Balanced Constitutionalism: A Study of Judicial System of the U.K and India to declare laws unconstitutional or void.

"While in India, court are generally required to declare void laws that offend the constitution, whereas, in the U,K under the Human Rights Act the House of Lords are allowed to make a declaration of incompatibility ".

On January 24th this year, the UK Supreme Court delivered a verdict in R (Miller) V, Secy of State, where core question for determination was this. Could Britain exit the European union without prior legislation passed in both houses of parliament? The government, having invoked Article 50 of the Treaty of the E.U, which stipulates the process to be followed by member states that desire to withdraw from the convention, argued that the power to withdraw was a purely executive prerogative. The court disagreed. It ruled that an act of parliament was prerequisite for Britain's exit form the European Union.

The court decision ultimately turned on certain basic conception of the constitution law. In its judgement, it held that the rights of individual flowing from legislation that was enacted as consequence of the UK joining the EU could only be removed or reduced by the enactment of fresh parliamentary legislation. On the face of it, these findings might not appear to have set a precedent of any universal value. But a closer examination of the verdics rational would show that the decision bears a significance that trasncends boarders, providing to us a framework to  comparatively examine the role of the courts and the significance and limitations of judicial review.

Balanced Constitutionalism 

For illustration: , an immediate parallel can plausibly be drawn between that verdict on brexit and the approach of the America federal courts in response to President Trump's  travel ban, which through executive fiat, targeted visa applications from sic Muslim majority countries. When  the Us Supreme ultimately decided on the legality of the travel ban there might be much to be gleaned from the comparison of these two verdicts on the nature to the political response to the decisions, the manner in which the power is balanced between  the different agencies of government and the result that ehy have on the countries respective democratic setups.

These kings of exercises in comparing decisions by different constitutional courts might well be fraught with difficulties, especially when there is lack of a shared history and political between the countries under comparison. But they are nonetheless valuable.

Through experience and illustration Chandrachud shows that how the HRA encourages a more balanced division of responsibility between the govenment and the courts, which allows for little possibility for dialogue and deliberation between the various wings of the state. 

While in india, courts are generally rewquired to declare as void laws that offend the consitituion, whereas, in the U.K  under the Human Rights Act 1998 courts are allowed to make a declaration of incompatibility. That is, if a law made by parliament is seen to conflict irreconciably with the provision of the HRA, the U.K courts can merely pronounce the existing of incompatibility, however, such a  declaration does not effect the validity of law, but merely leaves it to the wisdom of the parliament to decide whether to cure the defect, either through a repeal or through an amendment of law. Therefore, Hon'ble Supreme Court of India enjoys the enormous power what counter-intuitively, proves limiting.

The Kartar Singh Case

Supreme Court's 1994 judement in Kartar Singh Vs State of Punja, which when viewed along with the House of Lords 2004 verdics in the Belmarsh Prison Case, reflect refusal of Indian courts to articulate their genuine rights reasoning. In Kartan case the SC  upheld large parts of the TADA Act 1987, despite expressing a sense of deep distress and concern over some of the practices that the legislation endorsed, largely because of the "gravity of the terrorism that was endangering the nation". Whereas, in Belmars (U.K) the house of lords declared as incompatible with the Human Rights Act, various provision of the Anti Terrorism, Crime and security Act 2001, undetterred by national security consideration.

My scope of comparison might be narrow, i have concentrated primarily on probing the British Experience of judicial review under the human rights act 1988 and the model of examination followed by the Indian constitution. In Chintan Chadrachud's Constitution, his nature of findings, what they tell us about the role played by the Indian Judiciary, is remarkable salient. 

hitesh soni