The first part of this blog series discussed the dichotomy between the ‘interim-reading in remedy’ and SDI as a dialogic tool, addressing limitations of courts in polycentric disputes and the “counter-majoritarian dilemma.” In the context of VJV, it critiqued the ‘interim reading-in approach’ as Parliament with its consultative process is best suited to address societal issues. The two-track remedy is proposed as a middleground, providing immediate relief to litigants while preserving legislative autonomy and the balance of powers.
What if the Legislature doesn’t Act?
A question may arise: in the event that the legislature fails to act despite this factual acknowledgment of constitutional infirmity, the judiciary confronts a critical dilemma: how to reconcile constitutional fidelity with democratic legitimacy. To resolve this tension, jurisdictions have evolved two primary models, alongside the Interim-Reading-In Model [IRM]: the Strike-Down-Model [SDM] and the Reading-In-Model [RIM]. These approaches reflect different views on the judiciary’s role when democratic processes fail, balancing judicial power and legislative authority in constitutional democracies.
| Model | Strike-Down Model | Reading-In Model |
| Description | After the suspension period, the court declares the unconstitutional law void, entirely invalidating it. | After the suspension period, the court, on parliamentary inaction, amends the understanding of the flawed statute by “reading-in” provisions or making new guidelines to ensure constitutional compliance. |
| Priority | Judicial restraint, upholding legislative responsibility for action. | Continuity of law, immediate rights protection and legal certainty. |
An example of SDM could be Sampath Kumar v. Union of India, the court examined the Administrative Tribunals Act, issuing an interim stay on certain provisions and giving the government until March 31, 1987, to amend the legislation. If amendments weren’t made by that date, the statute would be void (page 443, 444). This reflects the SDM’s view that, in cases of legislative inaction, judicial action should be minimal. This upholds the idea that Parliament should have the opportunity to address sensitive issues but isn’t obligated to intervene if it fails to act.
RIM, on the other hand, can be illustrated by a decision from an Italian court, which granted the government a one-year period to enact the relevant legislation. Along with this timeframe, the court provided a set of “guidelines” for Parliament to follow when considering the legislation. However, when Parliament failed to pass any legislation within the allotted period, the court did not merely declare the relevant provision unconstitutional; it proceeded to incorporate the guidelines into its ruling, thereby effectively filling the legislative gap (see also Fourie Judgment).
Given the emergence of three distinct models of judicial review, their efficacy in upholding institutional comity—particularly the delicate equilibrium between judicial authority and legislative responsibility within a constitutional democracy—necessitates careful evaluation against pertinent criteria. Therefore, we aim to do a comparative analysis, structured around five critical factors chosen for their foundational relevance to a healthy constitutional democracy. These factors – Separation of Powers, Democratic Legitimacy, Rights Protection, Legal Certainty, and Institutional Incentives – will serve as the framework for comprehensively evaluating the efficacy and implications of SDM, RIM, and the IRM in addressing legislative inaction SDI. The selection of these criteria reflects their integral role in assessing the delicate balance between judicial authority and legislative responsibility.
- Separation of Powers: Ensures power diffusion and prevents concentration. In judicial review, it balances judicial restraint with respect for legislative authority.
- Democratic Legitimacy: Tied to popular sovereignty, emphasizing accountability and the mandate of elected lawmakers. Analysing models shows their impact on legislative accountability and the legitimacy of legal norms.
- Rights Protection: Assesses how well each model protects fundamental rights, especially when legislative action is lacking.
- Legal Certainty: Examines each model’s ability to maintain a stable, predictable legal framework, ensuring consistent law application.
- Institutional Incentives: Looks at how each model influences the relationship between branches, encouraging legislative responsiveness and productive dialogue on constitutional norms.
| Factor | Model | Ranking (Points) | Justification |
| Separation of Powers | Strike-Down-Model | 1st (3-Points) | It upholds separation by deferring to the legislature’s lawmaking role, only voiding the law rather than creating one in case of inaction, thereby respecting legislative primacy and demonstrating judicial restraint. |
| Reading-In-Model | 2nd (2-Points) | Middle ground – involves judicial intervention but only after legislative inaction. Less preemptive than Interim, offers a degree of deference, though less pronounced than Strike-Down. | |
| Interim-Reading-In-Model | 3rd (1-Point) | Weakest on separation of powers. Preemptive “interim” reading during SDI blurs judicial review and governance. Significant encroachment upon the legislative domain before definitive legislative failure. | |
| Democratic Legitimacy | Strike-Down-Model | 1st (3-Points) | Best promotes legitimacy by incentivizing legislative accountability. Threat of invalidation pressures lawmakers to act on constitutional infirmities, fostering accountability and legislative responsibility. |
| Reading-In-Model | 2nd (2-Points) | Offers weaker, but present legitimacy. Occurs after inaction, signaling legislative failure. Can prompt public discourse and future accountability, even with judicial fix. | |
| Interim Reading-In Model | 3rd (1-Point) | Most undermines legitimacy. Preemptive judicial fix diminishes legislative urgency/responsibility. Reduces accountability of lawmakers to address constitutional issues effectively. Inaction becomes less consequential. | |
| Rights Protection | Interim-Reading-In Model | 1st (3-Points) | Most immediate rights protection. By offering an “interim” judicial fix during the suspension period, this model provides the earliest possible mitigation of rights violations. It prioritizes acting now to lessen harm to rights, rather than waiting for the suspension period to end. |
| Reading-In-Model | 2nd (2-Points) | Provides strong rights protection, though less immediate than Interim Reading-In. Reading-In offers definitive and robust rights protection, but this protection only commences after the suspension period concludes and legislative inaction is confirmed. While highly effective in the long run, it is less immediate. | |
| Strike-Down-Model | 3rd (1-Point) | Weakest on rights protection. Unconstitutional law remains in effect during suspension, and on parliamentary inaction, the law is just voided, thereby making a legislative gap in the governed area. | |
| Legal Certainty | Reading-In-Model
And Interim-Reading-In-Model |
2nd (2-Points) | Here, we give the same second position and points to both models because neither gives rise to legal uncertainty. Whether during the suspension period or post-amendment, the law in effect, even if judicially declared or amended, avoids a legal vacuum and disruption, ensuring continuity and stability as the law remains operational and corrected. |
| Strike-Down-Model | 3rd (1-Point) | It leads to the invalidation of the law if the legislature fails to act. This invalidation, especially if prolonged legislative inaction ensues, can create a legal void or gap in the regulatory framework, leading to significant legal uncertainty about what rules now govern the relevant area. | |
| Institutional Incentives | Strike-Down-Model | 1st (3-Points) | Strongest incentive for legislative responsiveness. Threat of invalidation is powerful incentive for Parliament to act. Forces lawmakers to address constitutional flaws to avoid legal voids and public backlash. |
| Reading-In-Model | 2nd (2-Points) | Relative to Strike-Down-Model, its offers weaker incentive for legislative responsiveness. Judicial remedy might lessen urgency for Parliament to engage. Judicial “fix” could be seen as sufficient, reducing impetus for comprehensive reform. However, post-inertia judicial action still signals legislative failure. | |
| Interim-Reading-In Model | 3rd (1-Point) | Weakest, potentially negative incentive for legislative responsiveness. Preemptive action removes pressure on legislature. Judicial “interim” solution diminishes incentive for Parliament to invest in legislative amendment, fosters inertia. |
The cumulative scores and Ranks are as follows:
| Strike-Down-Model
(1st place) |
Reading-In-Model
(2nd Place) |
Interim-Reading In-Model
(3rd Place) |
| 11 | 10 | 8 |
These models illustrate diverse judicial approaches to legislative inertia and their respective levels of constitutional compliance. While the Strike-Down and Reading-In Models appear largely constitutionally compliant, the Interim Reading-In Model is demonstrably less so, as highlighted by the constitutional concerns previously outlined. Although the Reading-In Model faces criticism for potentially usurping legislative functions – even when exercised after a suspension period – its continued application in numerous jurisdictions is often justified by the rationale that courts must adopt a more proactive role to remedy constitutional deficiencies, particularly when the legislature is perceived as insufficiently representing the public will.
This analysis does not aim to advocate for RIM as the optimal solution. Rather, it is to emphasize that the IRM, unlike the RIM which elicits fewer constitutional concerns, demonstrably fails to uphold several key constitutional imperatives. Chief among these is the separation of powers, where the judiciary assumes an overly active legislative role, establishing a potentially harmful precedent.
Conclusion
In the end, while remedies like SDI and the reading-in models strive to bridge the gap between law and legislative delay, the Interim Reading-In Model walks a dangerous line. It steps too far into the legislative realm, blurring the boundaries of judicial restraint, and risks turning the judiciary into a shadow legislature. The Strike-Down Model, however, preserves the delicate dance of democracy, where the legislature holds the pen of reform, and the court merely guides with gentle critique. It’s a philosophy that respects the balance of power, ensuring the law evolves with both justice and democratic integrity, like a well-crafted symphony that stays true to its score.
