The Twilight of Constitutionalism: Moving towards the Idea of Balanced Constitutionalism — Part I
The United Kingdom Supreme Court, in a short but significant judgment, decided that the prorogation of parliament by the Queen of England, acting on the advice of the Privy Council, was unlawful on the grounds of parliamentary sovereignty and democratic accountability. The aim of this article is not to examine the reasoning of the Court in this historic judgement which was truly a Kesavananda Bharati moment for the British court as pointed out by Prof. Upendra Baxi here. Instead, this piece aims to examine the alternate model of Right Protection which fructified with the setting up of the United Kingdom’s Supreme Court; the court which was set up to establish the abstract idea of Democratic Dialogue into the theories of constitutional adjudication(s). Dialogue’s influence, however is not confined to the UK’s Human Rights Act, 1998 (hereinafter “HRA”) or other Commonwealth or midway protections of human rights.
It has grown into in two different, yet converging directions. First, dialogue has been adopted as a means of resolving received tensions between different courts as well as those between the legislature and the courts. Second, dialogue has been elevated as a proposed new model of the constitution, capable of providing a midway position between legal and political constitutionalism.
During the second half of the twentieth century, constitutional designers were presented with a choice between two models for the protection of rights. Parliamentary sovereignty postulated that the legislator, rather than the courts, was the legitimate forum for safe guarding constitutional rights. On the other hand, the American model of judicial supremacy entrusted the courts with the power to review and strike down any rights-infringing legislation(s). Judicial supremacy proliferated swiftly across several nations (including India, France and Germany) in the aftermath of Second World War.
It became increasingly clear that each of these models for the protection of rights left something to be desired. Whereas parliamentary sovereignty imperiled the rights of those with inadequate representation in the legislative process, judicial supremacy gave rise to concerns based in democratic legitimacy and counter-majoritarianism. This imperfect binary prompted a novel experiment in constitutional design in parts of the Commonwealth, exemplified by HRA. For the first time, the British courts were empowered to review primary legislation on rights-based parameters.
The HRA provoked particular interest among scholars because, unlike parliamentary sovereignty and judicial supremacy, it offered a ‘balanced’ model for the protection of rights, which conferred courts with a limited power of review over legislation by way of deceleration of incompatibility. Under this model, right-based decision making was to be expected to be balanced amongst courts and legislature, rather than being lopsided in favor of either. The menu of options was no longer restricted to parliamentary sovereignty and judicial supremacy, but included parliamentary sovereignty as well as the two distinct model(s) of judicial review.
This piece will delve into the promise of new model against its performance in practice, by comparing judicial review under the HRA to an exemplar of the old model of judicial review — the Indian Constitution. Although HRA fosters a more balanced allocation of powers between the legislature and the courts than the Indian Constitution, it does so for a very different reason. Political practice suggests that legislature in the UK and India find it equally difficult to offer their conceptions of rights by rejecting declarations of incompatibility and judgements striking down legislations respectively. But HRA offers a novel alternative from the standpoint of balanced constitutionalism.
The nature of the remedy itself — the declaration of incompatibility — enables British courts to assert their genuine understanding of rights in situations in which Indian Courts find it difficult to do so. The Indian Supreme Court adjudicates in the shadow of the power to strike down legislations, masking its genuine rights reasoning with reasoning which enables it to avoid exercising the power altogether. The new model achieves greater balance not because it enables the legislature to assert its conception of rights more easily, but because it encourages courts to do so in circumstances that they would not have been able to under the old model.
This remedy has resulted into Democratic Dialogue and has become an increasingly interesting abstract in theories of Constitutionalism. Constitutionalism, it is suggested, is a process born of a reconfiguration of the political theory of constitutionalism. Traditionally conceived as a loose template against which the framework of government of the modern state might be drafted, constitutionalism is now being repackaged purely as an expression of liberal-legal constitutionalism and is presented as more or less free-standing set of norms. Those advocating a stronger protection of human rights draw on legal constitutionalism, with those advocating a weaker protection of rights drawing on political constitutionalism. Dialogue is presented as a means of squaring the circle, providing a protection of human rights that draws on the strength of both legal and political protection of human rights. This can be regarded either as providing a midway position between extreme versions of legal and political constitutionalism, or as providing a new, independent theory of constitutionalism which draws on, but is nevertheless distinct form, more moderate forms of legal and political constitutionalism which also recognize the need for the legislature and the judiciary to work together to protect human rights and to control executive.
The problems inherent in the constitutional democracy will be illuminating the current efforts of many majorly countries following the West-ministerial model of governance. The Rule of Law and Democracy corresponds to the two different concepts of liberty; the negative which makes liberty dependent on the curbing of authority; and the positive which makes it dependent on the exercise of authority. These two concepts of liberty are according to Isaiah Berlin, “two profoundly divergent and irreconcilable attitudes to the end of life.” The claim of each of them have, however, an equal right to be classed among the deepest interests of life.
The process of reviewing legislation for compliance with rights entails an examination of whether the statutory provisions, according to ordinary provisions of interpretation, are consistent with the rights in question. This involves a relatively straight-forward process of statutory interpretation based on settled common law principals. In both the jurisdictions, that is the India and the UK, if ordinary principals of interpretation render the legislation complaint with rights, the inquiry ends at this stage without the need to advance to stage two. The courts in India and the UK adopt a similar three-stage approach in reviewing legislations for compliance with substantive constitutional rights or rights under the Convention. They first examine whether the legislation is complaint with rights, based on ordinary methods of interpretation. If not then they determine whether the legislation can be upheld based on special interpretive techniques. In the UK, those techniques are specifically sanctioned by the section 3 of the HRA, which requires courts to give effect to legislation in a manner compliant with Conventional rights, ‘so far it is possible’ to do so.
In India, these special interpretive techniques have no specific textual grounding and have developed through case law. Finally, if legislation cannot be protected in this way, the Indian courts strike it down and the courts in the UK may choose to issue a declaration of incompatibility under section 4 of the HRA. In the context of this three-stage process of review, Indian courts have a smaller range of interpretative tools at their disposal than courts in the UK to interpret primary legislation in a manner compliant with human rights. Since Indian courts have a smaller interpretative toolbox, one would imagine that ceteris paribus, Indian courts’ power to strike down legislation would be triggered earlier than the power to issue a declaration of incompatibility arises in UK. Conversely, this propositions should also imply that in similar cases, declarations of incompatibility in the UK should correspond with exercises of the power to strike down legislation in India.
Case law, however, seems to narrate a different story. Faced with legislation that cannot be read compatibly with rights, Indian courts sometimes rethink their initial view that a statute is unconstitutional before choosing to strike it down, in situations in which British courts would make declaration of incompatibility. Indian courts, therefore, make their decisions about the rights implications of statutes in the shadow of power to strike down legislation, withholding their genuine understanding of rights from time to time. This piece relies upon a few examples, consisting of cases from India and the UK, as evidence of this claim.
In India, courts deciding cases involving a challenge to legislation presume, as a starting point, that the impugned legislation is constitutionality valid. This presumption takes different forms. The Indian Supreme Court in the case of State of Kerala v. N.M. Thomas and Municipal Corporation of Ahmedabad v. Usmanbhai has acknowledged that it must presume that the legislature, on account of its institutional positions, 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. In order to avoid a ‘doctrinaire approach’ which might choke all beneficial legislation, courts have placed the burden of showing that there has been a clear transgression of fundamental rights on the litigant that challenges the statute.
The Indian Supreme Court in the case of Sunil Batra v. Delhi Administration opined that, the presumption of constitutionality influences the interpretation of legislation under constitutional challenge. Where multiple interpretation of the statute is possible, courts have the functional flexibility to adopt the interpretation that complies with the constitutional mandate. The presumption of constitutionality can be rebutted with prima facie evidence that a statutory provision transgresses fundamental rights. It is then left to the state to establish that the provisions falls within the constitutional limits. Moreover the Apex court in India, has on some occasions leaned in favour of negating the presumption of constitutionality and employing the ‘strict scrutiny’ standard to test the validity of legislation, although the circumstances in which this standard may be invoked are unclear.
Similarly, in the UK, courts begin their analysis by interpreting legislation that is being reviewed under the HRA in ordinary way. According to Aileen Kavanagh, as she discusses the same in the her notable commentary Constitutional Review under the UK Human Rights Act, the court in the UK seek to discern the intention of parliament through a prima facie interpretation in order to determine whether the legislation is proportionate and compliant with conventional rights. In the case of Poplar Housing and Regeneration v. Donoghue and the decision of the UK’s Supreme Court in S v. L, Section 3 of the HRA is ignored unless the legislation would, adopting these traditional methods of interpretation, breach Constitutional rights. These methods of interpretation includes looking to the content of the legislation where its plain meaning is not clear. Further, courts apply the presumption that the legislation did not intend to place the UK in breach of its international obligation.
The nature and consequence of power (or more fittingly, duty) to strike down legislation influences the behavior of Indian courts in the process of reviewing legislations for compliance with constitutional rights. Cases in which a declaration of incompatibility is made in the UK and which, formally speaking, are expected to correspond with the exercise of power to strike down legislation in India, produce asymmetrical results in practice. Confronted with the prospect of shifting 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 the statute under challenge. In similar situations, the courts in UK have expressed their genuine understanding of rights by making a declaration of incompatibility, leaving it to Parliament and the government to address the inconsistency with Convention rights.
