LEGISLATIVE SCRUTINY VS JUDICIAL SCRUTINY
Parliament is sovereign and supreme is the truism of parliamentary democracy. The laws passed by the parliament are the laws of the land, which truly depicts the role it plays in our existence. The laws thus passed should be robust, which means it should stand the test of time and space. Law coming out unscathed in all circumstances is the true translation of people’s mandate into legal mandate. Are laws enacted to fulfil the wish of the government or the will of the people? What efforts goes into getting the pulse of the people into the proposed laws.
More often than not it is mechanical exercise to be fulfilled for legal authentication for the powers that be. Are law’s objective and empirical, meeting the largest good of the largest chunk of the population, with nobody be disadvantaged or unduly helped. Is consensus a way out? Or is it government’s capability to take it through the legislature. Have we ever seen legislature going against the governments? Do the numbers only matter? It is already a long standing democratic proclamation. And we have seen it happening over and over again. Likely laws are made known even before bill stage. Contours of the law define the contours of our democracy and also our existence. Guarding one’s turf is the name of the game of this country.
If the parliament and legislatures also get into this act and that too supported or spoken by governments, their members and even presiding officers, we are in for tough times. The talks of judicial overreach keep making noises every now and then in the public domain. Simultaneously, its also a reality that variety of issues are deliberately pushed to the courts, for lack of sensible executive decision making or hidden agenda. That brings us the question of legislative scrutiny. If we were to have a sound legislative scrutiny process, the legal face of this country would have been different. One simple thought, just imagine the legal acumen of the lawyers who argue out on the specific or general application of these laws and sections in courts of law. In the same vein we can think of the judges of distinctive legal acumen who conduct trial and sit in judgement over these cases, through a neat legal empirical process. How do these two sets of legal professionals compare those people who make the law?
If all laws in the country were to go through the judicial scrutiny, you can well imagine the fate of it. Judicial review is the right legal term for judicial scrutiny. The issue is not that court is sitting in judgement over laws passed by the parliament, the issue is why glaring lapses, gaps and inconsistencies keep throwing up in the laws enacted. Laws once enacted generally by the sovereign body should have no chinks in its armor. Leave aside the cases which come for judicial review is a variety of ways, what do we have to say about the bills on the backburner. The twists and turns of data protection bill we have seen in the last so many years, while India is being ripped of its privacy. Law making needs to be transformed into a purely professional enterprise, objective and empirical and happening only in the interest of the people and nation in mind.
ARE JUDICIAL OVEREACH AND LEGAL LACUNAE TWO SIDES OF THE SAME COIN.