Comparing Decisional Space in India and the UK
What is the difference between the capacity of the UK Parliament and government to reject declarations of incompatibility compared with that of the Indian Parliament and government to reject the judgments striking down legislation? At the outset, it is worth flagging the distincÂtion between the design of the HRA and the Indian Constitution.
The former, as explained in Chapter 2, places the burden of inertia on the person seeking to remove the incompatibility. In other words, a declaÂration of incompatibility does not automatically result in a change of the law—it still requires remedial action (in the form of an executive remeÂdial order or legislative change) in order for the application of the law to be affected in any way. As long as Parliament and the government choose not to act, the expectation is that the law will continue to be enforced as it was before the declaration of incompatibility was made. In India, the burden of inertia is on Parliament and the government, since a judgment striking down legislation automatically results in dis- application and non-enforcement of the law.[501] The political capital in the form of a two-thirds majority in Parliament needs to be assembled before fundamental rights amendments or Ninth Schedule amendÂments can be made in order to nullify an Indian court's judgment.The decisional space available in the UK is less than that assumed in the existing literature. This is for a number of reasons. First, governÂments' record of consistently addressing declarations of incompatibility is not simply about 'inductive reliance on a given pattern of behaviour';[502] it is often the result of calculated attempts by the courts to issue such declarations in conditions favourable to change. In many cases, courts make declarations of incompatibility knowing that there is either an intention to amend the law in any event, or a strong likelihood that the law will be amended if the declaration of incompatibility is made.
This often makes the question of 'decisional space' hollow, since neither Parliament nor the government harbours a desire to reject the declaraÂtion of incompatibility in the first place. Further, the failure to address a declaration of incompatibility (even when Parliament wishes to reject it) is likely to result in an adverse ruling from the Strasbourg Court, placing the government in breach of its international obligations. Finally, soft suggestions made by courts indicating that only minimal change is required in order to address the incompatibility influence the decisional space available to Parliament and the government.Conversely, the decisional space available to the Indian Parliament and government when primary legislation is struck down for violating fundamental rights is wider than that which is ascribed to them in the existing scholarship. Parliament has two principal methods of repudiÂating judgments striking down legislation: fundamental rights amendÂments and Ninth Schedule amendments. Whether the judgments in the Basic Structure case[503] and Coelho[504] have circumscribed these response mechanisms to such an extent that they are rendered non-exercisable or virtually non-exercisable has remained a controversial question. It was argued earlier, based on an analysis of these two judgments as well as other decisions of the Indian Supreme Court, that Parliament still retains some amount of space to respond to judgments through these two response mechanisms.
While the Westminster Parliament and government have less space for response than that often assumed, its Indian counterparts have greater space for response than that attributed by scholars after the judgÂments in the Basic Structure case and Coelho. The decisional space for responding to judgments in both jurisdictions cannot be described with surgical precision. However, it can at least be said that the decisional space available in India and the UK is comparable, and provides for a much closer similarity than a bare juxtaposition of the scholarship in both jurisdictions seems to suggest.
As we will see later, what becomes lucid from an analysis of the practice in both jurisdictions is that in India as well as in the UK, pronounced disagreement by some (or even a majority of) political representatives with a judgment striking down legislation or making a declaration of incompatibility has not proven sufficient to reject the judgment. The political fallout of the judgment in the Belmarsh Prison case[505] (declaring a part of UK's erstwhile anti-terÂrorism law[506] incompatible with Convention rights), which was initially opposed by sections of the government and Parliament but eventually led to a repeal of the law and its replacement by a fresh anti-terrorism regime,[507] exemplifies this.[508]In India and the UK, extraordinary impetus is required in order to reject judgments striking down legislation and declarations of incompatibility respectively. Of course, the hurdles that this impetus needs to overcome in both jurisdictions are distinct. In the UK, these hurdles include the public and political pressure when a declaration of incompatibility is made and the risk of a finding from the Strasbourg Court that the government is in breach of its international obligations. In India, the most significant hurdle is the fact that these response mechanisms need to be invoked through a two-thirds majority vote in Parliament. Unless the ruling government has a particularly strong parliamentary mandate, this would necessitate considerable support cutting across political party lines. The other hurdle that governments in India would be tasked with overcoming is the pressure of public opinion, particularly given the surge in the institutional legitimacy of the Supreme Court and high courts since the early 1980s.
However, these arguments should not be taken so far as to say that Parliament and the government in India and the UK have virtually no decisional space. It is not inconceivable to think of situations where Parliaments in both jurisdictions gather the impetus to reject a judgment holding that primary legislation, which is a political 'hot potato' or high on the political agenda, is incompatible/unconstitutional.
There is ample evidence in support of this claim with regard to property rights cases in India. Since agrarian reform was a cornerstone of the political agenda after independence, several judgments striking down land redistribution legislation on fundamental rights grounds were nullified through fundaÂmental rights amendments and Ninth Schedule amendments.In the UK, the developments surrounding the declaration of incomÂpatibility issued in Smith v. Scott[509] concerning the restrictions on prisonÂers' right to vote provides a good example of the prospect of rejecting declarations of incompatibility. The draft bill[510] introduced by the govÂernment for pre-legislative scrutiny contemplates, as one of its options, rejecting the declaration outright. It remains to be seen whether and how the government chooses to address the incompatibility. But the side on which the scales eventually tip will not affect the argument made here. Even if the Westminster Parliament chooses to address the incompatibility, the aftermath of the case would demonstrate that the impetus for rejecting the declaration, although considerable, was not eventually sufficient to overcome the considerable difficulties faced by Parliament and the government confronting the declaration.