Why we must strengthen legislative law-making

Judicial reviews aim to resolve contradictions in laws but intervention prior to enactment can raise challenges.

Last week, the Supreme Court’s long-awaited judgement in The State of Tamil Nadu v. The Governor of Tamil Nadu and Anr. (2025) laid down guidelines for the President and governors in exercising their authority to pass or withhold assent to bills passed by the legislature. In addition to filling a crucial constitutional silence by prescribing timelines for the President and the governors, the bench noted that in instances where the President believes that a proposed bill reserved for her consideration may be unconstitutional, it would be prudent to seek the Supreme Court’s advice prior to taking action.

While the judgement has major implications on the Governor-State relationship, the directions regarding the President effectively seeking the Court’s opinion as part of the law-making process also assume great significance. The legislative process has always been contentious owing to political considerations and calculations; this has only increased in the last few years. Multiple Acts that touch upon sensitive constitutional provisions have often instantly been referred to the courts for judicial review following their enactment. For example, the Waqf (Amendment) Bill 2025 was challenged in the Supreme Court within a few hours of Presidential assent.

The common thread is the fact that constitutional challenges were foreseen prior to the enactment of these laws. The Court’s duty is to resolve these contradictions once the laws have been passed. The possibility of allowing the Court to give its opinion at an earlier stage is intriguing but also raises challenges. On the one hand, this provision may allow for long delays, putting enacted laws in limbo for years. On the other hand, law-making is the prerogative of the legislature and the executive; allowing the Court to effectively be a part of the process may lead to further constitutional dilemmas.

In India, the legislative process invariably takes time. First, bills are to be drafted and introduced in the Parliament. After multiple rounds of discussion, they are often referred to the departmentally-related standing committees for refinement. Following the committee’s report, the bill is reintroduced and may ultimately be passed in both Houses and is then referred to the President for assent. The bill comes into force after being notified in the gazette. In choosing to assent or withhold consent, the President, as emphasised by the Court, is bound by the aid and advice of the Council of Ministers under Article 74.

The Court’s role comes into play when it exercises its powers of judicial review to ensure that all laws which are passed are consistent with constitutional provisions. Judicial review is an ex-post mechanism, and cannot be exercised prior to the enactment of the law. It is a sign of a healthy democracy where courts can freely examine laws passed by the other two branches for constitutional infirmities. However, to safeguard judicial independence and strengthen the checks-and-balances role, judicial review is not a part of the law-making process itself.

In addition to its original and appellate jurisdiction, the Supreme Court possesses advisory jurisdiction under Article 143. This is the provision invoked by the bench in its recent judgement by noting that “only the constitutional courts have the prerogative to study and provide recommendations as regards the constitutionality of a Bill.”

While this is true, the concern arises regarding the stage at which the Court must step in. In the past, the Supreme Court has provided its opinion on references made under Article 143 on bills yet to be passed, such as the Special Courts Bill 1978. However, recognising that the President may refer to the Court and directing that the President should as a matter of prudence do so, may lead to greater ex-ante involvement of the courts in the law-making process, which may encroach into the domain of the legislature and executive.

In the long run, this may cause difficulties for judicial review. The fundamental right to move the courts for constitutional relief under Articles 32 and 226 will continue to empower individuals to demand ex-post judicial review, even if we acknowledge that the process may be made easier by the Court’s prior exercise. Further, for this directive to be enforceable, the President would have to in effect be answerable to the Court for failing to make a reference, which contradicts the immunity granted to her by virtue of her constitutional position.

The case for a Judicial Impact Office

The Supreme Court rightly recognised the need to ensure that laws are passed after thorough deliberation and with due deference to constitutionality. It is crucial to ensure that the law-making process of the legislature and executive itself is strengthened, to ensure that the constitutional quandaries discussed above do not arise and laws do not stagnate in the manner in which they have become wont to do.

In this regard, an exhaustive and open public consultation at the time of drafting the bill and its review by standing committees continues to be followed more in the breach than in the practice. The 2014 Pre-Legislative Consultation Policy prescribes special efforts to be made to reach out to the public, including particularly affected groups; explanatory notes; and transparency in displaying the feedback received and actions taken. However, there is a long way still to go in ensuring that these are followed.

Additionally, it may be time to revisit the possibility of establishing a Judicial Impact Office, as prescribed by the 2008 Justice M Jagannadha Rao Committee, to examine challenges to potential legislation in the courts and their capacity and constraints to handle them. The Judicial Impact Office would allow for the “dual involvement of the executive and judiciary” to ensure that the courts could continue to fulfil their roles of analysing the validity of legislations while bringing in executive expertise to ensure adequate capacity-building. Ultimately, strengthening the existing law-making process is crucial for ensuring that our democracy continues to function as intended.

(The writer is a research fellow – Justice, Access and Lowering Delays in India Initiative, Vidhi Centre for Legal Policy)