Review: Balanced Constitutionalism by Chintan Chandrachud
A remarkably useful addition to the legal literature on comparative constitutional law. The book examines systems of judicial review in India and the UK.books Updated: Jun 17, 2017 08:54 IST
The recently published “Balanced Constitutionalism” by Chintan Chandrachud is a superb comparative study about the systems of judicial review in India and the U.K.
India’s Constitution, although substantially based on the Government of India’s Act, 1935, included a chapter on fundamental rights and our founding fathers gave the Supreme Court and the High Courts the right to strike down as unconstitutional any legislation which violated any of the fundamental rights. Indeed, the right to move the Supreme Court for enforcement of any of the fundamental rights is itself a fundamental right – Article 32. Dr. Ambedkar famously said that this article was the most important article and was the very heart and soul of our Constitution. Similar powers can be exercised by the High Courts as well under Article 226 – by what are popularly called writ petitions.
Soon after independence, these powers were exercised by the High Courts and the Supreme Courts in numerous cases to invalidate acquisition laws that paid farcical amounts as compensation and numerous other laws that violated fundamental rights like the right to free speech, religious freedoms and the right to carry on business. In this respect, India’s Constitution, though adopting the system of Parliamentary democracy on the Westminster model, conferred powers of judicial review as prevailing in the USA. Like our courts, the Supreme Court and the Federal Courts in the United States have also invalidated numerous Federal and state laws.
Chandrachud points out that the United Kingdom has no canonical constitutional document but has a patchwork of laws and conventions that include the Magna Carta, 1297, the Bill of Rights Act, 1689, the European Communities Act, 1972 and the Constitutional Reforms Act, 2005. The result is that any law passed by Parliament can never be declared “unconstitutional” by the UK. Supreme Court or other superior courts. The major consequence of parliamentary sovereignty is that the UK has no constitutional guarantees.
The author lucidly traces the events that began after the Second World War and in the aftermath of the atrocities perpetrated by Nazi Germany. Although UK was the first country to ratify the European Convention for the Protection of Human Rights and Fundamental Freedoms, 1950 that protected civil and political rights, it took almost 50 years for it to pass the Human Rights Act, 1998 that made these rights enforceable, albeit in a limited way. For the first time, British Courts had the power to judicially review Parliamentary laws. Without question, this was perhaps the most important judicial reforms in the constitutional and political history of the UK.
Chandrachud then makes a masterly comparison between the two systems of judicial review. While Indian Courts can strike down legislation, the UK Courts can only make a “declaration of incompatibility”. Even after such a declaration, it is for British Parliament to either accept the “declaration” and make a suitable amendment or ignore the declaration and make no change to the law.
Which system is better? What are the benefits and shortcomings of each? Chandrachud elaborately discusses the political responses in both countries to their respective system of judicial review. The book makes detailed reference to relevant data: for example, the UK Supreme Court decides 65 cases a year and the Indian Supreme Court, over 50,000!. Numerous judgments and scholarly articles are also discussed to present a fascinating comparative study of the interplay between legislative power and the judicial review thereof. In the end, no system can claim to be superior to the other.
Ironically, while Indian Courts strike down legislation, nothing prevents Parliament or the State legislatures from amending the laws so as to remove the very basis of the judgment and bring the parties back to square 1, thus making the judicial victory a pyrrhic one. This is particularly true in tax laws with several favourable decisions being set at naught by a retrospective amendment! (The book contains an Appendix that details such retrospective amendments).
The lucid style of the book makes for easy reading. It has five chapters – each progressing logically to the next and finally, the conclusion, rightly emphasizing that the strength of constitutional remedies rides heavily upon the institutional apparatus accompanying it. In my view, this book should be read by the entire legal fraternity and students of political science. It is a remarkably useful addition to the legal literature on comparative constitutional law.
Arvind P Datar is a Senior Advocate practising in the Supreme Court