Adjudication in the Shadow of the Remedy: Three Examples

An obvious issue that is worth addressing upfront is whether three examples, or three cases from each jurisdiction, are sufficient to estab­lish the broader claims being made in this chapter.

This is indicated by the size of the bench—comprising five judges— hearing Kartar Singh, suggesting that the Court was deciding a 'substantial question of law as to the interpretation' of the Constitution.^[646] If news­paper reports of Supreme Court decisions can be treated as a reliable indicator of case salience, the other two—Naz Foundation and the Sharma cases—were amongst the most salient constitutional cases decided by the Supreme Court between 2010 and 201 3.^[647] While bench strength provides a useful endogenous marker of case salience, newspaper reports provide a useful exogenous marker of case salience.^[648] This chapter relies on both.

Recently Enacted Legislation with a Strong Democratic Mandate: Sharma and Thompson

The Sharma cases in the Indian Supreme Court and the UK Supreme Court's decision in Thompson will be considered as the first example of the impact of the power to strike down legislation on judicial rights reasoning.

Sharma I—The First Round of Litigation

In Namit Sharma v. Union of India,^[649] the petitioner, described by the Court as a public-spirited citizen, challenged the constitutional validity of several provisions of the Right to Information Act, 2005 (RTIA) in the Indian Supreme Court.^[650] The RTIA was a revolutionary statute enacted by India's Parliament to enable citizens to access information under the control of public authorities.

The statutory eligibility criteria for the appointment of members of the Central and State Information Commissions provided that they 'shall be persons of eminence in public life with wide knowledge and experience in law, science and technology, social service, management, journalism, mass media or administration and governance'.^[651] The peti­tioner claimed that these criteria were arbitrary and vague and thus, violated the right to equality under Art. 14^[652] of the Constitution. He also contended that since the Commissions performed judicial or quasi-judicial functions, they should consist predominantly of persons with legal qualifications and judicial experience—something that the RTIA failed to stipulate. The RTIA also detailed a set of ineligibility criteria—Commission members could not be 'a Member of Parliament or Member of the Legislature of any State or Union territory... or hold any other office of profit or [be] connected with any political party or carrying on any business or pursuing any profession'.^[653] The petitioner challenged these criteria on similar grounds of vagueness.

The Court empathized with the petitioner's arguments from the out­set. However, it held that it would be reluctant to strike down a law and that doing so would be a measure of last resort. The Court claimed that the principles that had emerged from a 'consistent view' taken by the Court was that it would invoke interpretive tools such as 'reading down' or 'reading into'^[654] statutory provisions so as to save them from uncon­stitutionality.^[655] Based on this putative line of authority, the Court radi­cally reinterpreted the statutory provisions that were challenged.

Perhaps more remarkably, it held that since Information Commi­ssions possessed the trappings of a court, they were quasi-judicial authorities that should predominantly consist of persons with expe­rience in adjudication. Even if people without a judicial background were appointed, they should only make decisions in benches of two sit­ting with someone that had judicial experience. Finally, the Court held that appointment of members to the Commissions should be made in consultation with the Chief Justice of India or the Chief Justice of the relevant state. This was in spite of the statutory regime making no men­tion of judicial consultation in the appointments process—appoint­ments were to be made by a 'High Powered Committee' consisting of political leaders from the government and the opposition. In fact, legislative history indicates that provisions for judicial presence on the High Powered Committee were specifically dropped.^[656]

The Court's approach to the ineligibility criteria in the RTIA was equally radical. It considered the ineligibility criteria so broad and vague that it was unsure about which category of people would actually be eligible for appointment. It read down the disqualifications so as to be applicable post-appointment only. In other words, people holding positions that fell within the ineligibility criteria would be eligible for appointment, so long as they demitted office before being appointed as members of the Commissions.

Soon after it was made, the decision in Sharma I was subjected to widespread criticism. One scholar's remarks were particularly caustic: he described the judgment as 'rich in florid prose, disdainful of brevity' and 'animated by a desire to legislate'.^[657] The Court assumed interpretive pow­ers that were unprecedented.

Sharma II—Rethinking the Radical Approach in Sharma I

Unsurprisingly, the government too was dissatisfied with the Supreme Court's judgment in Sharma I. It soon petitioned the Court, seeking a review of its judgment, on the basis that the Court had committed 'errors apparent on the face of the record'.^[661] The government argued that reinterpreting the provisions in the manner that was done in Sharma I was justified neither by the Court's precedent nor by the terms of the RTIA. The respondent (the original petitioner in Sharma I) argued that if the Court considered it an error to reinterpret the statutory provisions in the manner that it did, it would be left with no choice but to strike them down as unconstitutional.

The Indian Supreme Court accepted most of the government's argu­ments in its judgment in Union of India v. Namit Sharma.^[662] It held that the Central and State Information Commissions did not perform judi­cial or quasi-judicial functions under the RTIA—they performed purely administrative functions and did not decide disputes between parties.

In spite of upholding the constitutional validity of the RTIA in Sharma II, the Supreme Court seemed to harbour a sense of discomfort with many of its provisions and their implementation:^[665]

Unfortunately, experience over the years has shown that the orders passed by Information Commissions have at times gone beyond the provisions of the Act and that Information Commissions have not been able to har­monise the conflicting interests [transparency and optimal utilisation of state resources] indicated in the preamble and other provisions of the Act. The reasons for this experience... could be either that persons who do not answer the criteria mentioned [in the RTIA]. have been appointed. or that the persons appointed answer the criteria. but they do not have the required mind to balance the interests indicated in the Act and to restrain themselves from acting beyond the provisions of the Act. This experience ofthe functioning of the Information Commissions prompted this Court to issue the directions in the judgment under review [Sharma I] to appoint judicial members in the Information Commissions.

The Court thus remained sympathetic with the Sharma I judgment, which is evident from its comment that the experience under the RTIA had 'prompted' the Court to reinterpret the provisions of the statute.^[666] While the Sharma II Court echoed the statutory requirement of appoint­ing persons from diverse fields to the Commissions, it also said that it hoped that persons with wide knowledge and experience in law would be appointed. Moreover, where the chief information commissioner was of the opinion that intricate questions of law would have to be decided, he should ensure that a commissioner with legal knowledge and experience would hear the matter. In order to promote transpar­ency in the appointments process, the Court said that the High Powered Committee established by the RTIA should mention, against the name of each candidate recommended, the facts that indicate his eminence in public life, and his knowledge and experience in a particular field.^[667] In one of the case hearings, the bench is reported to have remarked that independent members needed to be appointed to the Commissions and that the government was regrettably appointing people who were in their 'good books'.^[668] Thus, in spite of serious misgivings about the

RTIA, the Court chose to uphold, rather than strike down, the relevant statutory provisions.

The UK Supreme Court in Thompson

The Westminster Parliament enacted the Sexual Offences Act, 2003 (SOA) with the objective of preventing and punishing a range of sexual offences. It contained detailed provisions as to notification require­ments by sexual offenders. These notification requirements included informing authorities in advance about address changes and foreign travel plans. Every notification under the SOA had to be made in person at a police station.

The two claimants in the case had previously been convicted and sentenced for committing sexual offences and were subjected to indefi­nite notification requirements by virtue of section 82(1) of the SOA^[669] based on the term of their sentences. No statutory mechanism was available for reviewing the indefinite notification requirements, which effectively meant that they would be burdened by these requirements for life. The claimants contended that the notification requirements were inconsistent with the right to private and family life under Art. 8 of the Convention.^[670] The Divisional Court agreed, holding that lifelong notification requirements, in the absence of any review process, were disproportionate and breached Art. 8.^[671] Since the Court found that an Art. 8-compliant interpretation of the statutory provisions was not pos­sible without doing 'unacceptable violence to the statutory words',^[672] it made a declaration of incompatibility. The Court of Appeal confirmed this conclusion on the basis that Art. 8 entitled the offender to seek a review of whether the notification requirements continued to serve any legitimate purpose.^[673]

The Home Secretary appealed to the Supreme Court. While high­lighting the importance of the legislative objective of preventing sexual offending, Lord Phillips (speaking for the majority) held that lifelong, unreviewable notification requirements were not a proportionate means of achieving that objective.^[674] Implicit in the requirement to notify the police was the fact that the offender would have to explain the purpose of the notification to police authorities, which carried the risk of the information being inappropriately passed to third parties. His judgment also demonstrated a sense of unease with the manner in which the SOA was operating:

If some of those who are subject to lifetime notification requirements no longer pose any significant risk... there is no point in subjecting them to supervision or management or to the interference with their article 8 rights involved in visits to their local police stations.. Indeed subjecting them to these requirements can only impose an unnecessary and unpro­ductive burden on the responsible authorities. We were informed that there are now some 24,000 ex-offenders subject to notification require­ments and this number will inevitably grow.

By the time the matter reached the Supreme Court, the claimants had accepted that in the event that the Court found the notification requirements in breach of Art. 8, a declaration of incompatibility would be the only appropriate remedy. Accordingly, Lord Phillips confirmed the declaration of incompatibility made by the Divisional Court, with a rider that it would be open to Parliament, when addressing the incompatibility, to impose 'an appropriately high threshold' for those seeking review of their indefinite notification requirements.^[675]

The Similarities between Sharma I and Sharma II, and Thompson

The cases of Sharma I and Sharma II and Thompson were plainly different in some respects. The former concerned the review of a statute for social empowerment, the latter dealt with the compliance of provisions of a penal statute with Art. 8 of the Convention. However, there were signifi­cant similarities between the cases that are worth noticing. The legisla­tion reviewed in both cases had a strong and relatively recent political mandate. The RTIA was mentioned both in the Congress party-led United Progressive Alliance government's 'common minimum pro­gramme'^[676] and in the Congress party's election manifesto for the gen­eral elections of 2004.^[677] Many commentators considered the enactment of the RTIA as a defining moment in independent India; a concerted effort to transform India into a participatory democracy.^[678] The minister in charge of the bill described it in the Upper House of Parliament as a measure that would alter the existing administrative ethos and culture of secrecy in the functioning of government departments.^[679]

The SOA, which replaced the Sexual Offences Act, 1956, was the culmination of a detailed review of sexual offences by the New Labour government that was in office from 1997 to 2010. This review included a report^[680] by the Home Office and a government white paper.^[681] Thus, in the Sharma cases and in Thompson, the courts were faced with challenges to legislation of fairly recent vintage. In fact, when the two Supreme Courts decided these cases, the same government that was responsible for the legislation was still in office, having won the general election following the enactment of the legislation.^[682]

Another striking similarity between Thompson and the Sharma cases was that although discrete statutory provisions were under challenge for non-compliance with fundamental rights, the provisions were closely intertwined with the statutory regime in which they subsisted. This meant that the costs of striking down were high. For the Indian Supreme Court, the challenge to the eligibility and ineligibility criteria for members of the Information Commissions was as good as a chal­lenge to the entire institutional machinery of the RTIA. The Information Commissions, operating at the central and state levels, were the staple bodies that monitored public authorities' compliance with the provi­sions of the RTIA. The appointment of members to these Commissions therefore constituted a central cog in the functioning of the RTIA.^[683] Similarly, in Thompson, a specific statutory provision—section 82 of the SOA—was under challenge. It formed part of a complex web of noti­fication requirements woven together by the statute. The notification requirements in the case of offenders sentenced to imprisonment for terms of 30 months or more was one category of the several laid down in the 'notification period' table under section 82. It was, in fact, prob­ably one of the more important categories, being open-ended in the sense that it applied equally to offenders sentenced to over 30 months' imprisonment, irrespective of the extent to which they crossed the 30-month bright line.

Similar Leanings, Different Outcomes

In the Thompson and Sharma cases, the courts in both jurisdictions quickly made the switch from stage one to stage two of the analysis, realizing that the statutory provisions could not be saved based on ordinary principles of interpretation. Both courts also contemplated halting at stage two by adopting a rights-compliant interpretation of the legislation under review. The contemplation in Thompson was rela­tively short. The Divisional Court, which was the first in the hierarchy to hear the case, realized that the notification requirements under the SOA could not be reinterpreted without doing undue violence to the statute. At the level of the Court of Appeal and the Supreme Court, all the parties, and the Court, accepted that invoking section 3 was not a viable option.

The contemplation at stage two was prolonged in the Sharma cases. In Sharma I, the Indian Supreme Court used unprecedented interpre­tive techniques to reinterpret provisions of the RTIA in compliance with the constitutional right to equality. However, realizing its error, the Court acknowledged in Sharma II that it would not be possible to reinterpret the RTIA in the manner that it had done without trespassing into Parliament's domain.

What followed in both courts was most interesting. As one might have expected, the courts in the UK took the next step and moved to stage three, choosing to make a declaration that the relevant provi­sions of the SOA were incompatible with Art. 8 of the Convention. The Indian Supreme Court however, took a step back and veered away from its genuine understanding of rights, reluctantly holding instead that the provisions of the RTIA did not violate Art. 14 of the Constitution in the first place. That the Indian Supreme Court was uncomfortable with this conclusion is evident from many of the apprehensions expressed by the Court in its judgment, which have been set out above.

So why did the Indian Supreme Court (unlike its UK counterpart) reluctantly rethink the constitutionality of the provisions of the RTIA in Sharma II? The explanation can be traced back to the difference in the architecture of the HRA and the Indian Constitution. When courts in the UK consider that primary legislation violating Convention rights cannot be read compatibly, the most that they can do is to make a declaration of incompatibility. As the HRA itself affirms, the declara­tion does not affect the 'validity, continuing operation or enforcement' of legislation.^[684] The ball is simply thrown back into Parliament and the government's court, which is left with deciding whether to (and if so, how to) eradicate the incompatibility.^[685] Therefore, in spite of the declaration of incompatibility in Thompson, the notification require­ments of the SOA remained operative until they were amended by the Sexual Offences Act (Remedial) Order, 2012, which sought to address the incompatibility by providing for review of indefinite notification requirements. In sharp contrast, when Indian courts consider that pri­mary legislation cannot be read compatibly with fundamental rights, the remedial alternative for them is to strike down the unconstitutional legislative provisions, resulting in their immediate disapplication.

Hypothetically speaking, the invocation of the power to strike down legislation in cases such as Thompson and Sharma would have had serious implications. As pointed out above, the statutory provisions in question in both cases were deeply interwoven in the legislative regime as a whole. Striking them down would potentially short-circuit the implementation of the entire statute. How comfortable would the courts have been throwing a spanner into the works of a statutory regime that was recently approved by a democratically elected govern­ment which still commanded a legislative majority? Constitutional scholars have argued that the older the legislation challenged, the easier the courts find it to strike it down (and the more likely it is that they will do so).^[686] This is because recently enacted laws place the court in the tricky position of invalidating a current expression of the majority's will by repudiating a recent legislative choice.^[687] Increased time lags between the enactment of the statute and the court's judg­ment tend to lessen democratic and counter-majoritarian concerns held by judges.^[688]

Moreover, both the SOA and the RTIA were not quite 'run-of-the- mill' legislation.^[689] This is clear from parliamentary debates on the two statutes. The minister introducing the RTIA in the Upper House of the Indian Parliament described the Bill as a 'historic' piece of legislation and a 'significant landmark in the evolution of the right

to information'.¹¹⁰ Other members described it as an 'epoch-making' statute in India's independent history,¹¹¹ a 'pacesetter',¹¹² and a politi­cally bold and courageous piece of legislation.¹¹³ In the House of Commons, the Sexual Offences Bill was described as a 'very impor­tant bill' that recognized 'changing attitudes to sex and personal rela­tions'.¹¹⁴ Thus, both statutes were considered revolutionary—measures that were intended to prompt a change in societal culture. The UK Supreme Court and the Indian Supreme Court were clearly conscious of this.¹¹⁵ These factors heavily influenced the Indian Supreme Court's decision to rethink the constitutional validity of the RTIA in Sharma II by masking its real rights reasoning, and step back to stage one from the brink of stage three.

¹¹⁰ Rajya Sabha Debates, The Right to Information Bill, 2005 (12 May 2005), p. 263 (Suresh Pachouri) accessed 22 September 2016.

¹¹¹ Rajya Sabha Debates, The Right to Information Bill, 2005 (12 May 2005), p. 267 (P.C. Alexander) accessed 22 September 2016.

¹¹² Rajya Sabha Debates, The Right to Information Bill, 2005 (12 May 2005), p. 271 (Manmohan Singh) accessed 22 September 2016.

¹¹³ Rajya Sabha Debates, The Right to Information Bill, 2005 (12 May 2005), p. 332 (R. Shunmugasundaram) accessed 22 September 2016.

¹¹⁴ HC Deb 15 July 2003, vol. 409, cols 196-7 (Sally Keeble). As Simon Hughes pointed out, until the bill came up for consideration, the UK 'had never before recognized that much of the existing law had been based on prejudices and assumptions that dated back to Victorian ages'; see HC Deb 15 July 2003, vol. 409, col. 201. Hilton Dawson noted that the Bill's importance 'cannot be overstated'; see HC Deb 15 July 2003, vol. 409, col. 213.

¹¹⁵ Thompson (n. 2), para 18 (stating that 'the importance of the legislative objective [of the SOA] has never been in doubt' and that 'the prevention of sexual offending is of great social value'); Sharma I (n. 1), para 29 (stating that '[t]he Act of 2005 was enacted to radically alter the administrative ethos and culture of secrecy and control, the legacy of colonial era and bring in a new era of transparency and accountability in governance').

The Collateral Consequences of Judicial Review:

Naz Foundation and Bellinger

Naz Foundation: —The Challenge to the Criminalization of Homosexuality

In Naz Foundation v. Government of Delhi,^[690] a non-governmental organization (NGO) filed a public interest litigation petition^[691] in the Delhi High Court challenging the constitutional validity of section 377 of the Indian Penal Code, 1860 (IPC). The colonial era-provision, which formed part of the IPC drafted under the chairmanship of Lord Macaulay, reads as follows: 'Unnatural offences: Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.'

Section 377 resembled the erstwhile law proscribing 'buggery⁷ in the UK.^[692] The petition challenged section 377 to the limited extent that it criminalized consensual sexual activity between adults in private. The petitioner sought for the statutory provision to be read down to exclude such consensual activity from the ambit of section 377. The underly­ing thrust of the petitioner's argument was that state officials used sec­tion 377 as an instrument to persecute the lesbian, gay, bisexual, and transgendered (LGBT) community in India. The statutory provision, it was argued, effectively criminalized the community, forced them underground, and impeded measures for the prevention and control of HIV/AIDS. The legal grounds for the challenge were that section 377, in its existing form, violated Arts 14,^[693] 15,^[694] 19,^[695] and 21^[696] of the Constitution.

In a widely acclaimed judgment,^[697] the Delhi High Court held that section 377 violated Arts 14, 15, and 21 of the Constitution.^[698] In the Court's view, the provision discriminated on the ground of sexual ori­entation, targeted homosexuals as a class, and was contrary to consti­tutional morality. The Court granted the relief sought by the petitioner, namely, that section 377 be read down so as to exclude consensual sexual activities between adults in private. The section would continue to govern 'non-consensual penile non-vaginal sex'^[699] and 'penile non- vaginal sex involving minors'. According to the Court, the possibility of 'reading down' legislation in this manner had been endorsed in several previous Supreme Court judgments.^[700] The Court clarified that its judgment would operate until Parliament chose to amend the law appropriately.

The Delhi High Court's judgment was appealed to the Supreme Court.^[701] In its judgment, the Indian Supreme Court held that every statute in force in India, including those enacted during the British Raj, such as the IPC, would carry a presumption of constitutionality. In a questionable line of reasoning, the Court went a step further by saying that by allowing section 377 to remain on the statute book, the Union Parliament had effectively adopted it. Following Sharma I, it held that striking down a law as unconstitutional would be a measure of last resort.^[702] While endorsing the general notion that a statute can be read down in order to save it from being struck down, the Supreme Court rejected the High Court's decision to read down section 377.

The Court advocated a more restrained approach in reviewing the constitutionality of legislation, stating that it was not permissible to 'change the essence of the law' and 'create a new law which in its opinion is more desirable' under the guise of interpretation.^[703] It also noted that the principle of reading down should be applied bearing in mind the scheme of the statute and the intention of the legislature. The Supreme Court clarified that it was not empowered to strike down a law 'by virtue of its falling into disuse or the perception of the society having changed'.^[704] Section 377, in the Court's view, did not criminal­ize a particular identity or orientation, but uniformly regulated sexual conduct.

The Indian Supreme Court found that the High Court was mistaken in even considering the challenge to section 377, because the petition­ers had 'miserably failed' to furnish a factual foundation to support its challenge.^[705] In an astonishing observation, the Supreme Court said that while reading down section 377 of the IPC, the High Court had overlooked that a 'miniscule fraction of the country's population' could be classified as LGBT.^[706]

The Supreme Court ended its judgment with a couple of interesting riders, which seemed to indicate some sense of unease with the result that it arrived at. First, it held that the fact that it was claimed that section 377 was used to perpetuate harassment, blackmail, and acts of torture against LGBT persons could not be taken into account while deciding the constitutionality of the section, since it neither mandated nor condoned such acts. However, it 'might be a relevant fact for the legislature to consider while judging the desirability of section 377'.^[707] The Court then also emphasized that notwithstanding its judgment, the legislature was free to consider deleting or amending section 377.

The judgment was justifiably met with heavy criticism from differ­ent quarters.^[708] By refusing to uphold the rights of what it considered a minority of the population, the Court misconceived the nature and purpose of judicial review in a constitutional democracy. Its conclusion that Parliament had endorsed section 377 by failing to amend it was similarly flawed. There could be many explanations for Parliament's failure to amend a penal provision handed down from the colonial era, and a desire to endorse the provision is not necessarily the best one. The Court's conclusion that the petitioners' claim had no factual foun­dation was also misconceived—the petition was supported with affida­vits submitted by several members of the LGBT community reflecting upon the persecution they had suffered at the hands of public officials. Finally, the court had misread the judgment of the Delhi High Court by labelling it as judicial legislation that changed the essence of the law. The High Court had simply restricted the application of the section to constitutionally permissible cases, a process that was grounded in exist­ing Supreme Court jurisprudence. Having clarified that the judgment is legally untenable, the rest of this chapter will put the correctness of the Indian Supreme Court's conclusions aside, focussing instead on the reasons for which it chose to uphold section 377.

Bellinger and Transsexual Relationship Rights

The issue before the House of Lords in Bellinger v. Bellinger^[709] was whether the marriage between the claimant, a post-operative male to female transsexual, to a man, was valid. The High Court^[710] and the Court of Appeal^[711] were unable to hold in the claimant's favour by virtue of section 11(c) of the Matrimonial Causes Act, 1973, which stipulated that a marriage would be void on the ground that the par­ties to it were not 'respectively male and female'. Relying on existing precedent,^[712] both courts held that the words 'male' and 'female' had to be judged according to fixed biological criteria, which the claimant did not satisfy. The Courts lamented their inability to provide a remedy to the claimant, but considered that the statutory provision left them with no choice.^[713]

When the case went in appeal to the House of Lords,^[714] the claim­ant advanced a new alternative claim—that section 11(c) of the Matrimonial Causes Act be declared incompatible on the basis that it was inconsistent with Art 8^[715] and 12^[716] of the Convention. The Court had little hesitation in getting through stage one by holding that sec­tion 11(c), based on ordinary principles of interpretation, was incom­patible with Convention rights. But before making a declaration of incompatibility under section 4 of the HRA, it would need to consider whether the statutory provision could be read compatibly by invoking the interpretive obligation under section 3.^[717] Each of the judges agreed that this was not a fit case to invoke section 3. Lord Nicholls said that the words 'male' and 'female' in section 11(c) could not be ascribed an extended meaning by including those who were born with one sex, but later became or were regarded as persons of an opposite sex, within its grasp. Moreover, taking this interpretive route would represent a major change in the law having far-reaching ramifications—something that Parliament was institutionally much better equipped to deal with. Lord Hope echoed a similar sentiment, stating that any attempt to expand the meanings of the words 'male' and 'female' in section 11(c) would lead to difficulty, as it would be challenging to narrow down on a set of criteria to determine whether and when a person belonged to a particular gender. Section 3 did not enable judges to legislate. The problems that reinterpreting section 11(c) gave rise to, in his view, were not conducive to judicial resolution, and were better left to Parliament.

The next question for the Lords' consideration was whether a decla­ration of incompatibility should be made.^[718] The government argued that a declaration of incompatibility would serve no useful purpose, since legislation removing the incompatibility was under consider­ation. The Court still chose to make a declaration of incompatibility on the basis that the government was not in a position to give an assurance that remedial legislation would be enacted^[719] and that it was important to record the present state of the law's incompatibility.^[720]

What Prompted the Indian Supreme Court to Avoid Exercising the Power to Strike Down Legislation?

Naz Foundation and Bellinger were different in terms of the kind of legislation that was under review. In the former, a criminal offence car­rying a 10-year sentence was challenged; the latter concerned the denial to transsexuals of a basic civil right—the right to enter into a legally recognized marriage. However, there are several interesting points of convergence between the two cases. To begin with, both cases involved claims that were founded on the identity of minority social groups. Respect for their identity and the need to recognize changes in social attitudes formed the subtext of the arguments made before the Indian Supreme Court and the House of Lords.

The laws that were challenged in both cases did not enjoy the fresh democratic support and political legitimacy like the laws under chal­lenge in the Sharma cases and Thompson. Section 377 formed part of the IPC that was imposed by the British colonial government in India: the provision was enacted by an all-British Legislative Council^[721] and had no grounding in Indian customs or values. The Law Commission of India had recommended the deletion of section 377 over a decade before the case challenging its validity reached the corridors of the Supreme Court.^[722]

Section 11(c) of the Matrimonial Causes Act, 1973, which was at issue in Bellinger, was enacted about three decades before the judgment of the House of Lords. Before the Lords' decision, the European Court of Human Rights, Strasbourg (Strasbourg Court) had already declared the UK's failure to recognize the marriage of post-operative trans­sexuals as being contrary to the Convention.^[723] After the Strasbourg Court's decision, the Lord Chancellor had accepted that those aspects of English law that failed to accord legal recognition to transsexu­als were incompatible with Arts 8 and 12 of the Convention.^[724] The Interdepartmental Working Group on Transsexual People had been reconvened in the UK with a mandate to examine the implications of granting full legal status to transsexual people. Finally, the New Labour government had expressed a commitment to enact primary legislation allowing transsexuals to marry and a draft outline bill on the issue was due to be published soon after the judgment of the House of Lords.

Moreover, unlike in the Sharma cases and Thompson, the laws that were challenged were self-standing, in the sense that they did not constitute a critical cog in a network of statutory provisions.^[725] Their disapplication, hypothetically speaking, would not have affected the functioning of the statutory regimes in which they operated. Section 377, forming part of the chapter on 'offences affecting the human body⁷,^[726] is independent of the other offences (concerning matters such as rape, assault, and abduction) in that chapter. Similarly, section 11(c) was a discrete ground for the voidness of marriage, autonomous of the others. So the kind of pressures that prompted the Courts in Sharma and Thompson to act as they did (upholding the constitutionality of the legislation in the case of the former, declaring it incompatible in the latter) were not in play: many governments had changed hands, inde­pendent reviews had recommended making modifications to the law so as to comply with fundamental rights, and the legislative provisions that were challenged were easily separable from their parent statutes.

But Naz Foundation and Bellinger were also similar in another impor­tant respect. In both cases, the hypothetical invalidation of the statutory provisions that were challenged would have produced profound col­lateral consequences or 'spillover'^[727] effects. Disapplying section 11(c) of the Matrimonial Causes Act, 1973 would have given rise to a series of effects across the legal system. As Lord Nicholls acknowledged,^[728] changing the qualifications for marriage would have produced legal consequences in many different contexts, including 'housing and residential security of tenure, social security benefits, citizenship and immigration, taxation, pensions, inheritance, life insurance policies, criminal law (bigamy)'.^[729] The House of Lords was not in a position to decide what the precise implications of a hypothetical invalidation of section 11(c) would have been in these manifold contexts. Lord Hope reiterated this concern, stating that 'problems of great complexity would be involved if recognition were to be given to same sex marriages'.^[730] The message that the Court was seeking to send was clear—piecemeal reform of the complex legislative matrix was not viable.^[731]

The collateral consequences that would have resulted had the Indian Supreme Court struck down section 377 of the IPC in Naz Foundation were slightly more complex. Oral hearings for the case concluded in the Supreme Court in March 2012. At that time, section 377 was also the criminal offence that was relied upon to prosecute those who were accused of child sexual assault and sexual assault of women (falling short of rape).^[732] The Supreme Court was quite clearly conscious of the utility of section 377 in such cases. It cited several judgments^[733] reflecting prosecutions for such non-consensual conduct under section 377 and said:

All the aforementioned cases refer to non consensual and markedly coercive situations and the keenness of the court in bringing justice to the victims who were either women or children cannot be discounted while analyzing the manner in which the section has been interpreted. We are apprehensive of whether the Court would rule similarly in a case of proved consensual intercourse between adults.^[734]

Thus, the Court was under the apprehension that striking down section 377 would have implied jettisoning a statutory provision pun­ishing sexual assault of women and children. This apprehension was echoed in a subsequent judgment of the Supreme Court, involving an appeal by the defendant against his conviction for sodomy and murder of a child:^[735]

We have no doubt in our mind that such types of crimes preceded by Pederasty are extremely brutal, grotesque, diabolical and revolting, which shock the moral fiber of the society, especially when the passive agent is a minor. Recently, this Court in [Naz Foundation].. has also refused to strike down Section 377, even if such acts are indulged in by consenting individuals.... Indian society and also the International society abhor pederasty, an unnatural sex, i.e. carnal intercourse between a man and a minor boy or a girl. When the victim is a minor, consent is not a defence, irrespective of the views expressed at certain quarters on consensual sex between adults. (Emphasis added)

But the story gets more complicated than this. Not unusually, the Supreme Court actually delivered its judgment in December 2013, 21 months after the oral hearings in the case concluded.^[736] Two note­worthy events occurred in the intervening period. First, the Union Parliament enacted the Protection of Children from Sexual Offences Act, 2012, which entered into force later that year. The act penalizes a wide range of sexual offences perpetrated against children, including those that would have previously been prosecuted under section 377. Second, following the horrific sexual assault of a young woman in Delhi in December 201 2,^[737] the Union Parliament widened the definition of rape under section 375 of the IPC to encompass the kinds of sexual assault that were previously covered by section 3 77.^[738] Remarkably, the Supreme Court took no notice of these two changes to the criminal law in its judgment.^[739] Later, petitions seeking a review of the Supreme Court's judgment in Naz Foundation on the basis that it had ignored these legislative changes were summarily dismissed without reasons.^[740]

As a matter of fact, therefore, the striking down of section 377 on the date that the Naz Foundation judgment was delivered would not have produced the collateral consequences that it would have on the date that the oral hearings concluded.^[741] However, since this chapter focuses on the influence of specific constitutional remedies on judicial decision-making, what is crucial to sustain the argument made here is not the actual state of the law, but the Court's perception of the state of the law. After all, the Court's decision to uphold rather than strike down section 377 was based on its own understanding of the situation.

Taking a step back, in both Naz Foundation and Bellinger, the inter­pretive route at stage two was contemplated but eventually eschewed. This took the form of two rounds of litigation in Naz Foundation, in which the Delhi High Court read down section 377 but the Supreme Court (incorrectly) considered it impermissible to do so. In Bellinger, the section-3 route was considered and rejected by the House of Lords. The outcome of the two cases turned out to be the same as in the Sharma cases and Thompson: the British court issued a declaration of incompatibility, the Indian court masked its real rights reasoning and upheld the statute. A major reason for which the Indian Supreme Court chose to uphold section 377 is that striking down the provision would have, from the Court's perspective, produced undesirable collateral consequences and left a 'hiatus in the criminal law'.^[742] In other words, the immediacy of the remedy had an asymmetric effect on the Indian Supreme Court's decision.^[743]

In Bellinger, on the other hand, the House of Lords was aware that issuing a declaration of incompatibility would invite Parliament to scrutinize the incompatible statute. Parliament, unlike the Court, would be well placed to consider the collateral consequences that would be produced by changing the law. Thus, a comparison of Naz Foundation and Bellinger shows how the difference in the nature of the power to strike down and the declaration of incompatibility veered the Courts towards different conclusions after they decided that rights-compliant interpretation was not a realistic possibility. The Indian Supreme Court felt compelled to withhold its true rights reasoning, whereas the House of Lords brought its rights reasoning to bear.

If the Indian Supreme Court was empowered to make a formal dec­laration of incompatibility (carrying the same institutional rigour), it might have been tempted to do so in Naz Foundation so as to compel Parliament to deal effectively with the collateral consequences pro­duced by making any changes to section 377. The Court's concluding comment that Parliament was free to amend or delete section 377 provides support for this proposition. Constitutionally speaking, this clarification was wholly unnecessary—to say that Parliament can amend a law which the Supreme Court has declared constitutionally valid is a platitude. What the Court was really seeking to do was to invite parliamentary attention to a situation that it did not consider it could suitably address.

It is worth clarifying that the role played by the power to strike down legislation in Indian courts' decisions to rethink the constitutionality of legislation and put aside their genuine rights reasoning is a matter of degree.^[744] In Sharma II, the fact that the Court was left with no choice but to strike down the statutory provisions played a controlling role in the Indian Supreme Court's decision—the Court clearly had rights- based concerns about the RTIA and the manner in which it was func­tioning, but felt uncomfortable derailing the institutional machinery of the RTIA. In Naz Foundation, however, the power to strike down legisla­tion seemed to play a significant, but not controlling, role in the Indian Supreme Court's ultimate decision. The Court's unsympathetic attitude towards the LGBT community—describing it as a 'miniscule' minor­ity^[745] with 'so-called rights'^[746]—suggests that other ideological reasons may have also played a part in its decision to uphold the colonial-era provision criminalizing homosexuality.

Emergency and Anti-terrorism Legislation: Kartar Singh and Belmarsh Prison Case

The Kartar Singh Case

The third pair of cases reflecting the refusal of Indian courts to articu­late their genuine rights reasoning consists of the Indian Supreme Court's judgment in Kartar Singh v. State of Punjab^[747] and the House of Lords' judgment in the Belmarsh Prison case.^[748] In Kartar Singh, a five-judge bench of the Indian Supreme Court took up over 400 writ petitions, petitions by special leave and criminal appeals,^[749] in which the constitutional validity of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA) and other anti-terrorism legislation^[750] had been challenged. TADA, and its predecessor statute enacted in 1985,^[751] were passed by the Union Parliament in the backdrop of military groups engaging in guerrilla-style conflict in many regions of India, including Punjab, Kashmir, Andhra Pradesh, and parts of the North East.^[752] However, one of the immediate catalysts for TADA was the assassination of Prime Minister Indira Gandhi in 1984 by her Sikh bodyguards.^[753]

In effect, TADA set up a parallel criminal justice process for the speedy trial of those engaging in terrorist activities. It provided for the estab­lishment of special courts to deal with terrorist offences, reversed the burden of proof on defendants in certain cases, altered existing rules of evidence to render confessions to senior police officers admissible, and denied rights of appeal to state High Courts. TADA was not meant to be a permanent fixture in the criminal justice regime, and had a sunset clause of two years (although it was repeatedly extended by Parliament until it finally lapsed in 1995). As one Member of Parliament put it, this radical statute was necessitated by the 'extraordinary times'.^[754] Another put the point even more robustly: 'Punjab is burning. The legend goes that in the rivers of Punjab milk used to flow [sic] but they are now drenched with blood. There is hatred all over.' ^[755]

TADA was subjected to two lines of attack in the Supreme Court: first, that it was not within the confines of federal legislative power, and second, that many of its provisions violated fundamental rights under the Constitution. The Supreme Court rejected the first argument, on the basis that the statute did not deal with 'public order' or 'law and order' (state subjects), but was better classified as dealing with the 'defence of India', a subject reserved for federal legislation. But the Court found it more tricky to negotiate many aspects of the second argument. In a radical departure from the existing criminal justice regime, section 15 provided that confessions made to police officers not lower than the rank of superintendent would be admissible in the trial of offences under the statute. This provision was challenged on the basis that it violated the right to equality (Art. 14) and the right to life (Art. 21) under the Constitution.

Writing for the majority, Pandian, J. was conscious of the history of custodial torture in India, which underpinned the rule of general crimi­nal law that confessions made to police officers were untrustworthy. He stated:^[756]

[W]ith the years of experience both at the Bar and on the Bench [we] have frequently dealt with cases of atrocity and brutality practiced by some overzealous police officers resorting to inhuman, barbaric, archaic and drastic method of treating the suspects in their anxiety to collect evidence by hook or by crook and wrenching a decision in their favour. We remorsefully like to state that on few occasions even custodial deaths caused during interrogation are brought to our notice. We are very much distressed and deeply concerned about the oppressive behavior and the most degrading and despicable practice adopted by some of the police officers even though no general and sweeping condemnation can be made. (Emphasis added)

One might have expected this sense of 'distress' at the 'despicable' practice of police officers to translate into the striking down of sec­tion 15. There was sufficient jurisprudential support for this conclusion, since the Court had, more than one-and-a-half decades earlier, held that the right to life under Art. 21 embodied the constitutional guarantee of substantive due process, meaning that any law circumscribing that right would need to be fair, just, and reasonable.^[757] But in a curious leap of logic, the Court held that in spite of finding it dangerous, 'at the first impression', to allow confessions to be made admissible, it preferred not to strike down the statutory provision.^[758] The reasons offered for this change of heart were the competence of Parliament to enact the statutory provision, the gravity of terrorism that was endangering the integrity of the nation, and the unwillingness of victims and the general public to come forward and give evidence.^[759]

That the majority's rights-based discomfort with section 15 per­sisted is evident from its issuance of supplementary guidelines, with uncertain binding value,^[760] about the recording of confessions. These included that confessions be recorded in the same language in which the person is examined, that the defendant be produced before a magistrate without unreasonable delay, that the police be required to respect the right to silence of the defendant, and that a committee be set up at the central and state levels to review the functioning of the statute.^[761] These guidelines were often ignored, and secured little traction in practice.^[762]

The majority's change of mind on section 15 was not simply a change of heart (or more fittingly, a change of rights reasoning). The decision—which effectively compromised a routine protection against torture^[763]—was heavily influenced by the desire to avoid striking down a statutory provision that was conceived as an essential part of the national security apparatus, and which the government asserted as being crucial in dealing with challenges of the time. Ramaswamy J.'s dissent also indicates that remedial considerations were foremost in the minds of the judges. Like the majority, he acknowledged that it was 'obnoxious' to confer upon police officers the power to record confes­sions,^[764] but took his reasoning to its logical conclusion by deciding that section 15 was unconstitutional. However, his judgment indicated that he would have suspended the striking down of section 15 for a year, so as to enable Parliament to make suitable amendments to the statute.^[765]

The Court adopted a similar approach of putting aside its genuine rights reasoning vis-a-vis section 19 of TADA, which denied the right of appeal to state high courts (instead permitting an appeal as of right directly to the Supreme Court). The Central Government considered this as a crucial aspect of delivering the statute's promise of swift tri­als in cases of terrorism. This provision applied even in cases where a defendant, who was charged for committing offences under TADA and other criminal legislation, was acquitted for the TADA offences but convicted for offences under the ordinary criminal law.

The majority noted a number of problems with this statutory provi­sion. It was a serious access to justice impediment, because it would effectively mean that defendants from remote parts of the country would be unable to file appeals against their conviction.^[766] It also saw no logic in the operation of section 19 in cases where defendants were not convicted of offences under TADA. Pandian J. went as far as to say that the provision denied 'fair play and justice', was 'unreasonable', and compromised the objectives of the criminal justice system.^[767]

Based on the Supreme Court's established substantive due process jurisprudence, this was enough of an indictment of section 19 for it to be struck down. But without explaining its decision any further, the Court pointed out that these 'practical difficulties' would not render the provision constitutionally invalid.^[768] Similar to the judgments in Naz Foundation and Sharma II, it advised Parliament to take note of these difficulties and make suitable amendments to the law.^[769] In his separate opinion, Sahai J. followed the reasoning of the Court, observ­ing that Parliament needed to reconsider section 19 since it resulted in a denial of justice to the large segment of defendants who lacked the wherewithal to appeal to the Supreme Court.^[770]

It is important to understand the Court's 'messaging' in its analysis of these two questions. It did not hold that although sections 15 and 19 violated fundamental rights, it would refuse to strike them down. This would have been clearly impermissible, given that the Court is obliged to strike down a statutory provision that violates rights (and which cannot be given a rights-compliant interpretation, as was the case with sections 15 and 19). The Court's holding, arrived at with 'apparent hes­itation' (as the Supreme Court described it in a later case),^[771] was that although sections 15 and 19 were deeply problematic, they were not inconsistent with fundamental rights and would not be struck down. Hence, when deciding the validity of sections 15 and 19, the Court was influenced by the nature of the remedy to mask its genuine rights reasoning with a form of rights reasoning that enabled it to uphold the provisions.

Overall, the Court read down some of the provisions of TADA, and upheld the constitutional validity of many others. The only statutory provision that was struck down was section 22 (which, in respect of some defendants, attached the same evidentiary value to identifica­tion through photographs as identification through test parades).^[772] This was peculiar, because none of the parties had addressed detailed arguments in respect of section 22. The invalidation of section 22—a provision which was by no means a central plank of the anti-terrorism regime set up by TADA—turned out to be a fig leaf for the majority's reluctance to strike down other provisions (such as sections 15 and 19) that posed far greater challenges to the protection of constitutional rights.

The Belmarsh Prison Case

Compare Kartar Singh with the Belmarsh Prison case, which is amongst the most widely known judgments under the HRA. Several foreign nationals filed appeals to the House of Lords against their detention under Part 4 of the Anti-Terrorism, Crime and Security Act, 2001 (ATCSA). Part 4 was enacted in a similar national security context as TADA. The government considered it a crucial response to the ter­rorist attacks in New York and Washington on 11 September 2001, following which the UK, like many other western democracies, faced terrorist threats on a large scale. This is evident from the following statement made by the New Labour government's home secretary in Parliament:^[773]

Let us recall for a moment not just what happened on 11 September, but what has happened since. Let us recall the interviews given and the video recordings made by bin Laden and the al-Qaeda group, which have spelt out their determination not simply to threaten once, but to threaten the civilian populations of the United States and those working with it. It is for that reason that we are proposing measures allowing us to take ratio­nal, reasonable and proportionate steps to deal with an internal threat and an external, organised terrorist group that could threaten at any time not just our population, but the populations of other friendly countries.

Part 4 enabled the home secretary to detain indefinitely, on reason­able suspicion and without charge or trial, foreign terrorist suspects who could not be deported by virtue of the UK's obligations under the Convention.^[774] These detention provisions were intended to be temporary, and expressly derogated from the rights set out in Art. 5 of the Convention.^[775]

One of the key questions before the House of Lords was whether the detention provisions unfairly discriminated between nationals and non-nationals. The government sought, and to some extent was granted, a high degree of judicial deference on whether there was an emergency threatening the life of the nation and what the proportionate steps for dealing with that emergency would be.^[776] However, the judges con­sidered the distinction between nationals and non-nationals plainly discriminatory.^[777]3 Lord Bingham noted that the threat to national secu­rity did not emanate solely from foreign nationals, or for that matter, foreign nationals who could not be deported.^[778] Lord Nicholls made a similar point, holding that although British citizens also posed a threat to national security, the government did not find it necessary to impose a draconian detention regime to curb that threat.^[779] The majority there­fore chose to declare section 23 of the ATCSA incompatible with the Convention.

The judges were careful to clarify that their declaration would not be binding on Parliament. Lord Bingham asserted that the declaration of incompatibility would not 'override the sovereign legislative author­ity of the Queen in Parliament', since the HRA provided that the only immediate remedy (under section 10) lay with the relevant minister, who was accountable to Parliament.^[780] Lord Scott was at pains to make the point even clearer, observing that the declaration would 'not in the least' affect the validity of section 23 under domestic law, and that its import was political rather than legal.^[781] Baroness Hale also noted that the declaration of incompatibility would not invalidate section 23 or any executive action taken in pursuance of it.^[782]

It is worthwhile analysing the precise purpose of these observations from the Bench. They were not, as it may appear at first glance, merely bland clarifications of the remedial scheme set up by the (relatively) newly enacted HRA—15 declarations of incompatibility had already been made before the Belmarsh Prison case, nine of which survived appeal. The judges were making a more subtle point—that, at least formally speaking, in the sensitive area of national security, the declara­tion of incompatibility enabled the courts to specify their provisional understanding of rights subject to Parliament's putatively final and authoritative understanding of rights.

The Influence of the Remedy

The highest courts in India and the UK were both inclined to hold that provisions of anti-terrorism legislation were inconsistent with human rights. Similar legislation was at issue before both courts—temporary, 'problem-solving'^[783] statutory measures that were intended to deal with the exigencies of the time and established a parallel criminal justice system for terrorism-related offences. Both Courts quickly acknowl­edged that a rights-compliant reading of the statutory provisions was not possible. But the nature of the remedy available prompted differ­ent outcomes. At the cusp of stages two and three, the Indian Supreme Court refused to strike down provisions of the TADA, preferring to hold back its genuine understanding of the rights implications of the statute in order to avoid striking down its key provisions. The House of Lords, on the other hand, made a declaration of incompatibility, with each of the judges on the majority emphasizing that its declaration, unlike a power to strike down legislation, did not hamper Parliament's author­ity to decide whether to amend the law.

Some scholars attribute the contrasting outcomes in Kartar Singh and the Belmarsh Prison case to differences in standards of judicial review.^[784] The Indian Supreme Court adopted the relatively light­touch standard of reasonableness review, requiring the government to justify that its legislation was within a range of reasonable alterna­tives, whereas the House of Lords applied a full-scale proportionality analysis, charging the government with justifying the precise balance struck by the legislature. But explaining away these decisions based on standards of review obscures the processes of rights reasoning that took place in both courts. The Indian Supreme Court's inclination to strike down sections 15 and 19 of TADA was based on the very same reasonableness standard of review that is mistakenly relied upon to justify the differences between the two cases. A genuine application of rights reasoning by the Court would have prompted the invalidation of sections 15 and 19, even on the reasonableness standard of review. The different outcomes of the two cases are, therefore, better explained by the nature of the remedies available to both courts.

Another point about these two cases is worth noting. One of the most common criticisms of the declaration of incompatibility is that it guarantees no remedy to individual litigants, in spite of an acknowl­edgement that their rights have, in the court's view, been violated. The detainees in the Belmarsh Prison case were not released for a long time, and immediately following their release, were subjected to 'control orders' under the Prevention of Terrorism Act, 2005.^[785] But the reme­dial counterfactual in the Kartar Singh case was equally unsatisfactory, because the terrorist suspects secured no benefit from the Supreme Court's reluctant upholding of the provisions of TADA. However, unlike in Belmarsh Prison case, this was also accompanied by the court disguising its genuine understanding of rights in order to avoid invok­ing the power to strike down legislation.