Remedial Discretion under the Indian Constitution
The cases from India demonstrate that the power to strike down often proves to be an 'unappealingly blunt instrument'[796] and can adversely affect courts' willingness to express their true understanding of rights.
But one important factor that remains to be considered is the question of remedial discretion—whether the Indian Supreme Court could have modified the effects of the power to strike down legislation to avoid the collateral damage that would have ensued following the Sharma cases, Naz Foundation, and Kartar Singh, had the power been invoked in those cases. The notion of remedial discretion can be expressed in many different ways: the exercise of 'weak-form' powers by courts in a strong-form system,[797] the development of 'intermediate remedies',[798] or the use of collaborative techniques to prompt the legislature to play a role in the crafting of the remedy for the violation of rights.As experience from constitutional courts around the world has shown, there are at least three kinds of intermediate remedies that courts use to soften the effects of a power to strike down or disapply primary legislaÂtion: prospective overruling, suspended striking down or declarations of invalidity, and de facto or informal declarations of incompatibility (made in the absence of specific textual authorization). Prospective overruling enables courts to limit their decisions that overrule established precedent to future situations, excluding its application to situations that relied on the overruled precedent.[799] Suspended declarations of invalidity, which are frequently employed by courts in Canada, enable courts to remand complex issues for legislative consideration.[800] They allow legislatures to adopt remedies that courts would not be able to adopt[801] and seek to minimize disruption to the statutory regime.[802]
Further, it is not inconceivable to think of courts in systems lacking an equivalent of section 4 of the HRA making informal or de facto declarations of incompatibility indicating that a provision of primary legislation is inconsistent with fundamental rights.[803] However, owing to textual and institutional constraints, Indian courts are likely to remain hesitant to rely upon such devices that are commonly invoked by courts in some other jurisdictions.
These constraints will now be considered.Textual Constraints
The constitutional text in India hampers, or at the least fails to facilitate successfully, the exercise of remedial discretion by courts reviewing priÂmary legislation for compliance with rights. Article 13(2) provides that any law made in contravention of fundamental rights 'shall, to the extent of the contravention, be void'. Although this provision leaves room for judicial tools such as 'reading down' and severability at stage two of the analysis, it seems to provide little elbow room for courts to modify the effects of a declaration that a statutory provision is void and unconstiÂtutional for violating fundamental rights. The Indian Constitution does not contain a provision resembling section 172(1)(b) of the South African Constitution, expressly permitting courts to 'limit the retroÂspective effect' of the power to strike down or suspend the effects of the power to strike down 'to allow the competent authority to correct the defect'.[804]
The Indian Constitution, however, contains a more broadly framed provision than section 172(1)(b). Article 142 empowers the Supreme Court to make any order 'as is necessary for doing complete justice in any cause or matter pending before it'.[805] The Court has described the expression 'complete justice' as being 'couched with elasticity to meet myriad situations'.[806] This provision could conceivably be interpreted to enable the Supreme Court to invoke the doctrine of prospective overruling or make suspended declarations of invalidity. At first glance, such an interpretation may even seem perfectly consistent with the Supreme Court's broader interpretive philosophy, given that it has, over the years, moved from a narrow, positivistic approach to a 'broad, purposive' approach in interpreting many constitutional provisions.[807]
However, the Supreme Court's jurisprudence is replete with cases in which the Court has interpreted constitutional provisions expansively to increase, rather than temper, the general exercise of judicial power.[808] Some of the most prominent cases in which courts have engaged in expansive interpretation of the Constitution provide evidence of this practice.
The best place to start is with a case under Art. 142 itself. In 2002, the Supreme Court read its power to do 'complete justice' under Art. 142 as enabling it to reopen decided cases even after the constituÂtionally mandated procedure[809] for doing so had been exhausted.[810] The Court thus established a jurisdiction allowing it to deal with 'curaÂtive petitions', as the Court refers to them, without the specific authoriÂzation of the constitutional text.The most well-known example of expansive interpretation of constiÂtutional provisions, Kesavananda Bharati v. State of Kerala,[811] also faciliÂtated a radical increase in judicial power. In the context of a struggle for constitutional custodianship between the judiciary and Parliament, the Supreme Court held that Parliament's power to amend the Constitution under Art. 368 could not be invoked to alter, abrogate, or destroy the 'basic structure' or 'essential features' of the Constitution. It provided a non-exhaustive catalogue of 'essential features' of the Constitution, which has been incrementally developed in subsequent decisions.[812] The Supreme Court therefore developed a jurisdiction to review the validity of constitutional amendments on substantive grounds. From 1973 onwards, it assumed the paradoxical power to strike down conÂstitutional amendments on the basis that they were unconstitutional.
A third example of expansive interpretation of the constitutional text to increase judicial power comes from the interpretation of Art. 21 of the Indian Constitution, which provides that '[n]o person shall be deprived of his life or personal liberty except according to procedure established by law'. The early case law interpreted this provision quite narrowly, refusing to infuse it with substantive due process guaran- tees.[813] In later cases,[814] however, the Indian Supreme Court read this provision to include a substantive component.
The Court thus extended its scope of judicial review under Art. 21 to include substantive, in addiÂtion to procedural, elements.[815] Within this jurisprudential context, it is unlikely that the Indian Supreme Court would be willing to limit its general judicial powers by circumscribing the effects, or diluting the binding force, of its own decisions (even though, on the analysis in this book, limiting judicial power in this way would probably also increase judicial power specific to the case by enabling judges to strike down a statute which they would have otherwise upheld).The Indian Supreme Court has, however, invoked the doctrine of prospective overruling relying upon Art. 142 and other constitutional provisions.[816] Two objections against the analysis in this book may stem from this observation. First, could the Indian Supreme Court not have invoked this doctrine in the Sharma cases, Naz Foundation, and Kartar Singh rather than having brushed aside its genuine rights reasoning, stepÂping back to stage one to uphold the validity of the statutes challenged? Second, does the invocation of this doctrine under the powers conferred by Art. 142 not contradict the argument that judges have relied upon expansive interpretation of constitutional provisions only to increase judicial power? Both these attractive arguments are misconceived.
On the first issue, invoking the doctrine of prospective overruling in Naz Foundation, the Sharma cases, and Kartar Singh would not have solved the Indian Supreme Court's concerns with the invocation of the power to strike down legislation. The Court's concerns in these cases were not restricted to the impact of the decision on past conduct. In the Sharma cases and Kartar Singh, the Court would have been perturbed by the impact of a strike down on the functioning of the RTIA and TADA, respectively. In Naz Foundation, the Court was (albeit misguidedly) concerned about the collateral consequences following a decision that section 377 of the IPC was unconstitutional and invalid.
The response to the second question is that although the doctrine of prospective overruling limits the impact of the judicial decision in question, the case that imported[817] the doctrine into India involved a dramatic expansion of general judicial powers. In Golak Nath v. State of Punjab,[818] the Indian Supreme Court held that Parliament had no power to amend the fundamental rights set out in Chapter III of the Constitution, overturning existing precedent[819] holding that Parliament was permitted to amend any provision of the Constitution. Hence, for the first time, the Court effectively assumed the power to strike down all amendments to Part III of the Constitution.[820] Within this context, the majority in Golak Nath invoked the doctrine of prospective overÂruling to avoid the complexities that would have resulted from previÂous amendments to Part III being called into question. Therefore, the narrative of expansive construction of constitutional provisions has remained confined to cases in which the Indian Supreme Court has augmented its general powers, most often by broadening the scope of judicial review.
Institutional Constraints
In addition to the textual constraints noted above, the Indian Supreme Court's scope to employ devices that temper the exercise of the power to strike down legislation is also constrained by institutional factors. Even in cases where the Court has sought to prompt legislative change through some form of 'advice-giving',[821] Parliament has either failed to respond, or taken an agonizing amount of time to respond, to the Court's advice. In Vishaka v. State of Rajasthan,[822] a public interest litigaÂtion case, the Court issued a list of guidelines for the prevention of sexual harassment of women in the workplace. The Indian Supreme Court recognized that the primary responsibility of ensuring the safety
of women lay with the legislature and the executive, and stated that its guidelines would remain in force only until Parliament enacted suitÂable legislation to plug the existing legislative vacuum.[823] These seemÂingly stop-gap (and in hindsight, poorly implemented[824]) guidelines remained in force for over 16 years, until Parliament finally enacted legislation[825] on the subject.
Another example is State of MP v. Shyam Sunder Trivedi,[826] where the Indian Supreme Court lamented the frequency of the torture and murder of suspected criminals in police custody, and urged the governÂment and Parliament to consider implementing a Law Commission recommendation[827] to transfer the evidential burden of proof on to the defendant police officer once it was established that bodily injury was caused to a person in police custody. In spite of reminders from the Bench,[828] this recommendation has not been implemented.
Unlike the declaration of incompatibility in the UK, informal 'nudges' to the legislature in India lack institutional grounding. A declaration of incompatibility is not just a freewheeling judicial asserÂtion that primary legislation is inconsistent with Convention rights— it forms part of an institutional network set up under the HRA. The Strasbourg Court comprises an important part of this institutional network: a finding from the Court that the UK law is incompatible with Convention rights (which is very likely if a declaration of incompatÂibility has been made by a domestic court) renders the UK in breach of its international law obligations. The JCHR closely monitors responses to declarations of incompatibility made by domestic courts and adverse decisions against the UK by the Strasbourg Court.[829]
As Sathanapally argues, the JCHR engages in 'sustained, critical correspondence' with government departments over their responses to declarations of incompatibility.[830] Declarations of incompatibilÂity, along with JCHR reports tracking responses to such declarations, receive generous press coverage.[831] This institutional grounding of the declaration of incompatibility ensures that first, there is clarity about the matter in respect of which a declaration of incompatibility has been made, and second, there are effective monitoring and accountability mechanisms to track the government's responses to declarations of incompatibility. The role of the JCHR and the Strasbourg Court in addÂing institutional bite to the declaration of incompatibility is considered at length in Chapter 5.
In contrast, the Indian Supreme Court's informal advice to change the law lacks the institutional bite given to the declaration of incomÂpatibility by the Strasbourg Court and the JCHR. There is neither any comparable international mechanism in India, nor any monitoring body that systematically holds the government accountable for compliÂance with informal recommendations of the Indian Supreme Court. Courts are institutionally unequipped to monitor the government or Parliament's responses to judgments that find primary legislation to be inconsistent with human rights.[832]
Structural factors also impact upon the efficacy of the Court's recomÂmendations. The Court speaks too much and in too many voices. The total number of cases it decides annually is close to 700 times that of the UK Supreme Court.[833] Decision-making in the court is diffuse—the 31-member Court usually sits in benches of two or three judges.[834] This makes it challenging for academia, mainstream media, and civil society to keep up with informal judicial recommendations to change the law and hold governments to account for their responses to such recommendations.[835] These structural features accentuate the 'legislaÂtive lag'[836] that is inevitable following most exercises of judicial review. All these factors suggest that the Court could not have been confident of a prompt (or indeed, any) legislative response if it chose to make suspended declarations of invalidity (or to suspend the effects of the power to strike down) in cases like Naz Foundation, the Sharma cases, and Kartar Singh. Further, the Indian Supreme Court is also likely to remain conscious of the fact that since advice to the legislature is not binding, it may be disregarded,[837] directly undermining the authority and legitimacy of its 'advisory' role.
The arguments that have been made thus far might come across as slightly surprising to close observers of the Indian Supreme Court's human rights' jurisprudence. It has sometimes been christened as the world's most powerful court,[838] ahead even of the court that generates the most academic commentary—the US Supreme Court. Scholars such as Fredman,[839] Shripati,[840] and Kothari,[841] have lauded the court's ability to expand its range of constitutional remedies to effectively proÂtect socio-economic rights. These remedies include the quite remarkÂable writ of 'continuing mandamus', enabling the Court to supervise the implementation of its orders.[842] The Court has signalled a willingÂness to hold government officials that fail to comply with its orders in contempt of court.[843]
However, in spite of the Indian Supreme Court's relative success in adapting its range of remedies to secure executive compliance with socio-economic rights, primary legislation that is inconsistent with fundamental rights is of an entirely different order. It is inconceivable for the Supreme Court to direct Parliament, by way of a mandatory order, to introduce fresh legislation or amend existing legislation to secure compliance with human rights.[844] The only alternative for the Court is to urge the government and Parliament, through soft admoniÂtion, censure, or advice, to change the law to secure a more satisfactory outcome from a human rights perspective. Such admonition does not carry contempt sanctions and Parliament's cognizance of it cannot be supervised. Thus, the Indian Supreme Court's considerable remedial discretion in many socio-economic rights cases does not carry over to cases where primary legislation is found inconsistent with human rights.
Overall, these constraints indicate that the Indian Supreme Court would be reluctant to exercise remedial discretion in contexts like the Sharma cases, Naz Foundation, and Kartar Singh. As noted above, the Court's exercise of remedial discretion is constrained by constiÂtutional text. Institutional factors suggest that even if the Court were to exercise remedial discretion in such cases, it would be unlikely to precipitate a change (or at the least, a reasonably swift change) in the law. The Court would remain conscious of the fact that Parliament and the government's failure to take heed of informal declarations of incompatibility could impact upon its institutional legitimacy. In cases where Parliament ignores informal declarations of incompatibility, the affected class of citizens would remain in the same position as they would have been had there been no such declaration.
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The nature and consequences of the power (or more fittingly, duty) to strike down legislation influences the behaviour of Indian courts in the process of reviewing legislation for compliance with constitutional rights.[845] Cases in which a declaration of incompatibility is made in the UK and which, formally speaking, are expected to correspond with the exercise of the power to strike down legislation in India, produce asymmetrical results in practice. Confronted with the prospect of stifling legislation that has a strong and relatively recent democratic mandate, causing serious collateral damage to the legislative matrix, or jettisoning legislation that is an important part of the national security apparatus, Indian courts have reluctantly reconsidered the validity of a statute under challenge. This produces a disguised form of rights reaÂsoning that replaces the Court's genuine understanding of rights with an understanding that enables it to avoid striking down legislation. In similar situations, courts in the UK have expressed their genuine underÂstanding of rights by making a declaration of incompatibility, leaving it to Parliament and the government to address the inconsistency with Convention rights. This dynamic offers an alternative account for the superiority of the new model of judicial review over the old model— one that concerns the inability of courts to express their genuine rights reasoning under the old model, rather than the ability of legislatures to do so under the new model.
The Indian Supreme Court may be unwilling to issue informal declarations of incompatibility, suspended declarations of invalidity, or invoke other intermediate remedies by virtue of textual constraints. More importantly, however, institutional constraints suggest that even if it were to do so, the Indian Parliament and government are unlikely to respond in the manner that the Court would hope. This is in contrast with the declaration of incompatibility in the UK, which is given institutional purchase by the JCHR (which holds the government to account for responses to declarations of incompatibility) and the Strasbourg Court (which transforms matters of domestic parliamentary discretion into international obligations). The institutional purchase of declarations of incompatibility under the HRA, compared to that accompanying intermediate remedies falling short of the power to strike down legislation in India, is analysed in detail in Chapter 5.