Constitutional Convention of Compliance
The question of whether the ability to reject declarations of incompatÂibility or judgments striking down legislation has atrophied or has been effectively neutralized through constitutional convention arises in both jurisdictions.
In the UK, this claim, which Chapter 2 examined, is based on the fact that no declaration of incompatibility has been rejected outright in the years since the HRA came into effect. The chapter cauÂtioned against concluding that a constitutional convention against the power to reject declarations of incompatibility has developed, based on two reasons. First, the declaration of incompatibility is subtly different from many other constitutional remedies in that it places the burden of inertia on the person seeking to remove the incompatibility. Second, evaluating the atrophy of power is more complex in a system where the burden of inertia is not on Parliament or the government. Thus, a much larger timeframe is required in order to establish that the power to reject a declaration of incompatibility has atrophied.In India, the atrophy analysis may be premised on the basis that the last fundamental rights amendment and Ninth Schedule amendment entered into force in 1972[522] and 1990[523]3 respectively.[524] Does the nonÂuse of these powers for over two decades imply that they have been rendered extinct by constitutional convention? It would be misconÂceived to arrive at this conclusion. In 2007, Sabharwal C.J., speaking for a unanimous Supreme Court in Coelho, was awake to the possibility of the Ninth Schedule being employed as a response mechanism to nullify judgments striking down legislation.[525]
There is a complex set of reasons for which fundamental rights amendments and Ninth Schedule amendments have not been employed by Parliament in recent years. These include the following: First, a large amount of controversial government policy has been implemented through delegated legislation.
[526] This has sometimes resulted in judgments striking down such delegated legislation and subsequent constitutional amendments to nullify the effects of these judgments.27 Hence, politiÂcal responses have continued, but to some extent, the battleground has shifted away from primary legislation to delegated legislation.Second, the Congress party enjoyed large parliamentary majorities in the first few decades after independence. However, no single political party was able to secure a simple majority in the Lok Sabha between 1989 and 2014, necessitating rule by coalition governments composed of a number of political parties.28 In many cases, more than eight political parties have formed part of a ruling coalition government.29 This has made mobilizing the two-thirds majority required to pass fundamental rights amendments and Ninth Schedule amendments politically difficult (but not impossible, since other constitutional amendments have been enacted between 1989 and 2014).30 Responses to judgments striking down legislation for violating fundamental rights through these mechanisms could see some resurgence with the ascenÂdancy of a single party in Parliament,31 as was the case with Bharatiya
27 See, for example, the Constitution (Eighty-fifth Amendment) Act, 2001 (which nullified the effects of Union of India v. Virpal Singh Chauhan, AIR 1996 SC 448 and Ajit Singh v. State of Punjab, AIR 1996 SC 1189). The Constitution (Seventy-sixth Amendment) Act, 1994, the Constitution (Seventy-seventh Amendment) Act, 1995, the Constitution (Eighty-first Amendment) Act, 2000 and the Constitution (Eighty-second Amendment) Act, 2000 nullified some of the effects of Indra Sawhney v. Union of India, AIR 1993 SC 477.
28 Since the Lok Sabha follows the 'first past the post' electoral system, an absolute majority of seats in the house does not necessarily translate into a majority of the total number of votes cast.
29 The United Front government under H.D. Deve Gowda (1996-7), the United Front government under I.K. Gujral (1997), and the National Democratic Alliance government under A.B. Vajpayee (1999-2004) are examples.
30 The last addition to the Ninth Schedule (speaking generally, and not referring to 'Ninth Schedule amendments' as a term of art that is used in this book) was in 1995. Since then, political parties have threatened or lobbied to use the Ninth Schedule from time to time. See, for example, M.R. Venkatesh, 'DMK Manifesto Wants Quota Laws Protected' Hindustan Times (Chennai, 3 April 2009); Special Correspondent, 'BJP Promises Reservation to Gujjars and Seven Other Tribes' The Hindu (Jaipur, 21 November 2013).
31 Pratap Bhanu Mehta, 'India's Judiciary: The Promise of Uncertainty' in Pran Chopra (ed.), The Supreme Court Versus the Constitution: A Challenge to Federalism (SAGE Publications 2006) 155, p. 163.
Janata Party, led by Narendra Modi (who became the prime minister), in the general election of 2014.
Third, the increase in the Supreme Court's perceived institutional legitimacy has made it more difficult for governments to justify nullifyÂing courts' decisions. As Baxi famously put it, by relaxing rules of standÂing and opening its doors to the destitute and oppressed, the Supreme Court began to transform itself from the 'Supreme Court of India' to the 'Supreme Court for Indians' in the 1980s.[527] Almost simultaneously, Parliament's reputation saw a general decline.[528] Fourth, recent years have seen an increase in plenary bottlenecks due to obstructionism in Parliament.[529] This has resulted in an overall decrease in Parliament's plenary time and legislative output,[530] giving it a smaller window of opportunity to consider matters beyond its most pressing business.
Thus, the argument that the power to reject strike-downs in India or declarations of incompatibility in the UK has atrophied is unfounded in both jurisdictions. Responding to such judgments in India and the UK remains a political option, albeit one which is very difficult to exercise.