Conclusion

Perhaps it is best to begin by reiterating the question that this book sought to answer: which model of judicial review, between those of India (the old model) and the UK (the new model), enables both legislatures and courts to assert their genuine understanding of rights more freely? This question was divided into two sub-questions:

1.

2. Which courts can assert their genuine understanding of rights more freely?

The explanation emanating from a large part of the existing scholar- ship—that the Westminster Parliament would be able to assert its genu­ine understanding of rights by rejecting declarations of incompatibility more easily than a legislature seeking to reject exercises of the power to strike down legislation—was debunked in Chapters 2 and 3.

The decisional space and remedial space for responding to judg­ments striking down legislation and declarations of incompatibility in India and the UK respectively is remarkably similar. Political practice has shown that openly rejecting judgments striking down legislation or declarations of incompatibility is a difficult option that demands consid­erable political traction and requires the government in power to over­come significant hurdles. These include the pressure of public opinion and the possibility of an adverse ruling from the Strasbourg Court in the UK, and the assent of parliamentary supermajorities in India. Thus, the most common political response in both jurisdictions is to comply with the court's judgment, by giving effect to a declaration of incompatibility through legislation or a remedial order (in the UK), or allowing the

Balanced Constitutionalism: Courts and Legislatures in India and the United Kingdom. Chintan Chandrachud.

© Oxford University Press 2017. Published 2017 by Oxford University Press.

However, as explained in Chapters 4 and 5, the superiority of the UK's model of rights protection lies elsewhere—in the ability of British courts to express their genuine understanding of rights by making declarations of incompatibility in situations in which Indian courts are reluctant to do so, on account of the remedies available to them. Indian courts have demonstrated reluctance to exercise the power to strike down legisla­tion when to do so would involve blackballing recent legislation with a strong democratic mandate, produce serious collateral consequences for other legislation, or stifle emergency national security legislation. Since the 'power' to strike down legislation actually transforms into a duty when legislation is found unconstitutional, this has also prompted Indian courts not to find rights-violating legislation unconstitutional in the first place. British courts have made declarations of incompatibility in analogous situations, in the knowledge that under section 4 of the HRA, the right is decoupled from the remedy, if only formally.

The fact that the declaration of incompatibility is a discretionary, as opposed to a mandatory, remedy has a far more significant impact on the question of 'balanced constitutionalism' than we might have ini­tially imagined. Under the HRA, when judges are uncomfortable issuing a declaration, they can avoid doing so without compromising on their rights reasoning. In contrast, judges under the Indian Constitution con­front the more difficult choice of either articulating their genuine rights reasoning and reluctantly striking down legislation, or masking their genuine rights reasoning and upholding it.

Thus, if we think back to the tables set out in Chapter 1, the appro­priate explanation for the superiority of the UK's model of rights protection comes from the following table, which shows that the UK wins on sub-question 2, and there is no winner on sub-question 1. Therefore, the UK wins on the general question.

New models of judicial review risk facing what has been identi­fied earlier in the book as the internal stability problem in the way in which they operate in practice. In other words, they either slide in the direction of parliamentary sovereignty or judicial supremacy, depend­ing on how declarations of incompatibility play out in the political arena. Thus far, the declaration of incompatibility has not fallen fully on one side or another, although the practice of positively addressing declarations of incompatibility suggests that it has moved towards the judicial supremacy end of the spectrum. That the outright rejection of declarations of incompatibility remains possible (albeit difficult) reflects that the HRA has not fallen squarely on the side of judicial supremacy. Interestingly, the same can be said of the Indian scenario. Although constitutional design suggests that it is a case of full-scale judicial supremacy, the possibility of rejecting judgments striking down legislation indicates that it is not as far down on the judicial supremacy side of the spectrum as one might imagine at first glance.

The external stability problem—or the fact that new models of judicial review are embodied in un-entrenched statutes that may be repealed by transient majorities—has played out much more visibly in the case of the HRA. The Conservative Party has consistently prom­ised to repeal the HRA over the years. When it entered into coalition government with the Liberal Democratic Party (which takes a pro-HRA view) in 2010, the compromise between both sides was to establish a Commission that would examine whether to replace the HRA with a home-grown bill of rights, while building upon the UK's obligations under the Convention.^[1074] The majority of the Commission's members concluded that there was a strong argument in favour of a domestic bill of rights that would replace the HRA.^{[1075] [1076] The Conservative Party similarly included the repeal of the HRA in its manifesto for the general elec­tions of 2015,3 in which it secured a narrow majority in the House of Commons.[1077]}

The future of the HRA hangs in the balance, and is contingent on the political appetite of the Conservative government. The effects of the repeal of the HRA (and its replacement with a British bill of rights) will depend on the precise terms of that bill of rights—a matter that has remained nebulous in political discourse.^[1078] But beyond the binary options of repealing or retaining the HRA lie a range of possibilities, including amending one or more of its provisions. Each of these pos­sibilities could have a bearing upon the protection of rights through the balanced allocation of powers between the legislature and courts in the UK.

There are some indications that the Conservative government may seek to limit British courts' interpretive powers by introducing amend­ments to section 3 of the HRA.^[1079] Toning down the language of section 3 may result in a corresponding increase in the number of declarations of incompatibility. This could impact upon the culture of compliance (or at any rate, the pace of compliance) with such declarations. Given the small number of declarations of incompatibility made thus far, it will be interesting to see how the institutional systems in place—par- ticularly the JCHR—will cope with a rise in the number of declarations. However, it is also possible that if the catchment area of section 3 were reduced, British courts would respond by refusing to make declarations of incompatibility in many cases that would previously have been dealt with under section 3, in order to control the number of declarations of incompatibility and preserve their authoritative value.

Thus, at least in the way that it has played out under the HRA, exter­nal instability is the price that the new model pays for ensuring a more balanced allocation of powers between the legislature and courts than models of judicial supremacy.

However, it is fairly clear from the political discourse that the ire against the HRA stems primarily from European influences on decision­making under the HRA, rather than from the decisions of British courts per se. This is well demonstrated through the following statement made by a peer in the House of Lords, who was commenting on the difference between the judgment in R (Thompson) v. Secretary of State^[1080] (in which the UK Supreme Court declared unreviewable notification requirements under the Sexual Offences Act, 2003 to be incompatible with Convention rights) and the judgments from Strasbourg on the prisoner voting rights issue:^[1081]

I have already said that every court in this land found in the same way as the UK Supreme Court with regard to the sex offenders register. On prisoner voting rights, every UK court that [initially] heard the claim that prisoners should have the right to vote rejected it. The only court that has found in favour of prisoners being given the right to vote is the European Court of Human Rights. There is a distinct difference and we are respond­ing to the UK Supreme Court at this time.' (Emphasis added).

As Chapter 5 demonstrated, British courts have responded by outlin­ing the limits of the 'mirror principle' under section 2(1). There has also been a resurgence in British courts' reliance on common law principles in recent cases under the HRA.^[1082] This has had a twofold effect: first, suggesting that Convention rights are not uniquely European (thereby strengthening their legitimacy in the domestic context) and second, indicating that the courts are establishing a safety valve in the event that the HRA is repealed.

The Indian context offers a good counterpoint. Judicial review under the Indian Constitution is now deeply entrenched, both legally and as a political fact. But history also warns us against being carried away by the effects of formal entrenchment. Judicial review under the Indian Constitution came under severe pressure during the Indira Gandhi- led Congress government of the 1970s. Through the judgment in Kesavananda Bharati v. S tate of Kerala,^[1083] and other decisions that are well documented elsewhere,^[1084] the Indian Supreme Court managed to sal­vage judicial review through that phase. This shows us that along with formal entrenchment, the entrenchment of bills of rights in practice depends upon political developments.

In both jurisdictions, the external stability problem has been linked to the identity and custodianship of the Constitution/bill of rights. In the early decades following the Indian Constitution's enactment, the Congress government considered itself as having a special claim over the Constitution's meaning—a spill over of the Congress party-dominated independence movement. These notions have withered away with the increase in the legitimacy of the Supreme Court in particular, and the Constitution more generally. In the UK, the Conservative Party often pejoratively describes the HRA as 'Labour's HRA',^[1085] suggesting similarly that custodianship of the statute has not yet traversed across party political lines. It may be that if the HRA survives these early challenges, it will gradually come to acquire legitimacy and cross-party political support. Nevertheless, it is hard to put out of one's mind the fact that the HRA can be amended or repealed with the assent of just 326 of the 650 members of the House of Commons, whereas amending the provisions of the Indian Constitution requires the assent of 363 of 545 members of the Lok Sabha.^[1086]

The next point to be made is that constitutional design is not deter­minative of how Constitutions or bills of rights will operate in prac- tice.^[1087] At the time the HRA was enacted, scholars expected declarations of incompatibility to be non-binding exhortations that the Westminster Parliament could reject if it wished to do so. Similarly, Indian courts might have been expected to have the 'last word' on rights questions, given that they were invested with the power to strike down rights- offending legislation. Practice has defied expectations, and has shown that much depends on the politics of judicial review in both jurisdictions.

In India, the single-party dominance of the Congress made it easier to respond to judgments striking down legislation until the 19 80s. Constitutional practice may also change, as was the case after the 1980s, when the rise of coalition governments and the simultaneous increase in the legitimacy of the courts rendered it difficult to respond to judgments striking down legislation. In the UK, the public pressure following a declaration of incompatibility as well as the looming spec­tre of the Strasbourg Court has made open defiance of declarations of incompatibility a genuinely difficult choice to exercise. The point about constitutional design also has a converse implication—as explained earlier with reference to possible amendments to sections 2 and 3 of the HRA, changes in constitutional design may not necessarily produce changes in constitutional practice that one may hope for or expect.

Overall, the position in both jurisdictions seems to be that mere disagreement with a declaration of incompatibility or a judgment strik­ing down legislation is not enough to enable outright rejection by the legislature. A level of serious disagreement that is sufficient to mobilize considerable political support is closer to what is warranted. This is demonstrated by the Indian Parliament's responses to judgments strik­ing down land reform legislation until the 1970s, given that it was a major political plank of the government of the day. The prisoner vot­ing rights issue could turn out to be the analogous example from the UK—although it is easy to think of other, more obvious cases of when outright rejection is likely.^[1088]

However, we should also be cautious about describing the declara­tion of incompatibility as a de facto power to strike down legislation. To the extent that declarations of incompatibility are positively addressed

in almost all cases, they seem to resemble a power to strike down leg­islation in their effects. But we cannot escape the fact that declarations of incompatibility have no immediate impact on legal rights, leaving a (sometimes considerable) time lag between the recognition of the right and the award of the remedy. This difference matters. As the experience from India shows, remedies do not necessarily work in a linear way. Courts are strategic actors, and the availability—or absence—of a certain remedy may influence their decisions. Linked to this is the fact that it is probably unreliable to place models of judicial review (like Canada's) that give courts a power to strike down legislation and the legislature a 'notwithstanding' clause in the same category as the HRA.¹⁶ These mod­els allocate burdens of inertia differently, and require the legislature to put its institutional weight behind the rejection of judgments striking down legislation.

Finally, this book suggests that the strength of constitutional rem­edies rides heavily upon the institutional apparatus accompanying it. Studying only the nature of the remedy and the amendment rule in a constitutional system provides for an under-inclusive analysis. This is best demonstrated by the work done by the JCHR and the Strasbourg Court vis-a-vis declarations of incompatibility in the UK. As explained in Chapter 5, the JCHR ensures that ignoring such declarations is not a realistic option, whereas the Strasbourg Court ensures that compliance is the norm. Intermediate remedies in India falling short of the power to strike down legislation do not have a comparable institutional appa­ratus, making it difficult for courts to invoke them (and indeed, leaning courts towards upholding rights-violating statutes on occasion). The NHRC has not enjoyed the same success as the JCHR and the Strasbourg Court in prompting Parliament to take notice of judicial recommenda­tions, and amend legislation that is inconsistent with rights. This also suggests that merely transplanting the formal remedy (the declaration of incompatibility) into India may not change the way in which judi­cial review functions in practice, or ensure a more balanced allocation of decision-making about rights between courts and the legislature. We must be conscious that the remedy, without the corresponding institu­tional apparatus and the political culture underlying it, could have an altogether different currency.

¹⁶ Sujit Choudhry, The Commonwealth Constitutional Model or Models?' (2013) 11 International Journal of Constitutional Law 1094.