The Indian Constitution rejected absolute parliamentary sovereignty, making laws subordinate to the Constitution. Recently, even the Waqf (Amendment) Act, 2025 faced judicial scrutiny within days, reflecting rising tensions between Parliament and the courts.

Constitutional Democracy and Limits of Parliament

• No Absolute Sovereignty: The Constituent Assembly rejected the British model and ensured that Parliament cannot override the Constitution.
• Judicial Review: The power to strike down laws was intended as an exception, not a routine practice.
• Judicial Activism: Courts have increasingly acted as a parallel legislator, partly due to Parliament’s weak lawmaking practices.
• Constitutional Courts as Parallel Legislators: Over time, constitutional courts have become parallel law-making bodies, largely because Parliament has failed to draft laws with constitutional precision.
• Example: The Waqf (Amendment) Act, 2025 was challenged in court within days of enactment, and the challengers were MPs themselves.

Frequent Legal Challenges

• Increasing Judicial Scrutiny: In the last decade, courts have become a frequent site of legislative accountability.
• Pending Cases: As per the Union Law Minister (2022), 35 central legislations and constitutional amendments were under challenge in the Supreme Court since 2016.

Problem of Execution in Law-Making

• Categories of Challenges: These include constitutional scrutiny, political theatre, and flawed drafting.
• Issues in Drafting: Laws often suffer from vague definitions, incoherent clauses, contradictions with the Constitution, and lack of harmonisation with existing laws.
• Impact: Such flaws undermine economic prosperity, social harmony, and trust between the legislature and the judiciary.

System on Paper vs. Practice

• Formal Process: The Manual of Parliamentary Procedure prescribes policy proposals, stakeholder consultation, Law Ministry and Cabinet approval, and three readings in Parliament with possible committee scrutiny and clause-by-clause analysis.
• Reality: Bills are often rushed, committees bypassed, and debates minimised.
• Example: Section 18(d) of the Transgender Persons (Protection of Rights) Act, 2019 prescribes a lighter punishment for sexual abuse of transgender persons compared to women under the Bharatiya Nyaya Sanhita, 2023, leaving it open to constitutional challenge.

Democratic Deficit in Law-Making

• Overuse of Legalese: Laws are often drafted in dense legal language that is inaccessible to MPs.
• Reduced Participation: Legislators tend to toe the party line instead of engaging in substantive debate.
• Weakening of Democracy: When MPs cannot scrutinise or interrogate laws, the democratic process is weakened.

Case for a Retainer Attorney-General

• Need for Constitutional Guidance: Parliament requires a non-partisan constitutional expert to vet laws before they become litigation.
• Role under Article 88: The Attorney-General (AG) has the right to participate in parliamentary proceedings, though this is rarely invoked.
• Benefits: The AG can flag constitutional infirmities during debates and provide MPs with independent expert advice while voting.

Way Forward

• Strengthen Parliamentary Committees: Make committee scrutiny mandatory for major Bills.
• Enhance Drafting Capacity: Provide MPs with legal and research support for analysing implications of laws.
• Active Role of the Attorney-General: Invoke Article 88 more frequently for constitutional vetting of Bills.
• Legislative Transparency: Ensure adequate notice, open consultations, and plain-language drafting.
• Capacity Building: Conduct regular training for legislators in constitutional jurisprudence, judicial precedents, and legislative best practices.

Conclusion

Strengthening legislative drafting and instituting a robust constitutional review mechanism during lawmaking can reduce judicial invalidation, safeguard Parliament’s authority, and restore balance between the Legislature and the Judiciary.

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