The Three-stage Process of Review

Stage One: Ordinary Methods of Interpretation

The first stage in reviewing legislation for compliance with rights entails an examination of whether the statutory provisions, according to ordinary principles of interpretation, are consistent with the rights in question.

In India, courts deciding cases involving a challenge to legislation presume, as a starting point, that the impugned legislation is consti­tutionally valid. This presumption takes different forms. The Supreme Court has frequently acknowledged that it must presume that the legis­lature, on account of its institutional position, understands and appreci­ates the needs of its people, that its laws are directed to problems made manifest by experience, and that even its discrimination and classifica­tions are based on adequate grounds.^[587] In order to avoid a 'doctrinaire approach' which might 'choke all beneficial legislation',^[588] courts have placed the burden of showing that there has been a clear transgression of fundamental rights on the litigant that challenges the statute.^[589]

The court can consider matters of common knowledge, matters of common report, and the history of the times at which the statute was enacted in order to sustain the presumption of constitutionality.^[590] It may also assume every state of facts that can be considered to exist at the time of enactment of the statute.^[591] The presumption of constitu­tionality holds greater influence in the review of economic and social legislation as against statutes that affect civil liberties.^[592] According to the Indian Supreme Court, there is much to learn from the Lochner era in the US and courts should be slow to interfere with legislative decisions on economic policy.^[593]

In India, the presumption of constitutionality influences the inter­pretation of legislation under constitutional challenge.

Similarly, in the UK, courts begin their analysis by interpreting leg­islation that is being reviewed under the HRA in the ordinary way. In other words, they seek to discern the intention of Parliament through a prima facie interpretation in order to determine whether the legislation is proportionate and compliant with Convention rights.^[596] Section 3 of the HRA is ignored unless the legislation would, adopting these traditional methods of interpretation, breach Convention rights.^[597]

These methods of interpretation include looking to the context of the legislation where its plain meaning is not clear.^[598] Further, courts apply the presumption that the legislature did not intend to place the UK in breach of its international obligations.^[599]

Stage Two: Special Methods of Interpretation

In India, the next stage arises when courts conclude that legislation, on ordinary principles of interpretation, is not compliant with fundamen­tal rights. Courts have held that at this stage, where statutory language permits, the impugned provisions should be read down or interpreted restrictively to make them fall within constitutional limits.^[600] This is called the doctrine of 'reading down' or 'severability in application', which allows courts to restrict the application of a statutory provision to those areas in which it would be constitutionally permissible, omit­ting its application to areas in which it would transgress constitutional limits.

If, on the other hand, the unconstitutional spheres of application are in separate and distinct textual provisions from the constitutionally valid spheres of application, the court may sever or disapply the former, without affecting the operation of the latter. This is called 'severability in form'. Thus, for both kinds of severability, the principal question is whether the invalid portion of a statute can be separated from the valid portion (either textually or in terms of the breadth of its applica­tion). Severability is based on the presumed intention of the Indian Parliament that when a part of a statute is void, that should not affect the rest of the statute.^[601]

In the UK, after courts decide that primary legislation is prima facie incompatible with Convention rights, they are tasked with deciding whether it can be read compatibly with Convention rights. Section 3 of the HRA directs courts to read and give effect to primary and sub­ordinate legislation in a manner that is compatible with Convention rights, 'so far as it is possible to do so'. It applies to existing legislation and legislation passed after the enforcement of the HRA.^[602] Section 3 enhanced the influence of Convention rights in the process of inter­pretation—rather than simply having to take them into account while interpreting ambiguous legislative provisions, courts would be required to interpret legislation so as to uphold Convention rights unless the legislation was so clearly incompatible that it would be impossible to do so.^[603]

In the early years of the HRA, some scholars argued that on a proper understanding, section 3 marked a shift in the focus of courts from upholding parliamentary intention to interpreting legislation in a Convention-compliant manner, even if doing so was artificial and went beyond the intent of lawmakers.^[604] This argument requires qualifica­tion.

British courts have adopted the interpretive techniques of 'reading down'^[608] and 'reading in'^[609] in order to protect legislation from trans­gressing Convention rights.^[610] As Lord Steyn observed in R v. A (No 2),^[611] section 3 permits the courts to strain statutory language, read down express language, and imply provisions to promote compliance with Convention rights. However, courts cannot depart from a fundamental feature of a statute^[612] or radically alter its effect^[613] as this breaches the boundary between interpretation and amendment. Nor can courts, through an act of 'judicial vandalism', squarely contradict parliamen­tary intent.^[614] In the House of Lords' seminal judgment in Ghaidan, it was emphasized by the majority that the limits of the application of section 3 extend up to the conceptual scheme of the statute rather than the precise language used by parliamentary draftsmen to give effect to that scheme.^[615] Moreover, courts are not required to make decisions for which they are not institutionally equipped.^[616]

What is discernible from the case law is that courts in the UK remain context sensitive when determining the extent to which they are will­ing to mould statutory language and purpose.^[617] This was made clear by Lord Hoffman's observation in Wilkinson that section 3 was not intended to 'have the effect of requiring the courts to give the language of statutes acontextual meanings'.^[618] Thus, developing a self-standing test independent of context would probably be a futile exercise.^[619]

Stage Three: Striking Down Legislation and Declarations of Incompatibility

In India, courts approach the third stage after concluding that it is not possible, based on available interpretive techniques, to read legislation in compliance with rights. At the third stage, courts exercise their power to strike down legislation.

In the UK, the third stage entails the court deciding whether it should make a declaration of incompatibility under section 4 of the HRA.^[621] Section 4 empowers courts^[622] to issue a declaration of incompatibility when legislation,^[623] which cannot be interpreted in a Convention-compliant manner, is inconsistent with a Convention right. As explained in earlier chapters, a declaration of incompatibility is not binding on the parties to the proceeding and 'does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given'.^[624] In other words, it does not give rise to an automatic legal benefit for the litigant and has no immediate effect on their legal rights.^[625] However, it is an important form of political and moral sanction and invites Parliament and the government to address the incompatibility. It also triggers a statutory power to enable a min­ister to take fast-track remedial action. Under section 10 of the HRA, a minister of the Crown may, if he finds compelling reasons to do so, make amendments to legislation as he considers necessary to remove the incompatibility identified by a declaration under section 4 of the HRA.^[626] Unless it is declared urgent, a remedial order can only be made when a draft of the order has been approved by a resolution of each House of Parliament.^[627]

Progressing from Stage Two to Stage Three

The major distinction between the three-stage analysis conducted in India and the UK is the point at which courts progress from stage two to stage three. Two factors indicate that stage two is prolonged in the UK, since courts in the UK have a larger interpretive toolbox at their disposal than their Indian counterparts.

Second, Indian courts consider the language of the statute a pivotal factor in determining whether a rights-complaint interpretation is pos­sible. In a frequently cited passage, the Indian Supreme Court observed that where a statutory provision cannot be saved because its plain mean­ing is clear, courts should not be hesitant to strike it down.^[630] Although striking down a statute is a measure of last resort,^[631] Indian courts do not protect legislation from constitutional challenge by distorting or contradicting statutory language.^[632] This position stands in contrast with courts in the UK, which consider the broad scheme and essential features (rather than the language) of the statute as decisive in determin­ing whether it can be read in compliance with Convention rights.^[633]

The fact that British courts have a larger range of interpretive tools at their disposal suggests that the power to strike down legislation triggers earlier in India than the power to make a declaration of incompatibility does in the UK. This means that, hypothetically speaking and ceteris paribus, there would be identical cases in which section 3 of the HRA is invoked to read legislation in a Convention-compliant manner in the UK but in which the legislation is struck down in India.^[634] Taking this idea further, cases in which UK courts declare legislation incompat­ible would be expected to correspond with cases in which the power to strike down legislation is invoked in India.

It is worth considering an example reflecting the argument that stage three is triggered earlier in India than it is in the UK. The House of Lords (in Hammond)^[635] and the Indian Supreme Court (in Bidhannagar Welfare Association)^[636] were confronted with a common question—could a stat­utory provision which expressly or by necessary implication excluded the right to a pre-decisional oral hearing be interpreted to allow an oral hearing in certain circumstances? Hammond^[637] concerned a provision^[638] of the Criminal Justice Act, 2003 enabling prisoners subjected to man­datory life sentences to apply to a high court judge for reconsideration of the 'tariff^[639] set for them by the home secretary. The statutory provi­sion categorically stated that such applications were to be determined 'without an oral hearing'.^[640] However, the possibility of appealing from the High Court's decision to the Court of Appeal (where the prisoner would secure an oral hearing) remained open.

The claimant contended that by denying him an oral hearing at first instance, this statutory provision was incompatible with his right to a fair trial under Art. 6 of the Convention. The House of Lords agreed, holding that notwithstanding the possibility of an appeal, the denial of an oral hearing at first instance breached Art. 6. Relying on section 3 of the HRA, it confirmed the Divisional Court's decision to read the statutory provision as permitting an oral hearing where it was necessary to meet the requirements of fairness. So even though the language of the statute contained a blanket prohibition on oral hearings, the House effectively interpreted the statutory provision so as to allow oral hear­ings in a narrow category of cases.^[641]

On the other hand, Bidhannagar involved a constitutional challenge to state legislation^[642] that regulated the valuation of lands for the assess­ment of property tax. The statute that was challenged excluded provi­sions in earlier legislation^[643] that allowed an oral hearing to affected parties before a draft valuation was prepared. It was thus clear that by necessary implication, the amending statute had excluded the right to a pre-decisional hearing. The statute did, however, contain provisions for review of the original decision.

Mirroring the argument advanced by the British government in Hammond, the state government of West Bengal contended that the possibility of review cured the breach of the rules of natural justice at first instance. The Indian Supreme Court rejected this contention, hold­ing that generally, any order entailing civil consequences would need to be preceded by an opportunity of being heard.^[644] It cited precedent to the effect that a statutory provision could be construed so as require the observance of rules of natural justice as long as it was silent on the matter.^[645] However a statute that expressly or by necessary implica­tion excluded the rules of natural justice could not be read as including the rules of natural justice to protect it from being struck down. As a result, the Indian Supreme Court moved from stage two to stage three of the analysis to strike down the statute. Thus, in similar situations, the House of Lords relied on section 3 of the HRA and remained at stage two of the analysis in spite of contrary statutory language, whereas the Indian Supreme Court moved to stage three and struck down the statutory provision because of contrary statutory language.

This analysis, however, is not always borne out in practice: seemingly presented with no choice but to strike down a statute, Indian courts sometimes rethink the constitutionality of the statute and uphold it without taking recourse to special interpretive techniques. In other words, at the cusp of stage two and stage three, Indian courts some­times step back to stage one to reconsider the validity of the statute facing challenge, resulting in a situation in which courts disguise their real interpretation of rights with an alternative interpretation of rights. This unique process, and possible explanations for it, will be explored through three pairs of cases in the following section.