Introduction
The principle of separation of powers is a cornerstone of constitutional governance, where the legislature is responsible for lawmaking, and the judiciary’s role is to interpret and apply the law. Judicial review serves to ensure that laws align with constitutional principles, but it may also raise concerns about judicial overreach, especially when courts invalidate laws. The Suspended Declaration of Invalidity (“SDI”) aims to address this challenge by suspending the invalidation of unconstitutional laws, rather than outrightly striking it down, providing the legislature time to amend such laws and promoting dialogue between the judiciary and the legislature.
In this piece, we critique the use of SDI alongside the “reading-in” remedy, advocated by Samuel Kahura. “Reading-in” allows courts to add words to a statute to make it constitutionally compliant during the SDI period, thus ensuring rights protection in the face of legislative inaction. However, we argue that this approach shifts the judiciary’s role from “negative legislator” to a “positive legislator,” undermining the separation of powers and diminishing the democratic legitimacy of the legislative process.
We present three key arguments: Firstly, we maintain that SDI is used as a dialogic mechanism between the judiciary and legislature, allowing time for legislative reform without voiding laws immediately; and argue that the interim reading-in remedy (IRM), undermines SDI’s purpose by pre-emptively altering laws, reducing legislative responsibility and democratic legitimacy. Secondly, we endorse a two-track approach as a balanced solution, offering immediate relief to litigants while allowing time for legislative action. Lastly, we divide and compare such models which are used when SDI is in force – Strike-Down-Model (SDM) and Reading-In-Model (RIM) and Interim-Reading-In-Model (IRM), concluding that the SDM best preserves the constitutional balance of powers and incentivizes legislative responsiveness, with the IRM ranking lowest due to its constitutional concerns.
The Dichotomy of Interim Reading-In and Purpose of SDI
The underlying idea of SDI is that, under certain circumstances, the judiciary should not simply nullify a law that is repugnant to the constitution. Instead, the courts should grant the legislature time to legislate before the law becomes void. In essence, SDI seeks to maintain traditional judicial review while mitigating the doctrine of nullity by allowing for a period during which the legislature may intervene. This approach encourages a legislative response to resolve the issue and fosters cooperation between the three branches of public power by promoting democratic deliberation.
The case of Corbiere v. Canada illustrates the application of SDI, where the court suspended the order of invalidity and provided time to Parliament to undertake consultations and respond to the needs of the stakeholders, highlighting the importance of deliberation, while pursuing the remedy. SDI, as a dialogic remedy, seeks to address two limitations that the courts face: (A) inability to address polycentric disputes, and (B) the “counter majoritarian dilemma”.
- Inability to address Polycentric Disputes
Lon Fuller conceptualised polycentric disputes as a spider’s web. When one strand of a web is pulled, the tension is distributed throughout the web in a complicated pattern. Polycentric situations are similarly ‘multi-layered,’ with each intersection of strands acting as a distinct centre of tension. This interconnectedness makes such situations inherently complex and difficult to resolve through traditional adjudication. Accordingly, courts may be inadequately informed due to limited participation or input from all affected parties. Without a full understanding, a court cannot fully grasp the potential repercussions of its decisions. These types of disputes, which are beyond the expertise of constitutional courts, are better suited for the legislature, as it can handle such multifaceted problems through its deliberative processes and access to expert committees. In this context, SDI seeks to off-load some polycentric problems away from the courts to the domain of legislature which is better equipped to consider the broader context of a polycentric issue and account for the complex, interacting factors that a court, in its more limited scope, may not be able to fully appreciate.
- The ‘Counter majoritarian’ deficit
SDI, as a form of institutional dialogue, addresses the problem of democratic legitimacy and counters the ‘counter majoritarian’ nature of judicial review. This theory ensures that both the courts and the legislature engage in a dialogue regarding the balance between constitutional principles and public policies. In this sense, judicial review becomes democratically legitimate, as it allows the legislature, through this remedy of SDI, to respond to judicial decisions that nullify legislation. Tremblay, through his theory of institutional dialogue asserts that judicial review is legitimized only if it can be shown to have a positive democratic source, where the will of the majority, expressed through their elected representatives, provides the democratic pedigree that legitimates the practice of judicial review. This idea is rooted in the concept of popular sovereignty, which requires that democracy be a continuous and active process. SDI ensures that political legitimacy is derived from a democratic source, emphasizing that the legislature, not the courts, best represents the people.
The Interim Reading-In Remedy: A Closer Look at VJV
Kahura argues in favour of an interim reading-in as a remedy for legislative inertia, suggesting that such an approach can threaten the legislature with the possibility that a temporary (interim) reading-in will become permanent if the legislature fails to act. This interim measure, issued during the SDI period, is designed to provide immediate relief to parties whose rights have been infringed upon, ensuring their rights are protected while the legislature is given time to address the issue legislatively.
However, we criticize this approach for several reasons. While the interim reading-in may seem like a practical solution to legislative delay, it risks setting a damaging precedent in terms of institutional comity and undermines the core principle of SDI. Kahura draws on the case of VJV to justify the reading-in remedy, where the court suspended its ruling of unconstitutionality for 24 months, allowing Parliament to “consider” the challenged provisions.
Parliament, through its deliberative and consultative processes, is better suited to deal with societal issues. However, by simultaneously reading-in the phrase “permanent life partner” in Section 40 of the Children’s Act to remedy the mischief, the court aimed to compel the legislature to amend the law in line with the words read in by the judiciary. This disallows the Parliament from exercising its effective choice to consider the impugned provisions, and ultimately removes society, as a stakeholder, from the legislative process, a role the legislature alone is positioned to represent on issues like artificial fertilization. In this case, the “consideration” by Parliament, which the SDI remedy seeks to provide, would entail conforming to the judicial interpretation set out in the reading-in, denying the legislature the opportunity for careful consideration and wide-ranging consultation.
The reading-in approach was adopted by the court to ensure that no lacuna would arise from the invalidity order and immediate rights are provided, but in doing so, it essentially sets forth a law without effective consultation among stakeholders. This comes at the cost of the judiciary overstepping its role and trampling on the legislature’s primary responsibility, especially when the judiciary’s inability to address polycentric problems is acknowledged. This creates a paradox, where the judiciary’s action undermines the very deference SDI seeks to uphold.
Jurisprudentially, a far better way of doing this, which is, changing how the law means in the first place is what was done in the Vishaka case. In the same, while delineating protocols to mitigate sexual harassment within workplaces and related settings, the judiciary acknowledged the concurrence of the Union of India to such guidelines as articulated by the Solicitor General [¶9]. Analogously, in the adjudication regarding advance medical directives (AMDs), wherein clarifications to the 2018 jurisprudence established in Common Cause (A Regd. Society) were solicited, the Court noted the Government’s revised acquiescence to several proposed modifications [¶5]. Such instances are indicative of the legislative branch’s deference, rather than assertion, in realms where legislative voids are conspicuous. The judiciary itself acknowledged that the legislature may delegate such matters to judicial discretion, particularly in circumstances involving judicial review [Gamper, page-424], thereby empowering the judiciary to address legislative gaps in the absence of parliamentary intervention. This approach is far more aligned with the constitutional balance of powers, than compelling the legislature to acquiesce to the judiciary’s interpretation of what the law ought to be.
Two-Track Remedy: Reconciling Litigants’ Relief and Legislative Consideration
Scholars have raised concerns that SDI denies successful litigants an immediate remedy, as the laws addressing the delayed declaration of invalidity are prospective, only affecting future cases. This criticism aligns with Dicey’s view of the judiciary’s role as an adjudicator who ensures justice for the aggrieved party. As a result, litigants who win their cases may not receive a remedy for past violations. To address this, VJV adopted the reading-in remedy, allowing individuals to secure immediate rights while Parliament works to rectify the constitutional issue.
Against this, we argue that Roach’s two-track approach offers a balanced solution to the concern raised by Kahura regarding immediate relief to address legal gaps. This approach operates on two levels:
- The first track provides a remedy to litigants who have experienced violations, offering them relief directly.
- The second track encourages courts to work with the legislature to develop long-term, systemic remedies.
Under this model, any temporary remedy granted by the court would apply only to the aggrieved litigant, rather than offering a general, interim solution like “reading in” to the public before the Parliament has acted. For example, the court could exempt litigants from an unconstitutional law while giving the Parliament time to create a new one. This exemption ensures that litigants are not harmed irreparably during the suspension, without influencing the content of new laws under legislative consideration. In contrast, the “reading-in” remedy is more intrusive, as it may restrict legislative discretion by prematurely altering the law before the legislature has had a chance to review it. This could undermine the purpose of SDI, as argued before.
This approach also recognizes that remedies will evolve over time and that the needs of individual litigants can help drive broader systemic reforms. While concerns about queue-jumping—where successful litigants receive remedies unavailable to others—are valid, the common law tradition, supported by Dicey, asserts that successful litigants are entitled to a remedy because they are the ones directly harmed by the unconstitutional law. While the approach is not entirely without its issues, it is a more balanced solution. It ensures that individuals who have been wronged receive the relief they are due, while still allowing the legislature time to address the constitutional issue.
In the second part of this blog series, different approaches to addressing legislative inertia will be explored, with each method being evaluated based on broad parameters and scores. The aim is to demonstrate that legislative inertia can be addressed without resorting to the interim reading-in remedy, which undermines the purpose of a dialogic remedy like SDI and removes the society as a stakeholder in a primarily societal issue.
