Why is it in the News?

The process of judicial review should be strong, immediate, and unambiguous in the case of statutes that are obviously unconstitutional or divisive.

Context:

• The role of judicial review has become increasingly significant in contemporary times.
• The Supreme Court of India is currently examining a crucial case regarding the constitutionality of the Citizenship (Amendment) Act (CAA) and its associated rules.
• The ambiguity in these rules has raised concerns, especially for applicants whose citizenship requests have been denied, highlighting the urgent need for redress.
• Additionally, the issue of dual citizenship for foreign applicants, without renouncing their original citizenship, has created a conflict with the law.
• This ambiguity goes against the Parent Act's spirit, as some petitioners pointed out.

Legislative Malice, Judicial Review, and the Challenge of Populist Regimes:

• Constitutional courts do not routinely interdict statutes or statutory rules, as laws passed by Parliament are generally presumed valid unless proven to contravene constitutional provisions.
  • Moreover, the legal doctrine maintains that malice cannot typically be attributed to the legislative process, as established in Manish Kumar vs Union of India (2021).
• In Gurudevdatta Vikoos Maryadit vs State Of Maharashtra (2001), the Supreme Court further emphasized that "legislative malice is beyond the pale of jurisdiction of the law courts."
  • However, this conventional wisdom may be insufficient when addressing the unique challenges posed by populist regimes employing motivated legislation.
• As populist governments worldwide increasingly weaponize legislation to further their political agendas, the question arises as to whether constitutional courts should reconsider their stance on legislative malice.
  • Given the potential for populist regimes to undermine democratic principles and erode the rule of law, the need for robust judicial review has never been greater.
• In light of these challenges, a careful reevaluation of the limits of judicial intervention may be necessary to ensure that the rights and freedoms enshrined in constitutional democracies are protected from malicious legislative actions.

Judicial Challenges and Lessons from the Recent Cases:

• Recent cases have highlighted the pressing need for a more proactive judiciary in safeguarding democratic principles and the rule of law.
• In Vivek Narayan Sharma vs Union of India (2023), the irreversible consequences of the absence of judicial intervention regarding Kashmir's special status were brought to the forefront.
• The Anoop Baranwal vs Union of India (2023) case underscored the necessity for an independent body to select the Election Commission of India (ECI).
  • However, the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, reintroduced the "Prime Minister's Committee" system for ECI appointments, raising concerns about the impartiality of the selection process.
• When this Act was challenged in Jaya Thakur vs Union of India (2024), the Court declined to halt its implementation, citing the presumption of validity.
  • This decision exemplifies how an overly deferential approach to legislative actions can potentially jeopardize democratic institutions and processes.

Case Studies and Implications of Targeted Legislation:

• The Citizenship (Amendment) Act (CAA): CAA exemplifies targeted legislation, as it explicitly excludes Muslims from the citizenship application process, demonstrating a clear case of legislative malice through religious categorization.
• Tripple Talaq case: Another instance of targeted legislation is the Muslim Women (Protection of Rights on Marriage) Act (2019), which criminalized instant triple talaq.
  • Despite the Supreme Court declaring instant triple talaq void in Shayara Bano (2017), the Act's criminalization of an already legally invalid practice appears excessive and unnecessary.
• Unintended effects: Unintended consequences have arisen from the triple talaq legislation, as some individuals now resort to alternative divorce methods or desertion to avoid potential legal repercussions.
  • Although the law aimed to protect Muslim women, it has paradoxically worsened their situation.
  • Furthermore, such divisive measures have inspired similar legislation in other states, such as anti-conversion laws, perpetuating social divisions.
• These cases reveal the need for a vigilant judiciary to scrutinize targeted legislation and ensure that laws do not perpetuate discrimination or undermine fundamental rights.
  • Addressing legislative malice is essential for preserving the integrity of democratic institutions and upholding constitutional principles.

Judicial Scrutiny in Contemporary Politics: International Perspectives and Indian Precedents

• The Evolution of Judicial Scrutiny in Modern Politics: Traditionally, the United States has been cautious about judicial nullification of statutes based on malicious intent.
  • John Hart Ely argued that using the Constitution to penalize perceived ill intentions of political leaders is inappropriate.
• Susannah W. Pollvogt's Viewpoint on Discriminatory Law: However, in today's political climate, where legislative actions driven by malice are increasingly common, a growing need for more rigorous judicial scrutiny has emerged.
  • Scholar Susannah W. Pollvogt contends that animus, or hostility, can never justify discriminatory state actions under equal protection analysis.
  • She cites the United States Dept. of Agriculture vs Moreno (1973) to illustrate how legislation targeting specific groups reflects discriminatory intent and a desire to cause harm.
• Indian Legal Precedents for Judicial Intervention: In India, there are instances where the Supreme Court has intervened to halt the implementation of parliamentary legislation.
  • In Ashoka Kumar Thakur vs Union of India (2007), the Court issued a judicial injunction regarding the allocation of a 27% quota for Other Backward Community (OBC) candidates in professional colleges.
• More recently, in Rakesh Vaishnav vs Union of India (2021), the Supreme Court's stay order on three controversial farm laws effectively prevented their enforcement.
  • This intervention eventually led to the government's withdrawal of the laws amidst widespread farmer protests.
• These cases demonstrate the vital role of the judiciary in safeguarding fundamental rights and democratic principles.
• As legislative malice becomes more prevalent, judicial scrutiny must evolve to ensure that laws do not perpetuate discrimination or undermine constitutional values.

Conclusion

To protect constitutional principles and democratic values, judicial review must be prompt, vigorous, and unambiguous when confronted with divisive or unconstitutional statutes. The Supreme Court should learn from its past decisions and recognize the political impact of its actions, particularly during critical moments. Delayed adjudication can render constitutional review ineffective, making time-sensitive intervention essential in addressing malicious and unconstitutional legislation.