Remedies of Duty or Discretion?
It is important to bear in mind that the cases from the Indian Supreme Court do not convey the idea that the statutes in question were 'unconÂstitutional yet nonetheless' would 'be accepted by the court'.[786] Although decisions of that kind would harbour problems of their own,[787] they would not involve a failure by the Court to express its genuine rights reasoning (even if that reasoning does not produce an outcome that the litigant expects).
In the Sharma cases, NazFoundation, and Kartar Singh, the Indian Supreme Court felt compelled to uphold the statutory provisions before it as constitutionally valid. The message that the Court was seeking to send in each of these cases was close to this: although we have serious constitutional concerns about the statutory provision that is challenged in this case, we will uphold it—therefore, the question of exercising the power to strike down legislation does not arise. This is because the 'power' to strike down legislation actually transforms into a 'duty' to do so once the court has found legislation unconstitutional. Judges have frequently acknowledged that they are duty-bound to strike down legislation that violates, and cannot be read consistently with, constitutional rights.[788]In contrast, the declaration of incompatibility under section 4 of the HRA has always been considered a discretionary remedy. The White Paper to the Human Rights Bill stated that the provision 'enables a formal declaration to be made that its provisions are incompatible with the Convention' (emphasis added).[789] Section 4(2) makes it plain that even once a court is satisfied that a provision of primary legislaÂtion is inconsistent with Convention rights, it 'may' make a declaration of that incompatibility. Some scholars predicted that in practice, this discretion would transform into a duty.[790] These predictions have not materialized, since there have been cases following the enactment of the HRA in which judges have found incompatibilities but refused to make declarations of incompatibility.[791] Prominent among these is Nicklinson,[792] in which the Supreme Court was tasked with deciding whether the English law criminalizing assisted suicide[793] violated the right to privacy under Art. 8 of the Convention, and whether a code published by the Director of Public Prosecutions,[794] on the prosecution of those who assisted suicide, was lawful.
Three of the judges (Lords Neuberger, Mance, and Wilson) acknowledged that even if the law, as it stood, was incompatible with Convention rights and could not be given a rights-compliant interpretation, no declaration of incompatÂibility would be issued. Lord Neuberger explained:[795]It would, of course, be unusual for a court to hold that a statutory proviÂsion, conventionally construed, infringed a Convention right and could not be construed compatibly with it, and yet to refuse to make a declaraÂtion under section 4 of the 1998 Act. However, there can be no doubt that there is such a power: section 4(2) states that if there is an incompatÂibility, the court 'may' make a declaration to that effect, and the power to grant declaratory relief is anyway inherently discretionary. The possibility of not granting a declaration of incompatibility to enable the legislature to consider the position is by no means a novel notion.
This remedial difference effectively means that for courts in the UK, rights reasoning need not necessarily align with the remedy chosen by the court. In other words, the court may well, on the basis of its genuine rights reasoning, find a provision of primary legislation inconÂsistent with a Convention right but choose not to make a declaration of incompatibility. Indian courts, on the other hand, do not have the liberty to decouple the right from the remedy in this way, resulting in a situation in which they are compelled to tuck away their genuine rights reasoning in cases in which there is no interpretive solution and where they wish to avoid exercising the power to strike down legislation.