immense. It allows the executive to introduce and promulgate laws without allowing legislative deliberation, since it is ultimately the executive that tables Bills in the Parliament.
Executive accountability is a key component of the democratic political process, and is also a part of the basic structure of our constitution. In turn, parliamentary deliberation and scrutiny are the primary means available for ensuring such accountability. Thus, the deliberativeness of the Parliament is a necessary condition for the constitutional outcomes of democracy and separation of powers. The need for executive accountability becomes more acute when a party has a dominant electoral position, such as the current ruling party. This position provides both executive and legislative control to one political party. Inversely and quite obviously, the ability to ensure accountability reduces in the face of electoral dominance. Thus, in this emerging backdrop of majoritarianism, it is all the more imperative to establish the mechanisms and processes that can ensure executive accountability. Further, it is important to examine the role that courts, as counter-majoritarian institutions, may play in such a scheme. I explore precisely this question in the following sub-section.
Delineating a model for Judicial Review
To be clear, the nature of a review of the kind proposed by this paper would involve the examination of purely procedural factors. In other words, it would mean that a legislation may be invalidated for lapses in the political process, when such a lapse leads to the non-fulfillment of a constitutional value. This form of judicial review is hitherto alien to the Indian judiciary. However, as I will illustrate, existing Indian jurisprudence permits such forms of review.
At the outset, it is imperative to first confront the largest obstacle for such a review; Article 122 of the constitution. Article 122(1) provides that “the validity of any proceedings in parliament shall not be called in question on the ground of any alleged irregularity of procedure” (emphasis supplied). A bare construction of this provision may seem to bar judicial review of the kind proposed by this paper. However, the SC has clarified the scope of the provision. Namely, that the provision bars a review of the legislative process only on the grounds of procedural irregularity, and not substantive illegality. In Raja Ram Pal v. Hon’ble Speaker, the court defined substantive illegality to mean proceedings tainted by illegality or unconstitutionality. In other words, this case holds that Article 122 does not bar those proceedings where the validity of proceedings is questioned on the basis of some alleged substantive illegality or unconstitutionality. Thus, while Article 122 excludes those cases which are premised on only procedural grounds; it does not exclude those cases where a lapse in procedure may have created some substantive illegality or unconstitutionality.
The SC has further clarified the meaning and scope of ‘substantive illegality or unconstitutionality’ to include norms or values arising from the constitution. Therefore, it is not limited to the violation of explicit constitutional provisions. The standard is broader and encompasses the violation of a constitutional norm or value. For example, in the case of Ambika Roy v The Hon’ble Speaker, the petitioner sought to annul the appointment of an MLA to the position of the chair of the Public Accounts Committee (‘PAC’). This is because the MLA had previously defected from the opposition to the majority party. In the West Bengal state legislature, there had been a long-standing tradition of only appointing a member from the minority parties. This was done so as to ensure the independence and political autonomy of that committee from the executive, given the mandate of the PAC.
The Calcutta HC, in upholding the petitioner’s suit, held that the tradition of appointing an opposition member to the PAC had become a constitutional convention. What is interesting is not the classification, but the reasoning of the court on this front. The court reasoned that this convention was ‘in aid to maintain the constitutional values and healthy democracy’ insofar as the convention sought to preserve the independence of parliamentary institutions. Thereafter, it struck down the appointment to the extent that it was inconsistent with the constitutional value that was sought to be protected.
On the basis of the whole of this jurisprudence, we can draw two broad inferences. First, that constitutional courts can subject legislative process to judicial review. Second, that this judicial review is aimed at bringing legislative process in alignment with constitutional values. Therefore, in the present case I argue that the requirements for a judicial review on the grounds of non-deliberativeness are met. This is because, (a) deliberation forms an integral part of the political process which courts are empowered to protect, and (b) because ensuring deliberativeness is integral for the essential constitutional outcomes of democracy and separation of powers. Thus, a review of the deliberativeness of the legislative process is permissible, because the procedural act of non-deliberativeness creates certain unconstitutional outcomes. Therefore, a judicial review of the deliberativeness of a legislature would essentially be a review of whether non-deliberativeness has tainted parliamentary proceedings with some unconstitutionality.
Conclusion
At this stage, one might validly object that merely because the courts can review the political process on these grounds does not mean that they should or must. I would argue that internal reform is not feasible and that courts must intervene. This is because the source of the problem is itself internal. When the executive and legislative become indistinguishable (in terms of the political actors that control the two), it is not possible for the legislature to continue to successfully hold the executive accountable.
Further, I would go to the extent to say that such forms of review may ultimately benefit the constitutional scheme. This is because I am proposing an inherently weak form of judicial review. By this I mean that a finding of a failure in the political process would certainly invalidate the law, but only to the extent that the procedural requirements for passing it were not met. It would not be a determination on the substantive constitutionality of the legislation. Thus, the legislature would have an opportunity to re-enact the law after meeting all procedural requirements. Such dialogic models of judicial review would signal to the legislature that its laws are less likely to be invalidated if legislation is promulgated through deliberative and democratic processes. Therefore, in this manner a focus on the processes of law-making can ultimately improve democratic outcomes.
The Author is a second-year student of National Law School of India University, Bengaluru.
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