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Introduction

Pre-legislative scrutiny ensures laws are constitutionally sound and socially relevant. In India, however, hurried drafting and weak consultations often lead to judicial challenges soon after enactment, highlighting the need to strengthen this process.

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Significance of Pre-Legislative Scrutiny

• Prevents constitutional infirmities: Ensures laws are consistent with constitutional principles, reducing chances of being struck down.
  Eg: Section 18(d) of the Transgender Persons Act, 2019 prescribing lighter punishment than other laws could have been corrected earlier.
• Improves legislative quality: Scrutiny highlights vague definitions, incoherent clauses, and contradictions with existing laws before enactment.
  Eg: Frequent drafting flaws leading to court challenges reflect poor legislative examination.
• Enhances democratic deliberation: Detailed debate and committee review make law-making participatory and transparent.
• Reduces judicial intervention: Stronger pre-legislative checks would allow courts to interpret laws rather than invalidate them.
  Eg: Waqf (Amendment) Act, 2025 faced constitutional challenge within days of enactment.
• Builds public trust: Transparent drafting with stakeholder consultation reinforces legitimacy of parliamentary laws.
  

Potential Role of the Attorney-General under Article 88

• Constitutional advisor in Parliament: The AG, as a non-partisan expert, can flag constitutional inconsistencies during debates.
• Bridge between Parliament and judiciary: By anticipating judicial scrutiny, the AG helps align legislative intent with constitutional jurisprudence.
• Simplifies complex legalese: Helps MPs from diverse backgrounds understand implications of legal drafting.
  Eg: Dense legal language often prevents legislators from fully interrogating bills.
• Encourages informed voting: With AG’s guidance, MPs vote on constitutional grounds rather than just party lines.
  Eg: Current practice often reduces debate to rhetoric and whip-driven voting.
• Strengthens separation of powers: By reducing flawed laws, AG minimizes judicial substitution of legislative intent.
  Eg: Would help ensure courts interpret laws instead of striking them down frequently.
  

Challenges for Attorney-General in Strengthening Pre-Legislative Scrutiny

• Role rarely invoked: Though Article 88 grants AG right to participate, historically this provision is underutilised.
  Eg: Despite constitutional backing, AG’s presence in parliamentary debates is minimal.
• Potential politicisation: AG is appointed by the executive, raising doubts about independence and neutrality.
  Eg: Guidance may be perceived as partisan support rather than objective scrutiny.
• Resistance from legislators: MPs may see AG’s interventions as undermining parliamentary sovereignty.
• Time and workload constraints: AG already represents the government in courts; active scrutiny of all bills could overburden the office.
  Eg: Over 35 constitutional challenges were pending before SC (2016–22), showing scale of complexity.
• Lack of institutionalised framework: No formal mechanism mandates AG’s involvement at bill-drafting or debate stage.
  Eg: Existing Manual of Procedure prescribes scrutiny, but without enforcement, AG’s role risks being symbolic.

Conclusion

A stronger pre-legislative scrutiny, aided by the Attorney-General under Article 88, can curb flawed laws, reduce judicial interventions, and empower legislators. This will reinforce accountability and strengthen the foundations of India’s parliamentary democracy.

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