Declarations of Unconstitutionality in India and the U.K.: Comparing the Space for Political Response
71 Pages Posted: 18 Oct 2015 Last revised: 3 May 2016
Date Written: October 15, 2015
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. In recent years, this has been coupled with a proliferation of literature on political responses to judicial review. 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. The Article argues that the HRA does not enable legislatures to assert their understandings of rights more freely than judicial supremacy under the Indian Constitution. In fact, political practice shows that it is similarly burdensome to respond to declarations of incompatibility in the U.K. as it is to respond to strike-downs in India. In the Indian context, constitutional amendments of two kinds ("fundamental rights amendments" and "Ninth Schedule amendments") have been invoked by Parliament to respond to judgments striking down primary legislation. In the U.K., Parliament has some room for manoeuvre when responding to declarations of incompatibility, and even though no such declaration has yet been rejected outright, such a rejection cannot be ruled out.
Keywords: judicial review, Human Rights Act 1998, Indian Constitution, strike down power, declarations of incompatibility
JEL Classification: K10, K19
Suggested Citation: Suggested Citation