Context

·       The framers of India’s Constitution were acutely aware of the distinction between parliamentary sovereignty and constitutional democracy. Rejecting the British model—where Parliament reigns supreme and unbounded—they placed clear limits on legislative authority. Indian lawmakers were to operate under the Constitution, not above it. This framework ensured that while Parliament had broad powers to legislate, those powers would be subject to constitutional scrutiny.

·       Yet, over time, a concerning pattern has emerged. Increasingly, it is constitutional courts, not Parliament, that are left to resolve disputes over legislation. This shift isn’t driven solely by judicial activism—it reflects deeper legislative lapses: poor drafting, inadequate deliberation, and a recurring disregard for constitutional foresight. The result is a growing reliance on the courts to fix what Parliament failed to address.

The Expanding Role of Judicial Review

·       Originally, the power of judicial review—to invalidate laws conflicting with the Constitution—was conceived as a tool of last resort. It was meant to be rare, invoked only in extraordinary circumstances of constitutional breach. In practice, however, this power has become a routine judicial function. The courtroom has evolved into a frequent battleground over legislative validity, reflecting not just legal contestation, but parliamentary shortcomings.

·       A telling example occurred in May 2025, when the Supreme Court was petitioned to review the Waqf (Amendment) Act—barely weeks after its passage. Strikingly, some petitioners were Members of Parliament themselves, signalling the dissonance between legislative output and constitutional clarity. The Union Law Ministry’s 2022 statement—that 35 central laws and amendments were pending challenge before the Supreme Court—further illustrates this trend.

·       While judicial oversight is critical for constitutional protection, its frequent invocation exposes a systemic failure: Parliament is not vetting its laws with sufficient rigour, thereby transferring responsibility for legislative precision to the courts.

Flaws in Legislative Execution

·       Most legal challenges can be traced to one of three causes: blatant constitutional violations, performative politics, or more commonly, technical flaws in execution. It is the third—poor legislative drafting—that has become most pervasive.

·       Indian laws often feature ambiguous definitions, contradictory clauses, and erratic cross-references. At times, entire sections contradict constitutional guarantees. Such errors do not merely lead to litigation; they weaken economic predictability, social trust, and institutional credibility.

·       This deterioration is ironic given the robust design of India’s legislative process on paper. The Manual of Parliamentary Procedure outlines an elaborate system: ministries formulate policy, seek stakeholder feedback, involve the Law Ministry for legal vetting, secure Cabinet approval, and submit to parliamentary scrutiny—including committee review and clause-by-clause debate.

·       However, the gap between procedure and practice is stark. Bills are frequently tabled with minimal notice, bypassing standing committees and rushed through debates. This hasty approach creates glaring anomalies. For instance, Section 18(d) of the Transgender Persons (Protection of Rights) Act, 2019 prescribes a maximum two-year sentence for sexual abuse against transgender persons—far lighter than the seven years to life imprisonment under the Bharatiya Nyaya Sanhita, 2023 for similar crimes against women. These disparities aren''t minor oversights; they signal a failure of constitutional coherence and legislative seriousness.

The Democratic Deficit in Law-Making

·       When legislation becomes inaccessible or incoherent, it erodes democracy itself. Effective constitutional governance depends on informed legislative participation. Yet, in India’s fast-paced legislative environment, Members of Parliament are often handed dense legal texts with little time or support to evaluate their implications.

·       As debates are reduced to party-line rhetoric, lawmakers become passive participants in a highly technical process. The democratic ideal—of a diverse body of elected representatives engaging meaningfully with law-making—gets sidelined. The result is a widening gap between constitutional expectations and political reality.

·       This situation is worsened by the fact that most MPs lack formal legal training, and there are few institutional mechanisms to support them in navigating complex jurisprudence. Consequently, law-making risks becoming the exclusive domain of legal elites—alienating legislators and diminishing Parliament’s representative function.

A Constitutional Solution: The Retainer Attorney-General

·       To address this systemic imbalance, Parliament must adopt preventive safeguards—interventions that correct errors before laws are enacted. One promising solution lies in reactivating a largely dormant constitutional provision.

·       Article 88 of the Constitution permits the Attorney-General (AG) of India to participate in parliamentary proceedings. Though rarely invoked, this provision holds immense potential. By positioning the AG as a constitutional adviser within the legislative process, India can achieve two crucial outcomes.

·       First, the AG could flag constitutional inconsistencies and drafting flaws before a bill becomes law—pre-empting unnecessary litigation. Second, MPs would benefit from expert, non-partisan legal advice, empowering them to make more informed decisions. This would elevate the quality of legislative debate and align statutes more closely with constitutional norms.

·       Ultimately, well-crafted laws reduce judicial intervention. The AG, in this role, could serve as a constitutional gatekeeper, bridging the gap between politics and jurisprudence.

Conclusion

·       The framers envisioned Parliament as a sovereign legislative body, but always within constitutional bounds. That vision is threatened when legislative processes deteriorate into hasty enactments, forcing courts to act as post-facto editors.

·       Frequent judicial review is not a sign of healthy constitutionalism—it is a symptom of legislative dysfunction. To restore balance, India must strengthen its legislative institutions, support its lawmakers, and embed legal expertise in the drafting process.

·       Reviving the Attorney-General’s advisory function, as envisioned in the Constitution, offers a pathway to more coherent, constitutionally sound laws. Such a move would not only reduce litigation but would also restore Parliament’s dignity as a serious, deliberative body.

·       In the end, precision in law-making is not just a technical demand—it is a democratic imperative, essential for the long-term integrity of India’s constitutional order.