The Role and Challenges of the Constituent Assembly
The Constituent Assembly of India was tasked with defining a constitutional democracy that does not allow absolute parliamentary sovereignty, unlike the British model. The fundamental mandate was that Parliament has the power to legislate, but such legislation must not contradict the Constitution. The power to nullify laws was intended to be used sparingly.
Issues with Current Legislative Practices
- Constitutional courts have evolved into de facto legislators due to Parliament's failure to legislate with constitutional accuracy.
- Legislation often faces challenges including:
- Constitutional scrutiny
- Political theatre
- Flawed drafting
- There are systemic issues such as vague definitions, incoherent clauses, and contradictions with existing laws.
The Legislative Process and Its Failures
- Chapter 9 of the Manual of Parliamentary Procedure mandates a structured process for introducing legislation, including stakeholder consultation and multiple readings in Parliament.
- In practice, this process is often bypassed, leading to legislative errors.
- Example: Disparity in punishments under Section 18(d) of the Transgender Persons (Protection of Rights) Act, 2019, versus the Bharatiya Nyaya Sanhita, 2023, highlights potential constitutional challenges.
The Need for a Constitutional Functionary in Parliament
- Legislation is often drafted in complex legal language, making it difficult for MPs to fully understand.
- There is a need for a constitutional functionary, such as the Attorney-General (AG), to intervene during the legislative process to prevent legal and constitutional flaws.
- Article 88 of the Constitution allows the AG to participate in Parliament proceedings. Leveraging this could correct inconsistencies and inform MPs' voting decisions.
In conclusion, engaging the AG during legislative deliberations can ensure well-drafted statutes, reducing court invalidations and ensuring Parliament's legislative intent is preserved.
