Introduction

During the second half of the twentieth century, constitutional designers were presented with a choice between two models for the protection of rights. Parliamentary sovereignty postulated that the legislature, rather than the courts, was the legitimate forum for safe­guarding constitutional rights.

It became increasingly clear that each of these models for the pro­tection of rights left something to be desired. Whereas parliamentary sovereignty imperilled the rights of those with inadequate representa­tion in the legislative process, judicial supremacy gave rise to concerns based on democratic legitimacy and counter-majoritarianism. This imperfect binary prompted a novel experiment in constitutional design in parts of the Commonwealth, exemplified by UK's Human Rights Act, 1998 (HRA). For the first time, British courts were empowered to review primary legislation on rights-based parameters. However, courts would not be permitted to invalidate legislation outright; they could only make a declaration of incompatibility, leaving it to the British Parliament to decide whether to amend the law.

The HRA provoked particular interest amongst scholars because, unlike parliamentary sovereignty and judicial supremacy, it offered a balanced' model for the protection of rights, which conferred courts with a limited power of review over legislation. Under this model,

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

© Oxford University Press 2017. Published 2017 by Oxford University Press. rights-based decision-making was expected to be balanced amongst courts and the legislature, rather than lopsided in favour of either. The menu of options was no longer restricted to parliamentary sovereignty and judicial supremacy, but included parliamentary sovereignty and two distinct models of judicial review.

This book examines the promise of the new model against its perfor­mance in practice, by comparing judicial review under the HRA to an exemplar of the old model of judicial review—the Indian Constitution. The book argues that although the HRA fosters a more balanced allo­cation of powers between the legislature and courts than the Indian Constitution, it does so for a different reason than the one offered by scholars. Political practice suggests that legislatures in the UK and India find it equally difficult to offer their conceptions of rights by rejecting declarations of incompatibility and judgments striking down legislation respectively. In fact, contrary to expectations, the Indian Parliament's responses to strike-downs have been marginally swifter than the Westminster Parliament's responses to declarations of incompatibility. Thus, the HRA fails to achieve more balanced constitutionalism through legislative rejection of judicial decision-making about rights.

The book then proceeds to offer a novel alternative account for the HRA's superiority from the standpoint of balanced constitutionalism. The nature of the remedy itself—the declaration of incompatibility— enables British courts to assert their genuine understanding of rights in situations in which Indian courts find it difficult to do so. The Indian Supreme Court adjudicates in the shadow of the power to strike down legislation, masking its genuine rights reasoning with reasoning that enables it to avoid exercising the power altogether. The new model achieves greater balance not because it enables the legislature to assert its conceptions of rights more easily, but because it encourages courts to do so in circumstances that they would not have been able to under the old model.

1997 was a defining year for British constitutionalism. The Labour Party secured victory in the general election, ending 18 years of Conservative Party rule. Prime Minister Tony Blair's 'New Labour' government swiftly pursued many significant constitutional reforms set out in the party's election manifesto, including changing the composition of the House of Lords (the upper house of Parliament), devolving lawmaking authority and some executive powers from Westminster Parliament to Scotland and Wales, and enacting legislation on freedom of informa­tion. However, amongst the most profound constitutional changes brought about by the Labour Party was the enactment of the HRA, a domestic statute intended to give effect to the European Convention for the Protection of Human Rights and Fundamental Freedoms, 1950 (or the Convention), which the UK had signed more than four decades earlier.

Historically, the notion of a bill of rights enforced by courts was con­sidered anathema in the UK. As is well known, the UK has no canonical constitutional document. Instead, its Constitution comprises a patch­work of legislation^[1] and conventions.^[2] Rights were protected as negative liberties—the rights of British citizens consisted not of a set of guarantees embodied in a written instrument, but were the residue of liberties that remained untouched by legislation enacted by Parliament, consisting of the House of Commons and the House of Lords. Rights were safeguarded through parliamentary scrutiny over the exercise of executive power, as well as through protections afforded by courts under the common law. In this context, a bill of rights was viewed with scepticism because of its possible impact on parliamentary democracy and the perceived transfer of power from politicians to judges that such a bill would occasion.^[3]

However, towards the latter half of the twentieth century, appeals for the enactment of a bill of rights increased. A realization began to dawn amongst the people that Parliament was no longer an effective check on government.^[4] Non-governmental organizations (NGOs) and pressure groups^[5] drafted charters of rights for the UK.

The UK was a founder member of the Council of Europe (CoE), a pan-European organization of 47 states, established at the end of the Second World War. The CoE drafted the Convention, a treaty for the protection of human rights and fundamental freedoms in member states. The Convention was an 'international code of civilised conduct'^[8] drafted with the aim of preventing sequels to the atrocities perpetrated in Nazi Germany. It contains a catalogue of civil and political rights including the right to life,^[9] the right against torture,^[10] the right to a fair trial,^[11] the right to privacy,^[12] and the right to freedom of expression.^[13]

The European Court of Human Rights, Strasbourg (or the Strasbourg Court) hears applications concerning allegations that member states have breached rights under the Convention. Judgments of the Strasbourg Court are binding on member states that are parties to the decision.^[14] The UK was the very first country to ratify the Convention and accepted the right of individual petition to the Strasbourg Court in 1966. However, until 1998, no domestic statute in the UK incorporated or directly implemented rights under the Convention. This meant that litigants were unable to enforce their Convention rights in the domestic courts and suffered heavy expenses and considerable delays in making claims to the Strasbourg Court.^[15]

The buzz phrase during the enactment of the HRA was that it was meant to 'bring rights home' to Britain, by transforming rights that were available to British citizens in an international court into 'British rights' that could be relied upon in domestic courts.^[16] The government explicitly set out a threefold rationale for the HRA: First, it would enable citizens to enforce their Convention rights in domestic courts, instead of pursuing the 'long and hard' road to Strasbourg,^[17] which at the time took about five years and cost GBP 30,000 on an average.^[18] Second, it would ensure that Convention rights would be brought more meaning­fully into the jurisprudence of British courts.

Incorporated into the Schedule to the HRA were the rights and freedoms embodied in some articles of the Convention and its Protocols.^[19] The HRA rendered it unlawful for all public authorities, including courts, to act in a way that was incompatible with one or more Convention rights set out in the Schedule.^[20] Decisions of public authorities could therefore be set aside or struck down on the basis that they contravened Convention rights. As is well known, the UK is a union of England, Wales, Scotland, and Northern Ireland, and the New Labour government's reforms included the devolution of legislative powers from the Westminster Parliament to the Scottish Parliament, the Welsh National Assembly, and the Northern Ireland Assembly.^[21] These three devolved legislatures were also bound by the requirement to comply with Convention rights, which meant that legislation ema­nating from Edinburgh, Cardiff, and Belfast could be struck down on the basis that it violated one or more of the Convention rights that were incorporated into the Schedule to the HRA.

However, by virtue of being a sovereign legislature, the Westminster Parliament was specifically exempted from these provisions.^[22] Traditionally, parliamentary sovereignty was the fundamental principle of the British Constitution. Simply stated, the principle postulated that anything that the king or queen in Parliament enacted was law. This prin­ciple had several implications. First, there could be no legal impediments on the kind of laws that Parliament could enact—it effectively enjoyed 'unlimited legislative authority'.^[23] Second, British courts did not possess the power to strike down or disapply a statute passed by Parliament.

Legal and political developments over the years reshaped this orthodox notion of parliamentary sovereignty. After the UK's entry into the EU in 1973, courts began disapplying UK law that conflicted with EU law.^[24] As a member of the CoE, the UK is also under an international obligation to bring its domestic law (including statutes of the Westminster Parliament) into compliance with the judgments of the Strasbourg Court. Based on devolution settlements, the Westminster Parliament, by convention, does not legislate on devolved subjects with­out the consent of the relevant devolved legislature.^[25] Since the turn of the century, senior judges have not only recognized Parliament's ability to protect legislation from implied repeal,^[26] but have also threatened to disapply future statutes that clearly attempt to defy the rule of law.^[27]

Nevertheless, it is safe to say that the doctrine of parliamentary sov­ereignty still exerted considerable influence in political circles at the time of the enactment of the HRA. As the home secretary commented in the House of Commons, 'The sovereignty of Parliament must be paramount. By that, I mean that Parliament must be competent to make any law on any matter of its choosing.'^[28] Therefore, the challenge was to conceptualize a model that enabled British courts to review Westminster legislation on rights-based grounds, without impinging upon parliamentary sovereignty. Even if there was sufficient agreement on the need to protect further Convention rights domestically, legis­lative history showed that the devil was in the detail^[29]—how would Parliament translate this benevolent objective into the provisions of a statute?

The government mulled over possible options. On the one hand, it considered embracing the approach adopted in the New Zealand Bill of Rights Act a few years earlier, in which courts are required to interpret past and future legislation consistently with the rights set out in the act, but cannot do anything further if legislation is inconsistent with those rights.^[30] On the other hand, it considered the Canadian model, in which courts can strike down legislation that conflicts with rights, subject to the legislature's ability to re-enact legislation with a 'notwithstanding' clause that would insulate it from judicial review for a defined timespan.^[31]

It soon became clear, however, that there was no appetite to give courts the power to strike down legislation, with or without a notwithstanding clause. Many senior judges themselves rejected the idea. As Lord Chief Justice Bingham said at the time, 'That is a power which throughout the recent debates the judges have made clear they do not seek.'^[32] Even though the debates about the HRA had a strong comparative flavour,^[33] the solution devised was distinctively British. The resulting provisions came in for considerable praise from MPs, having been described as a 'masterly exhibition' of draughtsmanship,^[34] an 'adroit scheme' of rights protection,^[35] a 'thing of intellectual beaut/,^[36] and an 'ingenious' solu­tion to the problems that Parliament was confronted with.^[37]

The solution was as follows: under section 3 of the HRA, legisla­tion needed to be read, so far as possible, consistently with Convention rights. However, if a rights-compatible interpretation of primary legislation was not possible, courts could make a declaration of incom­patibility under section 4. This declaration would not affect the valid­ity of statutory provisions or render action taken under it unlawful. Instead, it would leave it to Parliament and the government to decide whether and how to address the inconsistency with Convention rights. The declaration would also trigger a ministerial power to amend the incompatible legislation by remedial order if there were compelling reasons to do so.^[38] In order to ensure that the declaration of incompat­ibility did not become a de facto power to strike down legislation, the decision about whether to make a remedial order following a declara­tion of incompatibility was left to the discretion of the government.^[39]

At a conceptual level, the declaration of incompatibility was thus envisioned as an intelligent way of reconciling parliamentary sover­eignty and judicial review of primary legislation. However, the remedy excited considerable interest amongst scholars for another reason—by giving courts the power to review legislation without being able to strike it down, it was expected to facilitate a balanced allocation of powers between courts and the legislature in articulating their views about rights. Under this model of rights protection, both institutions were likely to have the opportunity of advancing their views on the compliance of legislation with rights. It was different from parliamen­tary sovereignty, where the legislature had the upper hand in decid­ing rights-based questions, and full-scale judicial review or judicial supremacy, where courts enjoyed this privilege.

Which courts were entrusted with the power of making declarations of incompatibility? The structure of the judicial system in the UK is hierarchical but fragmented, since different nations within the UK have different judicial structures. Within each nation, different courts are located at separate levels of the hierarchy based on the subject matter of a dispute. The unifying element between the hierarchy of courts in England & Wales, Scotland, and Northern Ireland is that the Supreme Court, in all cases (barring Scottish criminal cases), stands at the top of the pyramid. The 12-member Supreme Court took over the functions of the Judicial Committee of the House of Lords in 20 09.^[40] It only determines points of law and hears cases of public or constitutional importance. Panels of five judges typically hear cases in the Supreme Court.^[41]

A court of appeal, followed by a high court, constitutes the next two levels of hierarchy in England & Wales and Northern Ireland.^[42] In the context of this judicial structure, the power to make declarations of incompatibility was not reserved to the Supreme Court, but was entrusted to all courts at the level of high court and above.^[43] The HRA also specified that declarations of incompatibility could be made in any proceeding, subject to the requirement that the government is served notice and given a hearing when a court is considering whether to make such a declaration.^{[44] [45]}

In addition to opening up new avenues of judicial review, the HRA provided for 'pre-enactment political rights review^,45 of legislation. This was done through section 19, which requires the minister in charge of a bill to make a statement that, in his/her view, the provisions of the bill are compatible with Convention rights or that he/she is unable to make a statement of compatibility, but the government 'nevertheless wishes the House to proceed' with the bill.^[46] The Joint Committee on Human Rights (JCHR), a select committee of both houses of Parliament that scrutinizes draft legislation to determine whether compatibility state­ments are properly made, gives potency to section 19.^[47]7

The HRA is an un-entrenched statute, which means that it can be amended or repealed by simple parliamentary majority, without recourse to special majorities or cumbersome amending procedures.^[48] This is particularly relevant in the context of the regular threats that have been made by the Conservative Party to repeal the HRA. Nevertheless, it is useful to remember that it is not the HRA which brought the very notion of rights into the UK for the first time. It is for this reason that a hereditary peer in the House of Lords pressed for the word 'additional' or 'enhanced' to be placed before 'Human Rights Act' in the statute's title.^[49]

Let us now turn back the clock by almost exactly half a century. In the twilight years of the British Raj, an indirectly elected Constituent Assembly was established to draft a codified constitution for India. Unlike the UK's piecemeal constitutional arrangements, India had its 'big bang' moment of independence in 1947, leading to the adop­tion of a written Constitution on 26 November 1949. The Indian Constitution—the world's longest^[50]—was a comprehensive document that would reflect the values and aspirations of the people. As with many of its post-Second World War counterparts, the Constitution embodied strong individual rights guarantees. Part III contained the chapter on fundamental rights, which included basic civil and political rights such as the right to equality,^[51] the freedom of speech and expres­sion,^[52] the right to life and personal liberty,^[53] and the right to freedom of religion.^[54] Quite remarkably, Art. 32, considered by Dr Ambedkar (Chairman of the Drafting Committee of the Constituent Assembly) as the 'very soul' and 'heart' of the Constitution,^[55] guaranteed the right to move the Supreme Court at first instance for the enforcement of these rights.

However, rather more unusually for its time, the Constitution also contained a chapter on social rights. Part IV consisted of the 'Directive Principles of State Policy⁷, modelled on Ireland's 'Directive Principles of Social Policy'. At the time of their adoption, these principles were not considered justiciable, but were 'nevertheless fundamental in the governance of the country⁷.^[56] They imposed several duties on the state, including providing equal pay for equal work,^[57] offering free legal aid,^[58] and raising the level of nutrition and standard of living amongst the people.^[59] India was established as a quasi-federal state, with legislative powers shared between the union and the states. There is a bicameral legislature for the union, comprising the Rajya Sabha (Council of States) and the Lok Sabha (House of People). At the state level, seven of India's 29 states have bicameral legislatures, comprising a Vidhan Parishad (Upper House) and a Vidhan Sabha (Lower House). The remainder have unicameral legislatures.

It was always clear that Indian courts were constitutionally entrusted with the power to strike down primary legislation enacted by the Union and state legislatures. This was a power of not just procedural judicial review, but also substantive judicial review. In other words, courts could not only strike down legislation on the basis that it fell afoul of the federal distribution of powers, but also on the basis that it contravened fundamental rights or other constitutional rights. Some members of the Constituent Assembly persuasively argued that the power of judicial review of legislation was inherent in federal Constitutions with a bill of rights.^[60] On the face of it, the Indian power to strike down legislation did not engender the benefit that scholars claimed for the HRA. Since the Supreme Court and high courts were the 'ultimate arbiter in all mat­ters involving the interpretation of the Constitution',^[61] it was expected that courts would have the final say on questions relating to rights, and that Parliament could not be an equal participant in decision-making about rights.

A few speeches during the Constituent Assembly Debates cast some doubt about whether all members were equally enthusiastic about the courts having the power to strike down legislation on rights-based parameters. No less a person than Dr Ambedkar said (although in the context of whether or not the Indian Constitution should adopt a US-style due process clause):^[62]

In a federal constitution, it is always open to the judiciary to decide whether any particular law passed by the legislature is ultra vires or intra vires in reference to the powers of legislation which are granted by the Constitution to the particular legislature. If the law made by a particular legislature exceeds the authority of the power given to it by the Constitution, such law would be ultra vires and invalid.... The question which arises in considering this matter is this. We have no doubt given the judiciary the power to examine the law made by different legislative bodies on the ground whether that law is in accordance with the powers given to it. The question now raised by the introduction of the phrase 'due process' is whether the judiciary should be given the additional power to question the laws made by the State on the ground that they violate certain fundamental principles. (Emphasis added)

Although these observations are remarkably broad, it is likely that they were only meant in the context of whether India should incorporate a US-style due process clause,^[63] rather than whether courts, in general, possess the power to strike down legislation on the basis that it vio­lates rights. Harder to explain is the statement of Annie Mascarene (a prominent freedom fighter who was later elected as an MP in the first general election in independent India), who, during the final days of the drafting process, observed: 'Our judiciary with its original and appellate jurisdiction and with the right of interpretation of the con­stitution differs from that of America, where the judiciary has the right of judicial review of executive and legislative activities'^[64] (emphasis added). One way of reading these observations suggests that Indian courts were not entrusted with the power to strike down legislation that was incon­sistent with rights.^[65] But any such inferences are powerfully rebutted by the final text of the Constitution itself. Although the power to review and strike down legislation cannot be paired with a single article of the Constitution, it is made manifest by reading several constitutional provisions together.

To begin with, Art. 13(2) proscribes the State from making 'any law which takes away or abridges the rights conferred' by Part III.^[66] It then clarifies that 'any law made in contravention of this clause [Art. 13(2)] shall, to the extent of the contravention, be void'. This provision has often been understood to enable courts to strike down primary legislation and executive action.^[67] On its own, the provision is under-inclusive and does not encompass the full gamut of judicial review, because it only addresses inconsistencies between legislation and fundamental rights (under Part III), leaving aside the question of inconsistencies between legislation and other justiciable provisions of the Constitution.

Interestingly, Art. 13 did not provoke much debate in the Constituent Assembly.^[68] The most likely inference is that a consensus prevailed about the necessity of including this provision in the Constitution. Granville Austin records that members of an ad hoc committee of the Constituent Assembly had urged the Assembly to include this explicit provision for judicial review, in the knowledge that in the US, the power of judicial review had to be inferred by the Supreme Court.^[69] It should also be noted that one of the possible reasons for which Art. 13 was not debated at length was because the nature of the remedy available to courts was a sideshow at the time of the Constitution's enactment (although, as this book demonstrates, it became increasingly significant after the Constitution entered into force). The Indian Constitution was meant to be a transformative one, seeking to address complex social problems such as untouchability, illiteracy, and the unequal distribu­tion of wealth. It is only natural then that the framers focused their energies on these seemingly more pressing matters. This is in contrast to the UK, where on account of the tradition of parliamentary sover­eignty, the remedy formed a central plank of the parliamentary debates at the time of enactment of the HRA.

Next, there are Arts 372(1) and 245(1) of the Constitution—the former applies to pre-constitutional laws,^[70] and the latter to post­constitutional laws.^[71] Art. 372(1) provides that 'subject to the provisions of the Constitution, all laws in force in the territory of India immediately before the commencement of the Constitution shall continue in force therein until altered or repealed or amended by a competent Legislature or other competent authority (emphasis added). In the context of judicial review of legislation, this provision bears two implications:

First, it signals that all laws in force prior to the commencement of the Constitution can be tested for compliance with the provisions of the Constitution by courts. Second, since the term 'laws', as per Art. 372, includes common law,^[72] the power of judicial review of legis­lation (which was part of common law applicable in India before the Constitution entered into force^[73]) would continue to vest in the Indian courts.

Article 245(1) reads as follows: 'S ubject to the provisions of this Constitution, Parliament may make laws for the whole or any part of the territory of India, and the Legislature of a State may make laws for the whole or any part of the State' (emphasis added). This provision, on the other hand, seems to suggest that post-constitutional legisla­tion that violates provisions of the Constitution can be reviewed (and struck down as invalid) by Indian courts.^[74] Overall, this network of constitutional provisions clearly shows that judicial review of primary legislation, coupled with the power to strike it down, formed part of the scheme of the Indian Constitution at the time of its founding.

The Indian Constitution established a unitary judicial structure with the Supreme Court at the top. The Supreme Court is the final court of appeal in civil and criminal cases and is the authoritative interpreter of the Constitution. Comprising maximum 31 judges including the Chief Justice, the Supreme Court sits in panels of two or more judges.^[75] The Constitution declares that judgments of the Supreme Court are binding on all other courts in the country.^[76] Twenty-four high courts, representing the states and union territories in India,^[77] are at the sec­ond tier of this hierarchy. High courts exercise appellate and original jurisdiction. As is the case with declarations of incompatibility in the UK, only the higher courts in India (the Supreme Court and the state high courts) have the power to strike down any legislation on the basis that it violates constitutional rights.^[78]

It is important to note some of the differences between the Supreme Court of the UK and the Supreme Court of India—these differences often reflect the manner in which judgments are drafted and reasoned in both courts. The Indian Supreme Court is more in the nature of an ordinary appellate court rather than what one might associate with being the foremost court for a jurisdiction. The UK Supreme Court, although not an exclusively constitutional court in the continental European sense, is like a conventional Supreme Court that decides a select group of cases. The UK Supreme Court hears about 65 cases a year,^[79] while the overburdened Indian Supreme Court hears close to 50,000 cases a year,^[80] with over 60,000 cases awaiting hearing.^[81] Decisions of the UK Supreme Court are usually made by panels of five judges, whereas two-judge panels are the norm in the Indian Supreme Court.^[82] Unlike in the UK, the staggering volume of cases in India makes it difficult for the academics to analyse the jurisprudence of the Supreme Court critically and comprehensively over any given period of time.^[83] Judicial review is no exception to this phenomenon: every UK Supreme Court judgment under sections 3 and 4 of the HRA is the subject of widespread academic commentary, while many Indian Supreme Court judgments on judicial review of primary legislation tend to fall under the radar.^[84]

Pre-enactment political rights review in India is not as broad-based as it is under the HRA. At the level of the Union Parliament, the govern­ment department in charge of a bill refers legislative proposals to the Union Ministry of Law and Justice for advice as to 'its feasibility from legal and constitutional points of view'.^[85] This review is expected to be of a top-level nature, since (unlike in the UK) it takes place before the legislative proposals are formally translated into a bill.^[86] Before the bill is finalized and introduced in Parliament, the department in charge of the bill is expected to submit a pro forma document indicating compli­ance with constitutional and procedural requirements for the bill to the relevant minister.^[87] Although the pro forma requires the depart­ment to specify if the bill contains any provisions 'placing restrictions on or regulation of [sic] fundamental rights',^[88] it does not require the question of the legislation's compatibility with rights to be considered during parliamentary proceedings.

The Indian Constitution, as a canonical constitutional document, is entrenched to a far greater extent than the HRA. Amendments to the Constitution can only be made by a two-thirds' majority in the Union Parliament.^[89] Amendments of certain matters, such as the distribution of legislative power between the union and the states, also require ratification of at least half of the states.^[90] In its seminal judgment in Kesavananda Bharati v. State of Kerala,^[91] the Supreme Court established a jurisdiction to review and strike down constitutional amendments that alter or destroy the basic structure' of the Constitution.^[92] It developed what is effectively a judicially imposed absolute entrenchment of the Constitution's basic features.

Comparative constitutional law is a relatively nascent field in the social sciences, and is still in its formative years. It is unsurprising that it is often asked whether there is any value in comparing constitutional systems. Is it at all useful to compare systems with different cultures, political histories, and linguistic identities? Reference to foreign judg­ments in constitutional decision-making has also generated significant controversy. As Justice Scalia from the US Supreme Court famously said, 'We must never forget that it is a Constitution for the United States of America we are expounding... where there is first not a settled consensus among our own people, the views of other nations, however enlightened the Justices of this Court may think them to be, cannot be imposed upon Americans through the Constitution.'^[93] These are hard issues that have received compelling treatment elsewhere.^[94] But the case for the constitutional scholar, rather than the court, is easier— comparing experiences from different constitutional systems enables us to learn from them, and better understand the system with which we are most familiar. As Robert Leckey says: 'If knowledge is power, favor­able foreign judicial texts, and the periodical articles that disseminate them to new audiences, are part of the relevant knowledge.'^[95]

Nevertheless, comparative constitutional law also carries its share of challenges for scholars. As with all comparative law, it involves an opportunity cost—looking at multiple systems often demands compro­mising the depth in which each system is examined. Resources from all jurisdictions may not be equally accessible.^[96] Language barriers may require scholars to learn foreign tongues or rely on translations (an issue which this piece of work did not face, since English is the official language for the UK [de jure] and India [de facto]). These challenges need to be accommodated bearing in mind the nature and purpose of the research undertaken.

This book seeks to measure the promise of the new model against its performance—by comparing judicial review in one of the world's oldest existing democracies, the UK, to that under the Constitution of the world's largest democracy, India. As was explained in the preceding discussion, in terms of constitutional design, India and the UK lie along different parts of the spectrum of judicial review. The Indian Supreme Court and high courts have the power to review primary legislation on both substantive and procedural grounds. The remedy available to them is more familiar to the constitutional scholar than the declaration of incompatibility—legislation that violates constitutional rights can be struck down. In contrast with the HRA, this court-centric model of review is believed to supply the judiciary with an advantage in decid­ing rights-based questions. Constitutional review is based not on an un-entrenched statute of Parliament, but on an entrenched, 'codified' Constitution. Ever since its enactment in 1949, the Indian Constitution has remained safe from existential threats posed by changing political majorities, barring a brief period of national emergency during Prime Minister Indira Gandhi's tenure in the 1970s.

Many scholars have argued that judicial review in the UK (and in other jurisdictions with similar versions of judicial review) is superior to models of judicial supremacy, where courts have the power to strike down legislation, because it enables the legislature to assert its own— more democratically grounded—conceptions of rights. This is by virtue of the fact that the legislature can reject judicial understandings of rights through ordinary majorities, without needing to take recourse to cumbersome amendment procedures or court-packing plans. The pri­mary issue that this book seeks to focus on is: which model of judicial review, between that of India and the UK, enables both the legislature and courts to assert their understanding of rights more freely? This will be broken down into two questions: the first, addressed to the legisla­ture, and the second, addressed to courts. Examining these questions will entail thorough investigation into many facets of the declaration of incompatibility (in the UK) and the power to strike down legisla­tion (in India), including legislatures' perceptions of them, courts' willingness to issue them, and the role of institutions that strengthen or weaken their normative force.

An obvious issue that then arises is why India has been selected as the comparator jurisdiction for this task. Most studies thus far have focused on the US as the exemplar of judicial supremacy.^[97] From that perspective, this book breaks away from the existing scholarship on models of judicial review. The reason for this is that unlike the US, India exhibits the combination of a system that is characterized by judicial supremacy within a tradition of parliamentary democracy. In parliamentary systems of government, since there is no formal separa­tion between the legislature and the executive,^[98] it is crucial to enable the two key prongs of authority—the legislature and courts—to assert their competing conceptions of rights.^[99]

Parliamentary systems do not possess 'dual democratic legitimacy⁷ shared between the executive and the legislature.^[100] In parliamentary systems, the legislature alone represents the popular will in the rights discourse. The UK and India share this characteristic. To compare the UK's HRA with the US or other jurisdictions with an elected executive suffers the drawback that in presidential systems, there is an alternative source of democratic legitimacy: ignoring the executive's contribution to the rights discourse misses an important part of the landscape.

Although India and the UK have been compared in other areas of the law,^[101] it is somewhat surprising that no detailed work comparing the UK's experience under the HRA with judicial review in India has surfaced, particularly since the two nations share a common history, and the two legal systems continue to influence one another. Scholars have also demanded a greater focus on South Asia in constitutional research.^[102] This book may be considered as an attempt to fulfil such demands by focusing attention on a jurisdiction whose constitutional complexities remain under-theorized and are still not fully understood.

The book adopts what can be situated in the scholarship as a 'small- n'^[103]3 approach—focusing on two jurisdictions in considerable detail and depth. Recent scholarship has emphasized upon the value of developing causality in comparative constitutional law;^[104] for instance, that the way in which a Constitution is drafted establishes an 'incentive structure that affects behaviour' in one way or another.^[105] Given the complex number of variables at play, this book is sceptical about draw­ing any distinct generalizations,^[106] although it speculates about some towards the end. The focus, rather, is on concept thickening^[107]—under- standing and explaining the way in which judicial review operates in both jurisdictions. This work will compare not only the formal legal rules and texts in both jurisdictions, but also the manner in which they operate in practice.

The book, therefore, relies on the functionalist methodology. Functionalism has four characteristics:^[108] First, it is factual, and 'focuses not on rules but on their effects' and not on doctrinal form, but on func­tion. Second, social context plays an important role in functionalism: the objects of study are considered in the light of the socio-political context in which they operate. Third, an excessive focus on nomenclature is cast aside, and institutions are treated as comparable if they are functionally equivalent. Fourth, functionality serves as an 'evaluative criterion' to determine which institutions fulfil certain functions better than others.

Functionalism is amongst the most widely applied, yet heavily con­tested, methodologies in comparative law. As one scholar observes, it has become 'both the mantra and the bete noire of comparative law'.^[109] Functionalist approaches also lie at the fulcrum of two opposing ten- sions—on the one hand, they must avoid specifying functions too generally, and on the other, must also avoid specifying functions so precisely that the benefits of comparison are all but lost.^[110] This book attempts to avoid these tensions by defining the 'function'—maintain- ing a balance between the legislature and courts on the interpretation of rights—at an appropriate level of abstraction.

Functionalism is also condemned for assuming that societies con­front similar social problems.^[111] Then there is the organicist critique, which posits that only a constitutional regime that emanates organi­cally from within a society will be accepted by it.^[112] An effective way of dealing with these critiques is by deploying a moderate form of functionalism,^[113] which is sensitive to differences in social and politi­cal context and cautious about making direct causal inferences. This moderate form of functionalism recognizes that rules and institutions form part of a larger social context. Mindful of this, this chapter has attempted to supply some context to the discussion that follows in the book.

The book pursues the following trajectory: Chapter 1 establishes the theoretical framework, and more fully develops the questions that the book engages with. Chapters 2 and 3 consider political responses to dec­larations of incompatibility in the UK and striking down of legislation in India, with the objective of determining whether the Westminster Parliament has greater room for manoeuvre than the Indian legisla­ture, as many scholars would have expected soon after the HRA was enacted. Chapter 4 moves to the judicial dimension—whether, in the context of the constitutional remedies available to them, courts in both jurisdictions are able to assert their understanding of rights unreserv­edly. Chapter 5 then examines the institutional structure surrounding the remedies, with reference to the work of the JCHR in the UK, the Strasbourg Court under the Convention, and the National Human Rights Commission (NHRC) in India. Chapter 6 concludes and consid­ers broader inferences that may be drawn from this book.