Parliamentary Debates

A glimpse into parliamentary debates provides us with valuable com­mentary on responses to judgments striking down legislation in India and declarations of incompatibility in the UK.

An excerpt from Nehru's speech during the Lok Sabha debates on the First Amendment to the Constitution provides evidence of this:^[532]

[N]early all the members who are present here in this House were fram­ers of this Constitution and they will remember the long debates we had about various matters. We spent many months over this. That does not mean, of course, that everything we did was perfect. No doubt we shall learn by experience and try to remedy. But the fact remains that we have a good, general broad idea of what we intended. (Emphasis added)

In an interesting exchange during the same debates, one MP ques­tioned whether it was legitimate to amend the Constitution so soon after it had been drafted by the best brains in the country. P.S. Deshmukh, who was later to become Union minister in Nehru's government, swiftly retorted: The same brains are changing it.'^[533] Of course, as any student of constitutional law knows, attributing intention to the deci­sion of a collective body is an exercise fraught with danger.

Naturally, the overlap in membership between Parliament and the Constituent Assembly could not last long. Nevertheless, this justifica­tion continued to hold sway in a slightly different form. It was said that it was Parliament's predecessor that had made the Constitution, and thus it was Parliament, rather than the courts, that was best placed to understand the intentions behind the text.^[535] As Prime Minister Indira Gandhi explained on the floor of the Lok Sabha, Parliament believed that it not only understood the Constituent Assembly better than the courts, but also that it better represented the Assembly.^[536]

Most significantly, the Indian Parliament did not conceive of the Supreme Court and high courts as being the exclusive or final interpret­ers of constitutional rights. During many of the debates, MPs discussed and criticized the courts' interpretation of constitutional provisions threadbare, and offered what they considered more plausible alterna­tives. While discussing the first amendment, Nehru pointed out that by amending the Constitution, Parliament was doing what 'in the normal course judicial interpretation might have done'.^[537] Opposition leaders who disagreed with Nehru questioned the timing of the amendment,^[538] but agreed that it was legitimate for Parliament to offer an alternative interpretation of the Constitution to that of the courts.^[539] Similarly, B.R. Ambedkar disagreed with the Supreme Court's reading of the excep­tions to the freedom of speech and expression, observing that they were not to be read as though they were 'matters of straight jacket [sic]'.^[540]

The Fourth Amendment, through which Parliament responded to judgments of the Supreme Court on the right to property, reflected similar interpretive disagreement.

An attempt is being made sometimes to represent as if [sic] the judiciary is the only guardian of the rights and liberties of the people and that if the judiciary is not there, probably the legislatures would run amuck and encroach upon the rights and liberties of people at any time or any cost. I submit it is a wrong approach. The legislatures, as I have said, have a very important place. (Emphasis added)

Interpretive disagreement was also evident in the parliamentary debates on the Twenty-fifth and Thirty-fourth Amendments to the Constitution. The Bank Nationalization case,^[543] discussed in the previous chapter, was nullified through the Twenty-fifth Amendment to the Constitution. MPs observed that the Supreme Court had 'misinterpreted' the constitutional provisions in its judgment,^[544] and that the Court's interpretation had ren­dered previous amendments to the Constitution otiose.^[545] When discuss­ing the Thirty-fourth Amendment, a cabinet minister pointed out that the amendment did not actually modify the Constitution in any way—it only gave concrete expression to the Constitution as it existed, before it was misconstrued by the Supreme Court.^[546]

Most often, MPs did not skirt around the issue of why these amend­ments were being enacted. That judgments striking down legislation were seeking to be nullified was made unequivocal. As Ambedkar observed, 'A question was asked as to what was the necessity for intro­ducing three new heads [under Art. 19(2) of the Constitution]. The necessity has arisen out of certain judgments which have been deliv­ered by the Supreme Court as well as the Provincial High Courts.'^[547] Nevertheless, these amendments gave rise to different kinds of politi­cal positioning vis-a-vis the judgments. MPs did not always suggest that the courts simply interpreted the constitutional text incorrectly.

Another interesting factor to note is that, as discussed in Chapter 1, even though the Indian Constitution is designed in a way that seems to espouse judicial supremacy, the doctrine of parliamentary supremacy was commonly invoked in the debates concerning constitutional amendments. As H.R. Gokhale, the law minister during the first term of the Indira Gandhi government, commented: 'It is the Parliament that is a supreme body. It can enact any law that is suitable for the country and that is suitable for the people... the High Courts or the Supreme Court. must forget that they have any superiority over the Parliament.'^[551] These statements are hard to dismiss offhand as political rhetoric or a failure to understand the sophistication of the Indian constitutional scheme. Rather, they seem to signify that the notion that courts enjoyed the 'last word' on rights-based questions—which schol­ars argue necessarily accompanies models of judicial supremacy—did not go uncontested.

Moving to the UK, parliamentary debates indicate that the declara­tion of incompatibility is particularly conducive to political position­ing. This is especially because when such a declaration is made, it remains unclear whether the case has resulted in a 'win' or a 'loss' for the government. Also, would this position change if the government specifically agreed to—or did not oppose—the issuance of a declara­tion of incompatibility, as is sometimes the case?^[552] MPs often claim in Parliament that the court did not hold that the statutory regime was unlawful—a point which is technically correct, but overlooks the fact that the court found the regime to be inconsistent with human rights obligations.

This also has an impact upon how MPs address declarations of incompatibility when debating legislation that seeks to amend the incompatible law. It appears that when MPs wish to secure political capital from the amendments, they situate the declaration of incom­patibility as being only one of the reasons, or perhaps an additional impetus, to change the law. This is demonstrated by what was said by a Conservative Party MP following Blood and Tarbuck^[556] (in which the failure of a statutory regime to permit a father's name to be entered on the birth certificate of a child, when the father had died and the child was conceived as a result of fertility treatment, was declared incompat­ible with Convention rights):^[557]

We have heard talk of the 28 February court case and the ruling that the Human Fertilisation and Embryology Act 1990 is incompatible [with Art. 8 of the Convention].... That has clearly made the issue all the more urgent. However, although the courts have made a ruling, the measure should be not a response to decisions taken there, but a state­ment by the House on what is the right thing to do. That is the way forward for it.

On the flip side, when MPs are anxious about the political ramifica­tions of changing the law, the declaration of incompatibility is por­trayed as a binding obligation, with which Parliament has no choice but to comply. For example, the declaration of incompatibility made against the 'indefinite notification' regime under the SOA^[558] received an acrimonious reception from the government.

In this vein, similar to the Indian system sometimes being depicted as one where the doctrine of parliamentary supremacy held sway, the British system—characterized by the 'new model' labels set out in Chapter 1—has been depicted as a jurisdiction where judicial suprem­acy prevails. MPs have often described the declaration of incompatibil­ity in terms resembling a power to strike down legislation—observing for instance, that the courts 'struck down'^[560] or 'overturned'^[561] provi­sions of primary legislation.^[562] Once again, it is hard to dismiss these statements as merely a failure to understand the UK's constitutional arrangements. Rather, they reinforce that in practice, the Westminster Parliament does not enjoy the kind of space for political responses that scholars expected, following the HRA's enactment.