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Balanced ConstitutionalismCourts and Legislatures in India and the United Kingdom$
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Chintan Chandrachud

Print publication date: 2017

Print ISBN-13: 9780199470587

Published to Oxford Scholarship Online: March 2017

DOI: 10.1093/acprof:oso/9780199470587.001.0001

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Judicial Review in the Shadow of Remedies

Judicial Review in the Shadow of Remedies

(p.124) 4 Judicial Review in the Shadow of Remedies
Balanced Constitutionalism

Chintan Chandrachud

Oxford University Press

This chapter shifts the focus of the book to the positive claim: that the remedial scheme under the HRA enables courts in the UK to assert their genuine understandings of rights more freely than Indian courts. Three pairs of examples, each consisting of one case from India and the UK, are relied upon as evidence of the claim that Indian courts make their decisions about the rights implications of legislation in the shadow of the power to strike down legislation, withholding their genuine understandings of rights from time to time. In analogous situations, British courts carry through their rights reasoning by making declarations of incompatibility. Textual and institutional constraints suggest that the Indian Supreme Court would be unwilling to exercise remedial discretion to issue ‘intermediate remedies’ seen frequently in many other jurisdictions, such as suspended declarations of invalidity or informal declarations of incompatibility.

Keywords:   Indian Constitution, HRA, power to strike down, declaration of incompatibility, remedial discretion, suspended declarations of invalidity

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