Balanced Constitutionalism

3rd May 2017

“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.

In this talk, the Chintan Chandrachud 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.

This event was co-hosted with the South Asian Law Discussion Group.