Issues of Scope and Typology
Before closing, a few matters concerning the scope of this book and typology should be noted. This book deals with judicial review of primary legislation or legislation emanating from the highest lawmakÂing authorities in both jurisdictions that are examined.
In India, since there is a division of legislative competence between the Union and the states, this includes legislation enacted by the Parliament as well as the state legislatures. On the other hand, in UK, primary legislation has a very specific meaning under the HRA.[199] It includes legislation emanating from Westminster Parliament, but does not include legislaÂtion enacted by the devolved legislature of each of Scotland, Wales, and Northern Ireland.[200] It is this definition of primary legislation that will be adopted vis-a-vis the UK.To be clear, the kind of law that courts grapple with most frequently is not primary legislation.[201] Most often, the courts deal with governÂment policy, ministerial decisions, departmental guidelines, and the like during judicial review, all of which would be excluded from the scope of this book. Interesting judicial decisions that cancelled the arbitrary grant of telecom licences,[202] annulled the appointment of unfit candidates to statutory vigilance bodies,[203] or quashed an executive decision to delay consideration of asylum applications97 fall out of scope. Yet, from the perspective of constitutional law, judicial review of primary legislation by courts is most significant and controversial. It is this kind of judicial review (often described as 'constitutional judiÂcial review'98) that has preoccupied strong democrats such as Jeremy Waldron99 and James Allan.100 This is because primary legislation emaÂnates directly from the people's elected representatives and gives rise to the strongest concerns of counter-majoritarianism.
Unlike delegated legislation, it goes through a formal process of enactment, including readings, parliamentary committee reports, and amendments.101 This open and transparent process gives primary legislation a different sanctity from delegated legislation,102 even when delegated legislation requires a formal parliamentary vote of approval, as is often the case.Another point to note is that the UK's model of rights protecÂtion, based on the Convention, enforces principally civil and political rights.103 On the other hand, as explained in the Introduction, the Indian
97 R (S) v. SSHD, [2007] EWCA Civ 546.
98 Jeffrey Jowell, 'Beyond the Rule of Law: Towards Constitutional Judicial Review' [2000] PL 671.
99 Waldron (n. 13), p. 1353.
100 James Allan, 'Oh That I Were Made Judge in the Land' (2002) 30 Federal Law Review 561.
101 Although, under the HRA, there is a peculiarity of legislation emanatÂing from (elected) devolved legislatures being treated as subordinate legislaÂtion. See N.W. Barber and Alison L. Young, The Rise of Prospective Henry VIII Clauses and Their Implications for Sovereignty' [2003] PL 112, p. 118. Put difÂferently, being a sovereign lawmaking body, the Westminster Parliament may be considered as the 'odd one out' [Whaley v. Lord Watson, (2000) SCLR 279]. The new model does not operate vis-a-vis such legislation, since courts have the power to strike it down if it breaches Convention rights.
102 See Aileen McHarg, What is Delegated Legislation?' [2006] PL 539, pp. 555-6.
103 Robin C.A. White and Clare Ovey, Jacobs, White and Ovey: The European Convention on Human Rights (5th edn, Oxford University Press 2010), p. 8. A notable exception is the right to education under Art. 2 of Protocol 1 to the Convention. The European Social Charter, 1961 is the Council of Europe's primary instrument governing socio-economic rights.
The HRA does not give effect to this Charter. See K.D. Ewing, The Unbalanced Constitution' in Tom Campbell, K.D. Ewing, and Adam Tomkins (eds), Sceptical Essays on Human Constitution guarantees many socio-economic rights in addition to civil and political rights. This book makes a general comparison of the UK's model of judicial review with the Indian model of judicial supremacy and draws inferences that are not restricted to particular categories of rights. A conscious effort has been made to cite cases involving a diverse range of rights in both jurisdictions to provide evidence of the generalÂity of the conclusions that can be drawn from the book. The only excepÂtion is Chapter 4, which adopts a methodology that directly compares specific cases of judicial review in India and the UK. That chapter only relies upon civil and political rights cases from India in order to rebut the claim that the approach of the Indian courts in the selected cases, in contrast to that of British courts, was heavily influenced by the nature of rights they were adjudicating upon.Finally, a point on typology—debates surrounding constitutional adjudication in India, in particular, have often tended to adopt the language of judicial activism and restraint.[204] [205] These terms are entirely inappropriate for the analysis that is conducted in this book. As the book unfolds, it will become clear that courts in both jurisdictions are highly strategic, political actors that keep a close eye on the goings-on in in the other branches of government, and whose decisions are heavily influenced by predictions of what their consequences are likely to be. In this context, the phrases judicial 'activism' and 'restraint', which are often flung around as epithets,[206] risk masking the highly sophisticated nature of the relationship between courts and the legislature in these jurisdictions. *** This chapter has sought to provide the theoretical grounding for the subsequent, practice-heavy, chapters in the book. It has set up a norÂmative framework, and offered eight possibilities that may ensue from the comparison between India and the UK on the question of which jurisdiction provides for a more balanced allocation of powers between legislatures and courts. The chapter provided a quick glimpse into the answer—that the new model in the UK engenders a more balanced allocation of powers between these institutions than judicial supremacy in India, not because of the Westminster Parliament's putative liberty to ignore declarations of incompatibility, but on account of the greater ability of British courts to assert freely their understanding of rights compared to their Indian counterparts. These claims will be thoroughly investigated in the chapters that follow.