Constitutional culture can be understood as the interactions between citizens and state officials regarding the meaning of the Constitution. It refers to the belief that the exercise of state power is limited by the Constitution, a document that derives its legitimacy from the will of the people.
Court challenges to legislation – such as public interest litigation – and public engagement in the legislative process through petitions and protests can all be seen as examples of constitutional culture.
The Supreme Court noted that “the mere existence of a Constitution…does not guarantee constitutionalism or a constitutional culture. It is the political maturity and traditions of a people that give meaning to a Constitution that otherwise merely embodies political hopes and ideals.
Constitutional culture can be assessed by examining the traditions, norms, and institutional arrangements that shape the resolution and enforcement of constitutional disputes.
The Constitution of India explicitly grants powers to the judiciary – specifically the High Courts and the Supreme Court – to review and strike down legislation in the event of inconsistency or violation of constitutional provisions.
This tradition of citizen-led constitutional litigation has been hailed as evidence of India’s vibrant constitutional culture, notably by legal historian Rohit De.
However, De himself admits that there is a systemic failure of the state and the very citizens who institute constitutional disputes to adhere to constitutional principles in daily and political life.
Therefore, the assertion of a robust constitutional culture is only partially true: constitutional traditions and provisions are rarely referenced in political speeches, parliamentary debates or election manifestos, while politicians are rarely held accountable. violation of the Constitution.
India’s political history has been marked by an institutional power struggle between the political branches of government and the judiciary, particularly the Supreme Court. Combined with the lack of public confidence in the executive after the emergency and the legislative deadlock in parliament caused by coalition governments, the political atmosphere after 1980 was ripe for the judiciary to extend to policy-making. and governance.
An example of this is the use of the writ of mandamus to issue policy directives to the executive and guidelines that have the force of law in areas where the legislature has been slow to act.
Although this expansion has been heralded as part and parcel of expanding the full range of human and basic rights available to Indian citizens, it has also been criticized for reasons such as: lack of political accountability; lack of constitutional and democratic legitimacy; ineffective or inefficient decision-making due to lack of institutional capacity; and an increase in the backlog of cases.
A common thread in critiques of judicial activism is that it forces the judiciary to ruminate over decidedly political issues, and therefore the judiciary has assumed a political character by engaging in policy-making and the governance.
Creating new avenues of constitutional review that prioritize dialogue between branches of government can lead to a more effective and efficient legislative model. This is not without precedent: in several countries – Ireland, Japan, Finland, Sweden and France being notable examples – there are provisions for pre-legislative scrutiny of legislation, either by a council independent, a commission, or by a political figure such as Attorney General.
Pre-legislative scrutiny is a process by which a bill is reviewed by the political branches of government prior to its enactment to assess its constitutionality or compliance with rights, thereby increasing the constitutional commitment of the political branches of government.
This can strengthen constitutional culture in three ways: first, pre-legislative review provides better protection of constitutional rights than independent judicial review because it encourages political branches to legislate in a more rights-conscious way; second, it democratizes access to constitutional rights and values by placing them beyond the range of an unelected judiciary and into the political realm; thirdly, review offers broader possibilities for constitutional scrutiny of legislation, since it is usually complemented by judicial review.
Moreover, pre-legislative control helps to overcome the limitations of judicial control. Expanding the scope of oversight by an unelected judiciary raises concerns about constitutional and democratic legitimacy.
For example, judicial oversight, unlike the legislative process, results in limited public participation in the policy-making process since the diverse views of affected stakeholders are not taken into account before the judicial stage.
Even when views are taken into account by the courts, the number of participants in legal proceedings is usually limited. Thus, the outcome is an equally likely negative or positive outcome for stakeholders throughout the legislative process. Pre-legislative scrutiny mitigates these limitations since it is integrated into the legislative stage itself.
At present, the only means for the political branches to engage on the constitutionality of legislation is during parliamentary debates, or more formally, during consideration by a parliamentary committee. This last method is quite comprehensive and often involves the consultation of legal experts, is neither mandatory nor binding; studies indicate that committee recommendations are rarely accepted.
The Joint Parliamentary Committee (JPC) report on the Citizenship Amendment Bill, 2016 illustrated the flaws in this process. The JPC specifically raised the question of the constitutionality of the bill before the government and issued recommendations against the adoption of several provisions. However, the recommendations were ignored and the bill passed through parliament.
Pre-legislative scrutiny should ideally be done in a way that encourages the political branches of government to legislate while being more aware of constitutional rights. Bearing in mind that existing procedures for pre-legislative constitutional review are optional and, as demonstrated by the JPC on the Citizenship Amendment Bill, relatively powerless, we propose that a new pre-legislative review process – legislation along the lines of the following suggestions should be launched in India.
First, the review process should be integrated into the legislative process through a constitutional amendment. This will ensure that the process cannot be easily reversed or changed.
Second, the review should be mandatory for all bills, even if it should be limited to a review of fundamental rights. It should be mandatory to avoid disputes and debates over whether the review process should be initiated and to limit the possibilities of reversing the review process entirely. The review should be limited to a review of fundamental rights as a comprehensive constitutional review would be excessively long and cumbersome; moreover, a review of fundamental rights would be sufficient to achieve the objective of strengthening constitutional culture, since constitutional disputes by citizens are mainly related to violations of fundamental rights.
Third, the review committee’s recommendation must be non-binding to avoid encroaching on the judiciary’s power of review. However, the reports could potentially be cited at the judicial review stage.
Fourth, the review should be conducted by a diverse group. Representatives of the government, the opposition, eminent jurists and legal luminaries as well as civil society organizations should be included to ensure that diverse views and interests are taken into account. It would also ensure the impartiality of the review by preventing the government from exercising a monopoly on the process.
Fifth, the review must be closely associated with public consultation procedures, which give citizens the opportunity to engage and criticize proposed legislation. While public consultation is not yet mandatory in India, it is increasingly adopted in the legislative process.
Pre-legislative scrutiny could then be conducted after this consultation to enable the review committee to review the legislation with a full understanding of its impact on relevant stakeholders, including marginalized and underrepresented sections of society. population. It could also confer an increased degree of legitimacy on the legislation, since such legislation would be less likely to be subject to judicial review at a later stage.
Sixth, the review board must issue a detailed report assessing the constitutionality of a law in the public domain. This will improve public confidence by making the process transparent and holding the committee accountable.
The proposed review process is neither perfect nor comprehensive, but it is intended to encourage discourse on the importance of a stronger constitutional culture in India. Not only does it have the potential to encourage more rights-conscious legislation in India, but also to embed respect for the Constitution in the legislative process.
Views are personal
Courtesy: the leaflet