The year 2024 was ushered in with the news that the three new criminal laws, passed by both Houses of Parliament only a few days ago, have been challenged before the Supreme Court. Notably, according to media reports, the petition states that the Bills were “enacted without any parliamentary debate” as most Opposition MPs were suspended. Earlier the Forest Conservation Amendment Act, 2023 was also challenged before the Supreme Court and the petition challenging the Act also alleged that the Joint Parliament Committee (JPC) which was set up to study, analyse, and report on the Bill ignored most of the 1309 memoranda it had received which were critical of the Bill. Therefore, the sanctity of the pre-legislative consultation process was challenged.
Common between these two petitions is the challenge to the legislative procedure and questions raised on the egregious ways in which laws were made. But is legislative procedure open to judicial review? The law on this is not settled and the jurisprudence is still evolving, which makes these petitions both risky and exciting.
Judicial review versus the theory of exclusive cognisance
Though India’s parliamentary form of government is modeled on the British parliamentary system, not all features were inherited. In the absence of a written constitution, the British model was one of ‘parliamentary sovereignty’ in which the legislature i.e. the British Parliament is the supreme lawmaking authority and the courts did not have the mandate or power to strike down a law made by parliament if it violated people’s rights. The Indian model, on the contrary, is one of constitutional supremacy, where each institution, including the Indian parliament, functions within the limits of its powers set by the Indian constitution. Therefore, any law made by it can be struck down by courts if it violates fundamental rights, other constitutional rights of the people, or other provisions of the constitution. In the famed Kesavanand Bharti judgment also, it was held that judicial review “is an integral part of our constitutional system”.
But just as there are limits to what the parliament can do, there are limits on the power of judicial review as well.
Articles 122 and 212 of the Indian constitution impose one such limitation. These Articles provide that the validity of any proceeding in parliament and legislature of any state, respectively, will not be called into question in any court of law on grounds of ‘irregularity of procedure’. There is no guidance available in the constitution on what is an ‘irregularity of procedure’. These Articles are based on the principle of “exclusive cognisance”, inherited from the British parliament, according to which both Houses of Parliament have the right to be “the sole judge of the lawfulness of their own proceedings and to settle – or depart from – their own codes of procedures”. Thus, there exists a tension between the mandate of judicial review and the limitations under Articles 122 and 212.
How have the courts resolved this tension?
Despite the bar under Articles 122 and 212, petitions challenging legislative procedure have reached the courts on many occasions and courts have found a way to carve out a scope for judicial review.
In the 2018 Puttaswamy II judgment (Aadhaar judgment), the certification of the Aadhaar Bill by the Lok Sabha Speaker as a Money Bill was challenged, among other challenges. In this case, both the majority and minority judgments concurred in holding that the decision of the Speaker to certify a Bill as a Money Bill was open to judicial review. Justice D.Y. Chandrachud, in his minority judgment, further elaborated on this and said that the theory of exclusive cognisance finds no applicability in India. Article 122 cannot and does not completely bar judicial review of legislative procedure. It was further held that this Article only prevents ‘irregularity of procedure’ from being questioned, but not the ‘illegality of procedure’.
This distinction between irregularity and illegality of procedure found one of its first mentions in Special Reference No.1 of 1964 in which the Supreme Court was pressed into service by the President of India for an advisory opinion on a question of privilege of a legislative assembly. In its opinion, the Supreme Court held that if any proceeding of the legislature is alleged to be “illegal or unconstitutional” and not “merely irregular” in the procedure, then it can be scrutinised by a court of law.
But when does a proceeding become “illegal”?
This remains an open question, both of law and fact. A basic analysis of some judgments rendered on this subject points to a possible distinction between violation of internal rules and procedures of parliament and violation of a constitutional provision. The former could be a mere ‘irregularity’ but the latter could be an ‘illegality’.
But there have been judgments where violation of non-codified conventions has been held to be ‘illegal’. For instance, in 2020, the Calcutta high court was petitioned against the nomination of an MLA as a Chairperson of the Public Accounts Committee in the West Bengal Legislative Assembly, against the set precedents and conventions. In this judgment (Ambika Roy v. The Hon’ble Speaker, West Bengal Legislative Assembly), the high court held that violation of the convention, though not laid down in any rule of procedure, was an “illegality committed” and Article 212 did not bar the Court from reviewing it.
Are lawmakers themselves not bound by any law?
The open question of when a legislative proceeding becomes ‘illegal’ raises many more questions.
Are the internal rules and procedures of the House not ‘law’ that their violation will not be considered ‘illegal’? Are the lawmakers themselves not bound by any ‘law’ when it comes to lawmaking? If these rules of procedure are not binding, can be followed when convenient and can be violated at will, why do these rules exist at all? It must be remembered that under Article 118, the constitution empowers each House of Parliament to frame their own rules and procedures but these are subject to the provisions of the constitution. This means that the substance of the rules themselves can be challenged if they violate the constitution. Then how can the violation of these rules not be considered ‘illegal’ or ‘unconstitutional’?
And not just the codified rules of procedures, the Houses are equally bound by precedents and conventions. But these are also routinely violated. For instance, the rules of procedure do not categorically provide that Bills must be mandatorily referred to Parliament Committees before they are taken up for debate, but a healthy convention existed of sending Bills to Committees for scrutiny. As per data gathered by PRS Legislative Research, the 15th Lok Sabha set a precedent of sending 71% of all Bills to Parliament Committees, but for the current 17th Lok Sabha, this stands at 16% of Bills only.
In the case of the three Criminal Bills, technically no codified rule was violated, by passing these Bills when many MPs were under suspension. But doesn’t such an undemocratic way of passing Bills militate against the Preamble of the Constitution which recognises India as a ‘democracy’ and guarantees ‘political justice’ and ‘liberty of thought and expression’? When a section of elected representatives are unable to voice their opinions, consenting or dissenting, to the making of any law, why should that not be held as ‘illegal’ or ‘unconstitutional’?
The ‘illegal’ ways of making laws
There have been many instances where Bills were pushed through parliament in violation of rules of procedure, conventions and all manners of propriety. In 2017, the Enemy Property (Amendment and Validation) Bill was passed in Rajya Sabha, when most Opposition MPs had left on the assurance that the Bill would not be taken up on that day. In 2019, the Jammu and Kashmir Reorganisation Bill was sprung as a complete surprise and pushed through Rajya Sabha without affording MPs any opportunity to read or analyse the Bill. In 2020, the Farm Bills were cleared by the Rajya Sabha through voice vote amid intense protests, as MPs’ call for division (recorded vote) on the question of sending the Bills to a Select Committee was being denied.
The 17th Lok Sabha also paints a shameful picture of pushing Bills through either amid intense protests or in the absence of Opposition, in session after session. As per my own research, in the Monsoon Session of 2020, as Opposition MPs boycotted proceedings following the Farm Bill fiasco, for 15 of the 27 Bills passed in that session, Opposition MPs were absent in either or both Houses. In the Monsoon Session of 2021, as Opposition protested because the government stonewalled their demand for debate on the Pegasus snooping scandal and farmers’ protest, the Lok Sabha cleared 18 Bills amid protests, spending an average of only 15 minutes on each. In the just concluded Winter Session of 2023, after the unprecedented suspension of 146 MPs from both Houses of Parliament for demanding discussion on Parliament security breach, 14 Bills were cleared by one or both Houses within 3 days in which the Opposition either did not participate or there was minimal participation.
Internal checks have failed
Can these egregious ways in which Bills are being passed, be brushed under the carpet, by terming these as mere ‘irregularity of procedure’? It is important to remember that in the separation of powers imagination, legislature generally and specifically, the opposition, is expected to keep the executive under check. However, as I have argued here, with government tightly controlling agenda setting, parliament is virtually powerless to enforce rules of procedures. Internal checks having failed, it is either the court of people or the court of law which can deter the government from making laws in ‘illegal’ ways.
Maansi Verma is a lawyer, public policy researcher, and Founder of Maadhyam – a civic engagement initiative bringing Parliament and policy-making closer to people.