Balanced Constitutionalism

“Balanced Constitutionalism” examines the promise of the “new model” of judicial review against its performance in practice – by comparing judicial review under the Human Rights Act, 1998 (UK) to an exemplar of the old model of judicial review, the Indian Constitution. Based on a thorough analysis of judicial decisions and legislative responses in both nations, it argues that although the Human Rights Act fosters a more balanced allocation of powers between legislatures and courts than the Indian Constitution, it does so for a different reason from that offered by scholars. Balanced constitutionalism is not achieved through the legislative rejection of judicial decision-making about rights. Instead, the nature of the remedy under the Human Rights Act – the “declaration of incompatibility” – enables British courts to assert their genuine understandings of rights in situations in which Indian courts find it difficult to do so.

In this talk, the author focuses on the institutional apparatus accompanying the declaration of incompatibility in the UK on the one hand, and informal recommendations to change the law in India on the other. Although the declaration of incompatibility may look like a freestanding advisory remedy at first glance, it is given significant institutional purchase by the UK Parliamentary Joint Committee on Human Rights (JCHR) and the European Court of Human Rights. The JCHR presses the government to engage with declarations of incompatibility, ensuring that silence is not realistic option. The European Court usually compels the Westminster Parliament to change the law following a declaration of incompatibility. The work of these institutions will be compared with India’s National Human Rights Commission, which finds it difficult to influence legislative activity on both of these counts.