Declarations of Unconstitutionality in India and the U.k.: Comparing the Space for Political Response

• Publication year: 2015

Declarations of Unconstitutionality in India and the U.K.: Comparing the Space for Political Response

Chintan Chandrachud^*

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TABLE OF CONTENTS

I. INTRODUCTION...............................................................................311

II. CONSTITUTIONAL REMEDIES IN INDIA AND THE U.K......................314

A. India.........................................................................................314

1. The Presumption of Constitutionality and Its Impact on Statutory Interpretation................................................315
2. The Power to Make Declarations of Unconstitutionality .... 317
3. The Relationship Between Statutory Interpretation and Declarations of Unconstitutionality...................................318

B. The U.K....................................................................................318

1. The Interpretive Power under Section 3............................319
2. Declarations of Unconstitutionality: HRA Section 4.........321
3. The Relationship Between Sections 3 and 4......................323
4. The Three Stage Process of Review...................................324

III. INDIA: POLITICAL RESPONSES TO DECLARATIONS OF UNCONSTITUTIONALITY.................................................................326

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A. Fundamental Rights Amendments............................................327

1. The Nature of the Amending Power...................................327
2. The Doctrine of Eclipse and Specific Savings Clauses......329
3. Fundamental Rights Amendments as a Response Mechanism .........................................................................332
4. Scope and Limitations of the Amending Power.................337

B. Ninth Schedule Amendments....................................................341

1. Article 31B and the Ninth Schedule...................................341
2. The Ninth Schedule as a Parliamentary Response Mechanism.........................................................................342
3. Reconciling the Conflict Between the Basic Structure Case and the Ninth Schedule.............................................344

C. Assessing the Space for Parliamentary Response After Coelho......................................................................................346

IV. THE U.K.: POLITICAL RESPONSES TO DECLARATIONS OF UNCONSTITUTIONALITY.................................................................349

A. Two Connotations of Space......................................................349
B. Declarations of Unconstitutionality in Practice....................... 350

1. Section 4 of the HRA.......................................................... 350
2. The Impact of Section 4 on the Legislative Process........... 351
3. The Nexus Between Declarations of Unconstitutionality and Expected Responses .................... 356

C. Responses to Declarations of Unconstitutionality ................... 362

1. The Limited Decisional Space and Remedial Space of Parliament and Government.............................................. 362
2. The Strasbourg Court Dimension ...................................... 366
3. A Constitutional Convention or Atrophy of Constitutional Power ......................................................... 368

V. A COMPARISON OF THE SPACE AVAILABLE FOR POLITICAL RESPONSES...................................................................................... 370

A. Comparing Decisional Space in India and the U.K................. 371
B. Remedial Space in India and the U.K.: The Room for Maneuver ..................................................................................... 374
C. The Capacity to Respond: The Constitutional Convention Question ....................................................................................... 377

VI. CONCLUSION ...................................................................................380

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I. Introduction

Judicial review enables constitutional courts to test primary legislation for compliance with fundamental rights. The form in which judicial review manifests itself has been a subject of widespread academic scholarship for decades.¹ In recent years, this has been coupled with a proliferation of literature on political responses to judicial review.² Scholars have begun to ask whether, when, and how governments and legislatures should respond to judgments holding legislation unconstitutional.

This Article seeks to contribute to the scholarship in this upcoming sphere of political responses to judicial review. The focus will be on two jurisdictions, which lie on opposite ends of the "strong form-weak form" spectrum of judicial review—India and the United Kingdom. Indian courts, like their United States counterparts,³ have the power to "strike down" any legislation that fails to comply with constitutional rights—a strong form power of judicial review which many perceive to place courts in the driving seat of constitutional politics. However, under the U.K. Human Rights Act 1998 (HRA), courts can only make a non-binding declaration of incompatibility when legislation passed by Parliament is incompliant with the rights under the European Convention on Human Rights (Convention).⁴ This form of review is commonly considered weak, since it permits Westminster Parliament to decide what, if anything, to do about the incompatibility. Although there are vibrant streams of constitutional scholarship in both jurisdictions, no recent academic work has explicitly compared political responses to judicial review in India and the U.K.

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Throughout this Article, "declarations of unconstitutionality" will be employed as a jurisdiction-neutral expression to encompass two distinct constitutional remedies: the power to strike down legislation in India and to make declarations of incompatibility in the U.K. It is worth acknowledging that these remedies have different effects: one leads to the immediate disapplication of the statute while the other has no automatic legal consequence.⁵ Having said that, in both India and the U.K., courts are empowered to find legislation unconstitutional, notwithstanding that the consequences of such findings vary. Courts in both jurisdictions perceive this as an accurate depiction of the judiciary's role.⁶

Certain points of contrast in the constitutional systems of India and the U.K. make a comparison between the two interesting. The power to strike down legislation that is inconsistent with India's Constitution of 1949 is considered an exposition of strong form "U.S.-style" judicial review. The constitutional context to this power is supplied by the increasing influence and legitimacy of Indian courts in recent decades, prompting scholars to christen India as a "juristocracy"⁷ or a state characterized by judicial sovereignty⁸ or supremacy,⁹ and even "judicial dictatorship."¹⁰ On the other hand, declarations of incompatibility under the HRA, which were intentionally kept advisory in effect, are considered an exemplar of weak form judicial review. The HRA forms a cornerstone of U.K.'s multi-layered¹¹ uncodified¹² constitutional system and is ascribed different labels—

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among them, the "new commonwealth model of constitutionalism,"¹³ the "third wave bill of rights,"¹⁴ the "democratic dialogue" model¹⁵ and the "parliamentary bill of rights"¹⁶ model. Parliamentary sovereignty, which has long remained one of the main planks of British constitutional discourse, continues to raise its head in discussions on the HRA in general, and section 4 in particular.¹⁷ These two dichotomies, strong form review versus weak form review and judicial supremacy versus parliamentary sovereignty, provide a fascinating canvass for comparisons of political responses to declarations of unconstitutionality. The findings of this article tend to call into question, or at least undermine the force of, these dichotomies.

The notion of the space available for political responses to declarations of unconstitutionality is the dominant theme of this Article. "Space" is an open textured term susceptible to a range of different meanings. With the objective of sustaining a consistent focus, it will be ascribed two distinct connotations. The first connotation of "space," which will be referred to as decisional space, asks the "whether" question—can political actors in both jurisdictions respond to declarations of unconstitutionality to begin with? The second connotation, remedial space, asks the "how" question—what are the different ways in which political actors can respond to declarations of unconstitutionality?

With this background, the Article will proceed as follows. Part II lays the foundation by briefly examining the toolkit of constitutional remedies available to Indian and U.K. courts when they find that primary legislation contravenes fundamental rights under the Indian Constitution and Convention rights respectively. Part III focuses on two mechanisms through which the Parliament of India has responded to declarations of unconstitutionality: fundamental rights amendments and Ninth Schedule

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amendments. Part IV briefly studies declarations of unconstitutionality in the U.K., before determining the space available to Parliament and government for responding to such declarations. Part v brings together the two preceding sections by analytically comparing the space for political actors to respond to declarations of unconstitutionality in India and the U.K. Concluding comments are made in the final section.

II. CONSTITUTIONAL REMEDIES IN INDIA AND THE U.K.

A comparison of the space available for political responses to declarations of unconstitutionality in India and the U.K. cannot be meaningful without situating such declarations in their constitutional context. This Part seeks to supply that context by examining the toolkit of constitutional remedies available to courts in India and the U.K. for legislative transgressions of the...