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Wednesday, December 08, 2021

For the People

This erudite book illuminates how judicial review of legislation empowers and protects democracy.

Written by Soli J. Sorabjee |
April 1, 2017 12:18:03 am
Balanced Constitutionalism, Chintan Chandrachud, law novel, democracy, democracy protection, indian express Balanced Constitutionalism: Courts and Legislatures in India and the United Kingdom

Name: Balanced Constitutionalism: Courts and Legislatures in India and the United Kingdom
Author: Chintan Chandrachud
Punlisher: Oxford University Press
352 pages
Price: Rs 995

Judicial review of legislation is a delicate and difficult function. The rationale for its exercise, in essence, is to protect the fundamental rights of the people. Judicial review is exercised by courts in the UK by issuing a declaration of incompatibility of the impugned legislation with the UK Human Rights Act 1998. Parliament is given an opportunity to usher legislation in conformity with the Human Rights Act.

In India, when legislation is adjudged to be in contravention of fundamental rights or other constitutional guarantees provided in the Constitution, it is struck down and declared null and void. Chintan Chandrachud in his book, Balanced Constitutionalism, analyses and compares the exercise of judicial review in both countries with admirable industry and insight.

Years ago, in the Federalist, the great American jurist Alexander Hamilton stated that “a Constitution is in fact, and must be, regarded by the judges as a fundamental law” and the judiciary’s conclusion that certain legislation is unconstitutional does not “suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature declared in its statutes, stands in opposition to that of the people declared in the constitution, the judges ought to be governed by the latter, rather than the former”. Hamilton’s perception is not shared widely in the UK and in India. The author sheds luminous light on the speed of political response to strike-downs in India and the speed of political responses to declarations of incompatibility in the UK. A useful comparison is made on the basis of facts and figures assiduously compiled.

Chandrachud opines that declarations of incompatibility are responded to in every case in the UK, whereas fundamental rights amendments and the Ninth Schedule amendments are invoked in India in only a small fraction of the cases. According to the author, the most common reaction of the Indian Parliament and the government to a judgment striking down primary legislation is to do nothing at all. Other factors such as the level of publicity of the judgment, reputational ramifications for the government, and capacity of the issue to capture the public imagination, are likely to influence governments in both jurisdictions to hasten or delay the response. The author does not accept the claim that the Westminster Parliament is able to revise judicial understandings of rights more quickly than the Indian Parliament. He concludes that available evidence suggests that when it wishes to do so, the Indian Parliament responds more swiftly to judgments striking down legislation than the Westminster Parliament responds to declarations of incompatibility. This section in the book is most interesting and also provocative.
Another major contribution made by Chandrachud is his analysis of the institutional environment in which constitutional remedies function. He explains that, at first glance, the declaration of incompatibility — a form of advice to the government — comes across as a weak remedy.

However, it is lent serious rigour by the institutions that function around it. The Parliamentary Joint Committee on Human Rights seeks frequent reports from the government, so that ignorance of these declarations is simply not a realistic option. On the other hand, the European Court of Human Rights, which litigants may apply to in the event that a declaration is not complied with, makes it extremely difficult for the British government to reject such a declaration. Chandrachud explains that advisory remedies issued by Indian courts lack the same traction. He offers examples of cases in which such advice from the Supreme Court of India has been ignored — most notably, when its recommendations to amend the Criminal Procedure Code went unheeded.

The range of issues covered by the book is extraordinary. It is marked by commendable research of two of the most complex and highly influential constitutional systems from around the world. Above all, Chandrachud’s views are expressed lucidly and are balanced, without any touch of arrogance or didacticism. The true merit of the book is its erudition and clarity of thought and expression. I must confess that my understanding of the various facets of judicial review and the reality of its operation has greatly improved and I am less ignorant of the subject after reading Chandrachud’s masterpiece. Judicial review is primarily concerned with the protection of the fundamental rights of the people, “the butcher, the baker and the candlestick maker”. The subject is not the lawyers’ monopoly and paradise. All thinking citizens of our multi-religious, multi-culture nation shall benefit immensely by its reading. The book is “worthy reading” particularly for our judges exercising judicial review and also for lawyers invoking judicial review.

The author is a former attorney general of India

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