Apr 16, 2025 08:56 IST
First printed on: Apr 16, 2025 at 08:53 IST
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At any time when a brand new legislation is handed by Parliament, the script earlier than the Supreme Court docket turns into all too acquainted. Whether or not it was the ten per cent financial reservation, the Kashmir amendments, the citizenship amendments, the Uttarakhand UCC, the identical set of petitioners with the identical set of legal professionals knocks on the doorways of the apex courtroom. Behind it is a rigorously crafted frenzy, a pre-hearing narrative, craving for the Court docket’s intervention, ostensibly to “Save Democracy”. Becoming completely into this sample, the problem to the Waqf (Modification) Act, 2025 comes as no shock. It’s price noting that even earlier than the modification grew to become operative on April 8, after receiving presidential assent, non-maintainable petitions had been filed “preemptively”. Most petitions, removed from being real, drafted and constructed after a cautious research of the legislation and precedents, have change into a recreation of quickest fingers first. Publicity trumps high quality and legislation turns into the casualty.
Shorn of rhetoric, the constitutional place is that when a laws is handed by Parliament, it’s handled as a manifestation of the peoples’ will. It’s intrinsic to fundamental democracy that the folks determine what is true and what’s improper, what’s permissible and what’s not. The Court docket steps in solely when there’s a violation of ideas which might be greater than the legal guidelines of individuals — that’s, the Structure of India, and particularly, the Basic Rights.
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Technically talking, the Structure can be a doc given by the residents to themselves. Nonetheless, it permits the atypical legal guidelines of Parliament to be examined towards constitutional provisions. That is what is named judicial overview of laws and is well-entrenched in democracies throughout the board.
Whereas judicial overview is a foundational precept of democracies, there’s a marked distinction in hanging down a legislation on the stage of a closing judgment versus staying of operation of the legislation on the preliminary stage. The previous offers with declaring a legislation as violative of the constitutional provisions after contemplating the arguments on the stage of the ultimate listening to of a matter. However, staying the operation of the legislation entails the passing of an interim order stopping the legislation from even being enforced. This predetermination, with out absolutely analysing the legislation, is constitutionally suspect.
The distinction between the 2 programs of motion may appear semantic in nature, however in actuality, each have a big impact on the democratic cloth of the nation. To ensure that a textual content to change into a legislation, it has to cross by means of each Lok Sabha and Rajya Sabha and obtain presidential assent. The sanctity that’s hooked up to legal guidelines on the preliminary stage comes from the presumption of constitutionality. It takes form owing to the supremacy of individuals in democracies and their will having the only real constitutional backing to enact any statutory legislation.
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The idea of presumption of constitutionality is an extension of this foundational democratic precept, the place the actions of the constitutional physique representing the folks, in framing the legislation, are presumed to be legitimate until absolutely confirmed in any other case. This isn’t to say that legislative actions should not prone to error or topic to judicial overview. It solely signifies that the legislative actions of Parliament shouldn’t be “put aside” or “stayed” in a routine method. If the operation of duly handed legal guidelines is stayed routinely, with out lastly adjudicating on the problem to the identical, it could quantity to negating the authority of Parliament in enacting legal guidelines.
The elements highlighted are additional accentuated by the truth that the Waqf (Modification) Act represents a commendable train in parliamentary democracy, contrasting sharply with the diminished requirements of legislative scrutiny evident immediately. The modification was initiated by means of a meticulous stakeholder session, reflecting a dedication to substantive discourse and thorough legislative deliberation. Upon introduction within the Lok Sabha in 2024, the Invoice was thoughtfully referred to a Joint Parliamentary Committee (JPC), comprising 21 Lok Sabha members and 10 Rajya Sabha members. This Committee’s method is notable: It engaged in 36 conferences, interacting with an array of stakeholders, from non secular our bodies, tutorial and civil rights entities. The JPC members undertook detailed on-ground assessments throughout 10 cities, conducting intensive dialogue with 284 stakeholders, 25 state waqf boards, and representatives from a number of state governments. The resultant product embodies a welcome resurgence of parliamentary diligence and procedural thoroughness, presenting a stark however hopeful divergence from frequent hurried legislations and controversial ordinances prevalent immediately.
By means of this methodical and inclusive legislative ballet, the Act achieves not merely administrative effectivity and authorized readability but in addition excessive democratic legitimacy. The Waqf (Modification) Act emerges as a mannequin of deliberative democracy — the place lawmaking is an clever dialogue fairly than a mere govt fiat. This rigorous course of surrounding the Waqf Modification Act, emphasises the precept of presumption of constitutionality.
On April 16, precisely per week from the date of its implementation, the Supreme Court docket is to listen to the constitutional challenges to the Act. Ought to the Supreme Court docket prolong its powers to the extent of staying the operation of a laws with out first adjudicating upon its constitutionality? The reply from precedent, constitutional concept and democratic validation is a convincing “no”. To its credit score, the Supreme Court docket has virtually by no means in historical past interfered with the operation of a statute at an interim stage.
The author is a former decide of the Kerala Excessive Court docket
