A comparison between the slow and stately dance between the constitutional courts and parliaments in India and the UK was an improbable subject not so long ago.
Nearly a century ago, in December 1917, Annie Besant rose to the presidency of the Indian National Congress and in her thunderous presidential address at the Calcutta session demanded Home Rule. Earlier that year, she was interned by the government of Madras at Ooty.
A few months earlier on August 20, 1917, Edwin Montagu, the secretary of state for India, announced in the British parliament that the policy for India was:
“Increasing association of Indians in every branch of the administration and the gradual development of self-governing institutions with a view to the progressive realisation of responsible governments in India as an integral part of the British Empire.”
Tilak, with a keen sense of the national sentiment, dismissed Montagu’s reform as “unworthy and disappointing – a sunless dawn.”
But the dialogue on constitutionalism had begun, spurred on by the massacre at Jallianwala Bagh on April 13, 1919, the dissent in the Hunter Committee Report calling for greater accountability, the round table conferences in the early 1930s and then of course the immense work by the constituent assembly under the stewardship of B.R. Ambedkar and the advice of B.N. Rau.
Montagu in An Indian Diary recalls his visit by launch to the Elephanta Caves, a short boat ride from Bombay. Impressed by the sculptures, he writes:
“The Elephanta Caves are interesting on a small scale, with very nice carvings in the rock of the life of Shiva. I particularly liked that Shiva who cut his wife into 52 pieces only to discover that he had 52 wives! This is really what happens to government of India when it interns Mrs. Besant.”
So it is fairly remarkable to have before us a comparative work on judicial review that might have seemed implausible just a few generations ago.
The Indian Supreme Court functions quite differently from the UK Supreme Court. As Chintan Chandrachud notes, the UK Supreme Court hears about 65 cases in a year while the Indian Supreme Court hears close to 50,000.
Decisions of the UK Supreme Court are usually made by panels of five judges whereas the two-judge bench is the norm in the Indian Supreme Court. (The recent Brexit judgement by the UK Supreme Court was rendered by a panel of 11 judges).
The sheer output from the Indian Supreme Court makes it difficult for academics and practitioners alike to critically and comprehensively analyse the jurisprudence of our court. On days when the Indian Supreme Court functions at full strength it has up to 15 benches deciding cases, each with potent judicial review powers that could trouble the government of the day, much like the proliferation of dissent noticed by Montagu.
While we take judicial review as a facet of constitutionalism for granted, and constitutional adjudications are possibly as old as democratic constitutionalism, this was a lonely journey for the US Supreme Court for nearly a century and a half.
In the 19th century, it was Switzerland that entrusted its Supreme Court with jurisdiction in the field of constitutional law but this did not include a review of federal legislation.
The horror of 20th century dictatorships in the European theatre and their contempt for human rights opened the doors for constitutional adjudication. The global expansion of judicial power as an adjunct to advancing constitutionalism has gained currency in many young constitutional democracies.
While constitutionalism as a new secular religion gains a vast following globally, we must recognise that it is a continuously evolving work.
Amongst the many themes that emerge from Balanced Constitutionalism is the quest for optimal machinery for dialogue between the legislature and the courts. In a successful challenge, the traditional model followed in India ends in the invalidation of the statute or in its most rarified avatar, a declaration that a constitutional amendment is void.
In contrast, the British model sensitive to Westminster parliament’s sovereignty, allows the court to issue declarations of incompatibility. This latter device enables the legislature to respond to the judicial opinion through corrective measures, allowing the dialogue to continue. One of the pitfalls of the traditional model of judicial review is that judges may be hesitant to strike down a law and leave a void, while the UK approach allows for judicial scrutiny in comfort of the knowledge that a declaration of incompatibility does not mean a collision with the legislature.
Chandrachud’s volume is a handsome contribution to the burgeoning field of scholarship in comparative constitutional law. It is a product of great toil by a practitioner who writes with flair and the rigour of a top-class academician.
The book with its revealing appendices of political responses to judgements striking down legislation and its analysis of the Suresh Kumar Kaushal v Naz Foundation regarding Section 377 – amongst many others – is a powerful reminder that the character of the judge is as important as the architecture of the constitution she guards.