Criteria for Evaluating Models of Rights Protection

The new model of judicial review is based on the premise that people may reasonably disagree about the correct answers to questions con­cerning rights. Very often, in disputed questions about rights, people will agree about the specific rights that are at play in a particular case.

Let us consider a few examples from the two jurisdictions that this book focuses on. When the constitution guarantees a general right to life and personal liberty, does that include patients' right to die through the withdrawal of life support when they are in a permanent vegetative state?^[177] There are many reasonable answers to this ques­tion—for example, that withdrawal of life support should only be permitted if there is a 'living will', or that it should also be permitted when responsible medical opinion considers it as being in the best interests of the patient.

The new model brings to bear different perspectives of the courts and legislature on such questions.^[180] If courts arrive at a reasonable answer with which the legislature disagrees, then the legislature should be able to assert its alternative reasonable interpretation of the rights question in place of that of the courts. Different possibilities under the new model—for example, rejection or ignorance of a declaration of incompatibility in the UK or the invocation of the 'notwithstanding' power in Canada—are intended to function as a legislative safety valve against judicial interpretation of rights.^[181]

The normative framework that is developed hereafter, and the arguments made in this book more generally, rests on two premises (which are also set up as assumptions in Waldron's classic article on judicial review),^[182] both of which are required if the new model's claim (manifested through the UK) to a more balanced allocation of power between the legislature and courts is to be meaningfully tested against the Indian system of judicial supremacy. The first premise is that demo­cratic institutions are in 'reasonably good working order', and include a representative legislature elected on the basis of universal adult suf­frage.^[183] The second premise is that the courts, established on a non­representative basis, are also in reasonably good working order.^[184] For, if the legislatures or the courts of either jurisdiction are not in working order, then it may be necessary for the views of one institution to pre­dominate over those of the other on rights-based questions.

Both these premises prevail in the jurisdictions under discussion— India and the UK. But it may be worth considering possible challenges to these premises before moving to the normative framework set up by this chapter. In the context of the UK, it is difficult to dispute that the Westminster Parliament and the courts are, despite their imperfec­tions, in reasonably good working order. Perhaps the argument worth addressing is that the House of Lords is not a genuinely representative institution, since a majority of its members are appointed.^[185] This argu­ment however fails to carry through, because the House of Commons is an elected body whose representatives are chosen based on universal adult suffrage. Moreover, there is a heavy imbalance of power in favour of the House of Commons over the House of Lords. This imbalance stems from the Commons' veto power over legislation, its ability to rely on the Parliament Acts of 1911 and 1949 to enact legislation without the approval of the House of Lords, and the procedure for enacting money bills.

In the case of India, the challenge is slightly more compelling. Commentators have often argued that India's Parliament, and many of its state legislatures, are in a state of disarray.^[186] Obstructionism in the Parliament has led to significant plenary bottlenecks and legislative paralysis.^[187] Reports on the functioning of the 2009-14 Lok Sabha indi­cate that frequent disruptions resulted in its working for only 61 per cent of the scheduled time (its worst performance in over 50 years).^[188] The corresponding figure for the Rajya Sabha for the same period was only marginally better, at 66 per cent.^[189] 'Criminalization of politics', a phrase which is commonly used in India, reflects, amongst other things, the fact that a fair proportion of parliamentarians face criminal charges (some of them as serious as murder and rape).^[190]

Serious as these matters are, they do not reflect the existence of a pathological condition that has denied the legislature from performing its essential representative function.

As explained earlier, the hallmark of the new model of constitu­tionalism is that it provides for a more balanced allocation of powers between the legislature and courts on questions of rights. This balanced allocation of powers is considered a virtue, given that disagreements about the implications of rights often entail disagreements between two or more reasonable positions (or reasonable articulations of the effect of the right in question). In order to answer the question about which model (between the new model in the UK and judicial supremacy in India) provides for a more balanced allocation of powers, two sub-questions need to be asked. These are: (a) which legislatures, post-judicial review, are able to assert their genuine understanding of rights more freely? (b) which courts, through judicial review, are able to assert their genuine understanding of rights more freely? The first sub­question involves legislatures asserting their understanding of rights at the stage following judicial review of the statute (after the court has expressed its own view on the issue).

Thus, the principal question and the two sub-questions that form the framework within which arguments are made in this book are as follows:

(General) question: Which model of rights protection provides for a more balanced allocation of powers between the legislature and courts?

Sub-question 1: Which legislature(s)⁸8 can assert their genuine under­standing of rights more freely?

Sub-question 2: Which courts can assert their genuine understanding of rights more freely?

It should be noted that if either of the two sub-questions is answered in favour of the UK and India does not 'win' on the other sub-question, then it will be considered proven that the HRA provides for a more balanced allocation of powers than the Indian Constitution. So, for example, if the Westminster Parliament can freely assert its genuine understanding of rights more than the Indian legislature, and if British courts and Indian courts can assert their genuine understanding of rights equally freely, then the British system provides for a more bal­anced allocation of powers. If, on the other hand, India trumps the UK on either sub-question and there is no 'winner' for the other sub­question, then the Indian system provides for a more balanced alloca­tion of powers. If India and the UK both 'win' on one sub-question each, then there is no clear overall answer for which system provides for the more balanced allocation of powers—the answer would depend upon margins of victory and defeat.

The following hypothetical tables make the analysis clearer. In each table, 'S' indicates that a particular jurisdiction has 'won' on a particular

⁸⁸ In the UK, the new model operates only vis-a-vis one legislative body— the Westminster Parliament.

sub-question, 'x' indicates that a jurisdiction has 'lost' on a particular sub-question, and '-' indicates that neither jurisdiction has won or lost on a particular sub-question.^[196]

In each of the following three tables below, the new model in the UK would be proven to facilitate a greater balanced allocation of powers between the legislature and courts.

In the next table, the UK wins on sub-question 2, and there is no winner on sub-question 1. Therefore, the UK wins on the general question.

UK India

On the other hand, in the next three tables, judicial supremacy in India would be proven to facilitate a greater balanced allocation of pow­ers between legislatures and courts. In the following table, India wins on both sub-questions, and therefore also wins on the general question.

The next table shows that India wins on sub-question 1, and there is no winner on sub-question 2. Therefore, India wins on the general question.

UK India

Sub-question 1 X ∙/

Sub-question 2 - -

In the next table, India wins on sub-question 2, and there is no winner on sub-question 1. Therefore, the India wins on the general question.

UK India

Sub-question 1 - -

Sub-question 2 X ∙/

Finally, in next two tables, there is no clear answer about which model provides for a greater balanced allocation of powers. The answer in these cases would depend on margins of victory and defeat. In the following table, the UK wins on sub-question 1, and India wins on sub-question 2. Therefore, there is no clear winner on the general ques­tion. In the final table, India wins on sub-question 1, and the UK wins on sub-question 2. Therefore, there is no clear winner on the general question.

Two clarifications are necessary at this stage. First, when the ques­tion of whether the legislature or courts are able to assert freely their genuine understanding of rights is asked, the focus is on whether both sets of institutions are able, in practice, to express their opinions on questions of rights unreservedly. Therefore, this is not merely a matter of whether courts and the legislature possess the institutional apparatus to assert their understanding of rights. The inquiry is a richer, practice­based one, which will examine whether they are in a position to engage that apparatus meaningfully. This inquiry goes to the heart of the new model, because its proponents claim that it is preferable to judicial supremacy by giving the legislature a greater role in rights resolution, and greater than parliamentary sovereignty because it gives courts a greater role in rights resolution.

Second, the sub-questions have been deliberately phrased in rela­tive terminology. The focus of both sub-questions is on which insti­tutions can assert their understanding of rights �more freely than the corresponding institutions in the other jurisdiction. Hence, the effort remains explicitly comparative, and concentrates solely on how courts and legislatures in both jurisdictions compare with one another. No objective assessment of how the institution performs generally (or perhaps, in comparison with corresponding institutions from other countries) is answered by these sub-questions. This also explains why the tables do not contemplate the possibility of both jurisdictions 'los­ing' on any particular sub-question. This is simply impossible under the analysis that is undertaken, even though it may only, hypothetically speaking, reflect that one institution may be doing a 'less bad' job (or more specifically, playing a less 'non-rights-assertive' role) than the other.

The existing scholarship seems to suggest that the new model is superior to judicial supremacy from the perspective of ensuring a more balanced allocation of powers based on the second table. In other words, whereas courts in jurisdictions with the new model and judi­cial supremacy are able to assert their understanding of rights equally freely, legislatures in jurisdictions with the new model are able to assert their understanding of rights more freely than legislatures in jurisdic­tions with judicial supremacy. This is on account of the ability of the legislature to exercise its override power (in Canada), or its power to reject (or simply ignore) declarations of incompatibility (in the UK). As stated earlier, scholars such as Tushnet do not overlook the possibil­ity that decisions taken during judicial review in systems of judicial supremacy may be overridden. But this, they argue, is an arduous and time-consuming process involving extraordinary procedures such as constitutional amendments.

The claim that this book makes, using India and the UK as com­parator jurisdictions, is that when it comes to questions of rights, the new model in the UK does provide for a more balanced allocation of powers than judicial supremacy in India. But the explanation offered in the existing scholarship does not bear out in these two jurisdic­tions. Chapters 2 and 3 establish that in both jurisdictions, the leg­islature can respond to decisions in judicial review equally swiftly, notwithstanding differences in the constitutional procedures avail­able for such responses. However, there is an alternative explanation for the superiority of the HRA's model of rights protection over that in the Indian Constitution. That explanation comes from the third table, not the second.

While the legislature in both jurisdictions can express their under­standing of rights equally easily, courts in the UK are able to express their understanding of rights more easily than courts in India. This stems from the nature of the remedy—the power to strike down legislation— available to Indian courts in proceedings for judicial review. As Chapter 4 explains, Indian courts sometimes hesitate to assert their true under­standing of rights because it would entail exercising the power to strike down legislation. Instead, they allow the 'remedial tail to wag the adjudicative dog'^[197]—by rethinking their original view that a statute is unconstitutional. In similar situations, British courts may choose to make declarations of incompatibility, leaving it to Parliament and the government to rectify the inconsistency with Convention rights.^[198] The analysis also bears implications for the stability concerns associated with systems that have incorporated the new model. Whereas the con­cern of internal stability is not borne out in the UK, the HRA has faced serious threats to its external stability. The Conclusion notes that this danger to external stability is the price that jurisdictions adopting the new model pay for the more balanced allocation of powers between the legislature and courts than models of judicial supremacy.