The book examines how the “new” model of judicial review present in England and Wales compares with the traditional model of rights based judicial review in India. This is based on the nature of the remedy, and institutions which implement the remedy.
In England and Wales, when state action is challenged judicially as being incompatible with the HRA, courts are empowered to issue a declaration of incompatibility. Instead of striking down legislation, courts send it back to the legislature, which then has the power to respond. It thus provides for a division of powers between the legislature and the judiciary. Chandrachud argues that Indian courts, on the other hand, are reluctant to strike down legislation since they regard this as directly opposing the legislature; at the same time, informal recommendations lack the authority that accompanies a declaration of incompatibility. Thus intermediate remedies, such as those provided under the new model. are preferable to the traditional model.
Importantly, Chandrachud goes on to suggest that a “balanced” model of constitutionalism does not focus solely on the nature of remedy but also on the political and institutional factors that influence such decisions. In order to understand these differences, he explores the institutional constraints regulating the relationship between the legislature and the judiciary. In the UK, the Joint Committee on Human Rights (JCHR) and the decisions of the European Court of Human Rights (ECtHR or Strasbourg Court) provide constraints on judicial review whereas in India, the National Human Rights Commission (NHRC) has the broad mandate of ensuring human rights compliance including the power to enquire into rights violations, review constitutional safeguards and engage in human rights education. The differences between these institutions are central to understanding their impact upon legislative change.
The JCHR is a parliamentary committee with the directive to scrutinize the Government’s response to court judgments concerning human rights. The JCHR reports to both Houses on the compatibility question, taking evidence from Ministers, government departments, NGOs, and legal experts and therefore, influences legislative responses. The process of oversight was rendered more transparent after 2006, when measures were taken to ensure that declarations of incompatibility should not be dealt with in secrecy by the government. On the other hand, the judgments of the ECtHR are more prescriptive. Chandrachud assesses that when it comes to ECtHR decisions, compliance by English courts is the norm, except where the Strasbourg Court’s rulings are considered to be based on a fundamental misunderstanding regarding UK Law.
In contrast to these institutions, in India, the NHRC is an autonomous body with a mandate that spreads across to individual complaints and informal advice-giving and follow ups. The diverse mandate of the NHRC has given it very limited success in ensuring legislative change. Further, the NHRC reports are not published unless they have been tabled in the Parliament and the composition of the NHRC makes it difficult for its recommendations to gain political traction. Based on these differences, Chandrachud concludes that the UK institutional model does not have a parallel in India.
In conclusion, the presentation provides an account of the effectiveness of upholding rights under different models of judicial review. It made me consider the plausibility of the new model in India. An import of the model would be challenging because of the difficulty in allowing judges to fully assert their interpretations of rights. Anti-defection law in India, by mandating strict adherence to the directions of the party Whip, leaves room for party politics to determine issues of human rights. An individual member may thus be prevented from voting against the party's command for fear of losing his constituency. A coalition government may further complicate matters with each political party directing its members differently. This shows that the more balanced model is not just determined by the remedy that is offered but also the political system in which the remedy operates.