Remedial Space in India and the UK

Comparing the remedial space available in India and the UK is slightly more complicated. Once again, an important difference between the HRA and the Indian Constitution bears implications for the manner in which remedial space should be understood in these jurisdictions.

In the Indian context, remedial space refers to the legal mode (fun­damental rights amendments and Ninth Schedule amendments) and substantive means available to Parliament and the government in responding to judgments striking down legislation. This refers to the room for manoeuvre available to the Indian Parliament and government once they have decided to respond to a judgment striking down legislation.

At first glance, this looks like a comparison between unequals, on the footing that it is implausible to compare responses to declarations of incompatibility which seek to comply with human rights decisions of courts in the UK, with responses to legislation being struck down in India, which detract from (rather than advance) judicial decisions strik­ing down legislation. But this approach fails to appreciate the nuances of what actually takes place when a declaration of incompatibility is made. In the UK, although the remedial order or legislation address­ing a declaration of incompatibility seeks to put the court's judgment into effect, it may also provide the opportunity for Parliament and the government to calibrate their response to the court's judgment, by addressing the incompatibility in a way that does not fully give effect to the judgment or does so in a limited way.^[511]

The Westminster Parliament's response to the declarations of incom­patibility made in Morris^[512] and Gabaj,^[513] which declared section 185(4) of the Housing Act, 1996 incompatible with the anti-discrimination provision under Art.

It has been argued earlier in the book that the remedial space avail­able to Parliament and the government in the UK is narrower than that often assumed by scholars. Two principal reasons were provided. First, some declarations of incompatibility are so narrowly framed that they leave little room for manoeuvre. Second, soft suggestions made in judg­ments declaring primary legislation incompatible exercise a guiding influence on the manner and the mode by which an incompatibility may be addressed. In India, Parliament has employed two response mechanisms to reject judgments striking down legislation: fundamen­tal rights amendments and Ninth Schedule amendments.

Both these response mechanisms can themselves be subjected to judicial review, but the test for reviewing them varies. While fundamen­tal rights amendments are subjected to the 'essence of rights test', Ninth Schedule amendments are subjected to the 'rights test'. In being able to select which of these response mechanisms to invoke after primary legislation is struck down, Parliament is also in a position to decide which test for review should be applicable to its response. It would, of course, be likely to choose the test that is expected to withstand chal­lenge in court. Parliament may also, as it has done in the past,^[515] invoke both response mechanisms in conjunction to give the amendment the best chance of withstanding judicial review.

Another important factor strategically influences the Indian Parliament's choice between these two response mechanisms.

The substantive options before the Indian Parliament in respond­ing to judgments striking down legislation are more limited. Ninth Schedule amendments are not particularly conducive to making mea­sured responses to judgments striking down legislation. This is because of the fact that Art. 31B of the Indian Constitution is not based on any underlying legal logic^[516]; it simply removes the substratum of the judgment by insulating a previously invalidated statute from judicial review for violating fundamental rights. It is for this very reason that at the time of the Ninth Schedule's introduction, some MPs criticized it on the basis that it was not a transparent way of nullifying judgments.^[517] In practice, the Ninth Schedule has represented an 'all or noth­ing' tool, presenting the government with the binary choice of either accepting a judicial decision striking down legislation or rejecting it altogether by inserting the whole statute into the Ninth Schedule (that is, if it has the political capability of securing the passage of a constitu­tional amendment in Parliament).

The second response mechanism, fundamental rights amendments, has represented a similarly blunt tool. Since such amendments pull the rug from under the court's judgment by altering the fundamental right on which it was based, they have also tended to assume the form of absolute reversals of judgments striking down legislation.^[519] The First Amendment to the Constitution, through which the constitutionally permissible restrictions on the freedom of speech were expanded in order to revive a statutory provision^[520] invalidated by the Patna High Court in Shaila Bala Devi v. Chief Secretary,^[521] is an example. Having said that, other response mechanisms (not requiring parliamentary supermajorities), such as ordinary legislation, ordinances, or review petitions, may fill part of the remedial gap in India by offering the government a more subtle method of responding to judgments striking down legislation, similar to that of the British government.

Overall, governments in both the UK and India have some remedial space in deciding how to respond to declarations of incompatibility or judgments striking down legislation (whether through remedial orders or legislation in the UK and fundamental rights amendments or Ninth Schedule amendments in India). In the UK, this remedial space may be subject to the guiding influence of the court's opinion about which remedial measure should be employed to address the incompatibility. With regard to the substantive options available to Parliament and the government, the menu of possibilities available to respond to a declaration of incompatibility in the UK is wide, but may be partly narrowed by the soft suggestions made by the court in its decision. In India, on the other hand, both fundamental rights amendments and Ninth Schedule amendments tend to eliminate the substratum of judg­ments altogether, either restoring the statute in question to the state that it was in before the court's judgment or paving the way for the fresh enactment of an identical or substantially similar statute. Indian governments may turn to the other response mechanisms to offer more nuanced responses to judgments striking down legislation.