Let Parliament legislate. Laws must reflect Social Processes

Lawmaking is a political act The Economic Times Editorial Friday, 04 August, 2006

THE Supreme Court, in a series of observations, has implied that the Delhi Laws (Special Provisions) Act, 2006 might not stand legal scrutiny. While no final judgement has yet been delivered, the tenor of the apex court’s observations raises far-reaching questions on the extent to which the judiciary can go to intervene in governance.

The legislation has imposed a one-year moratorium on demolition and sealing of commercial premises operating illegally from the Capital’s residential areas in response to widespread opposition to the court-directed demolition drive. That the legislation is a ham-handed attempt at planning is, however, undeniable. It appears to be a retrospective alibi for illegal constructions. It’s poor governance, and the Supreme Court judges are well within their rights to disagree with the legislation. But such disagreements must not inform judicial pronouncements. Courts are supposed to deliver justice by interpreting existing laws. The judiciary cannot strike down new laws simply because they overturn earlier judgements.

Lawmaking is a political act. It’s the task of elected lawmakers to articulate the people’s mandate. Courts can throw out a piece of legislation as unconstitutional only if it infringes on a fundamental right, or subverts another superordinate law. The Delhi Act has apparently done none of that.

Laws should reflect real social processes. Commercialisation of residential zones is a logical outcome of economic growth and social development. Any attempt to institutionalise mixed land use should, however, be guided by the law of natural markets. Only those commercial activities, which serve crucial, everyday needs of residents should be allowed in residential areas. Mixed land use must not be an excuse for big commercial players to bring down the cost of doing business. The government should overhaul urban planning to avoid knee-jerk provisional legislation. Currently, town planning is thoroughly centralised. That must change. Communities must be encouraged to actively participate in the drawing up of town plans.