Judicial Silence On Legislative Process: Why Indian Courts Have Never Struck Down A Law For Want Of Consultation
Shresi Sinha, Research Scholar, Chanakya National Law University, Patna
ABSTRACT
Indian courts have, over seven decades, read expansive procedural guarantees into Articles 14, 19 and 21 of the Constitution, and have repeatedly affirmed that the citizen's right to know and to participate is integral to democratic governance. Yet no Indian court has ever invalidated a statute solely because Parliament or a State Legislature enacted it without meaningful public consultation. This article examines that silence. It argues that the silence is neither accidental nor doctrinally inevitable. Part II traces the textual immunity that Articles 122 and 212 confer on legislative “proceedings,” and the judicially drawn line between procedural irregularity and constitutional illegality. Part III identifies three doctrinal near-misses manifest arbitrariness, natural justice under Article 21, and the right-to-know jurisprudence culminating in Rajeev Suri v. Delhi Development Authority in which the Supreme Court came within reach of a consultation-based standard of review without ever adopting one. Part IV places India in comparative perspective, contrasting the Gunning principles that govern administrative consultation duties in the United Kingdom with the South African Constitutional Court's willingness, in Doctors for Life International v. Speaker of the National Assembly, to invalidate primary legislation for a participation failure. Part V offers three explanations for India's persistent silence doctrinal, institutional and strategic and weighs them against one another. Part VI argues that the more institutionally appropriate corrective lies in statutory codification of pre-legislative consultation rather than judicial invention of a new ground of review, while leaving courts a modest backstop role. The article concludes by situating this silence within the broader question of judicial vision: whether restraint on process review reflects a considered constitutional morality or an unexamined doctrinal gap.
Keywords: pre-legislative consultation; judicial review; manifest arbitrariness; Article 122; deliberative democracy; constitutional morality; comparative constitutional law
