Chapters 2 and 3 sought to establish the negative claim made by this book.
The argument that the new Commonwealth model of constiÂtutionalism is superior to the old model of judicial supremacy because it facilitates relatively easy and swift political responses to judicial review has turned out to be a misconception in reference to India and the UK.
Constitutional practice has shown that political responses are equally difficult in both jurisdictions and the evidence reflects that judicial supremacy in India actually allows for swifter political responses than the new model in Britain. This chapter, along with Chapter 5, will shift focus to the positive claim: that the remedial scheme established by the new Commonwealth model enables courts in the UK to assert their true understanding of rights more freely than Indian courts.The chapter begins by arguing that courts in India and the UK adopt a similar three-stage approach in reviewing legislation for compliance with substantive constitutional rights or rights under the Convention. They first examine whether the legislation is compliant with rights, based on ordinary methods of interpretation. If not, then they determine whether the legislation can be upheld based on special interpretive techniques. In the UK, these techniques are specifically sanctioned by section 3 of the HRA, which requires courts to give effect to legislation in a manner compliant with Convention rights, 'so far as it is possible' to do so. In India, these special interpretive techniques have no specific textual grounding and have developed through case law. Finally, if legislation cannot be protected in this way, Indian courts
Balanced Constitutionalism: Courts and Legislatures in India and the United Kingdom. Chintan Chandrachud.
© Oxford University Press 2017. Published 2017 by Oxford University Press. strike it down and courts in the UK may choose to issue a declaration of incompatibility under section 4 of the HRA.
In the context of this three-stage process of review, Indian courts have a smaller range of interpretive tools at their disposal than courts in the UK to interpret primary legislation in a manner compliant with human rights. Since Indian courts have a smaller interpretive toolbox, one would imagine that ceteris paribus, Indian courts' power to strike down legislation would be triggered earlier than the power to issue a declaration of incompatibility arises in the UK. Conversely, this propoÂsition should also imply that in similar cases, declarations of incompatÂibility in the UK should correspond with exercises of the power to strike down legislation in India.
Case law, however, seems to narrate a different story. Faced with legislation that cannot be read compatibly with rights, Indian courts sometimes rethink their initial view that a statute is unconstitutional before choosing to strike it down, in situations in which British courts would make a declaration of incompatibility. Indian courts, therefore, make their decisions about the rights implications of statutes in the shadow of the power to strike down legislation, withholding their genuine understanding of rights from time to time.
This chapter relies upon three pairs of examples, consisting of one case each from India and the UK, as evidence of this claim. There are many cases reflecting the withholding of true rights reasoning by Indian courts, and equally, the expression of genuine rights reasoning by British courts. However, the six cases discussed in this chapter have been selected and compared based on the existence of analogous fea- tures—although they may not be immediately apparent—which, in the case of Indian courts, influenced the judges to not express their genuine understanding of rights and strike down the statutory provisions that formed the subject of judicial review.
The first pair of cases involved judicial review of recently enacted legislation with a strong democratic mandate—the Indian Supreme Court's judgments in the Sharma cases.[581] These cases, reviewing India's law governing access to information, are compared with the UK Supreme Court's judgment in Thompson[582] (which concerned the law on sexual offences in the UK).
The second pair of cases involved judicial review of legislation whose (potential) invalidation would have produced serious collateral consequences in other areas of the law—the Indian Supreme Court's controversial decision effectively re-criminalizing homosexuality in Naz Foundation[583] is compared with the UK House of Lords' judgment in Bellinger,[584] on the rights of transÂsexuals to marry. The third pair of cases, dealing with emergency anti-terrorism legislation, consists of the Indian Supreme Court's judgment in Kartar Singh[585] and the House of Lords' judgment in the Belmarsh Prison case.[586]These examples demonstrate that Indian courts' decision-making process takes place in the shadow of the power to strike down legÂislation. The robust nature of the power (compared with the softer power to make a declaration of incompatibility) sometimes influÂences Indian courts not to exercise it, but to think again about the constitutional validity of statutes under review. In this way, the nature of the remedy under the old model of judicial review sometimes preÂvents courts from expressing their genuine understanding of rights in order to avoid having to invoke the power to strike down legislation. How do we know that the Indian courts in these cases withheld their genuine understanding of rights? In each of them, there is an obviÂous disjunction between the proclivities of the court and its ultimate decision. This disjunction, it will be argued, is a consequence of the reluctance to invoke the power to strike down legislation, which would have entailed the court taking its genuine rights reasoning the full way.
The final section of this chapter argues that textual and institutional constraints indicate that the Indian Supreme Court would be unwilling to exercise remedial discretion to issue 'intermediate remedies' seen frequently in many other jurisdictions, such as suspended declarations of invalidity or informal declarations of incompatibility, in cases such as Sharma, Naz Foundation, and Kartar Singh.