NATIONAL LAW SCHOOL OF INDIA UNIVERSITY
LECTURE 3 JANUARY 2002
BANGALORE, INDIA
CONSTITUTIONAL LAW: INDIAN AND AUSTRALIAN
ANALOGUES*
The Hon Justice Michael Kirby AC CMG**
SEERVAI, AND SHARED FOUNDATIONS
The foremost expositor of the constitutional law of India, apart
from the Supreme Court, is H M Seervai. His work is behind me on the
closest shelf of the bookcase of my chambers in Canberra. I never met
him. Yet I feel I know him. No writer on constitutional law with whom I
am familiar is so direct and personal in the expression of his points of
view. It is always a bracing experience to dip into his great trilogy1.
*
Adapted and updated from a contribution to the Golden Anniversary
Book of the Supreme Court of India, 2000.
**
Justice of the High Court of Australia. The author acknowledges the
assistance of Mr Ben Wickham, legal research officer of the High
Court of Australia, in the preparation of this Chapter.
1
H M Seervai, Constitutional Law of India (4th ed, 1991).
2.
In relation to Australian constitutional law, there are important
points of similarity and of difference which Seervai's work repeatedly
brings out. My thesis is that Indian and Australian judges and lawyers
need to relearn the benefits of familiarity with each other's constitutional
doctrine. Such familiarity was there fifty years ago, at least on the Indian
side.
It is still relevant.
The stimulus, and the instrument, for this
endeavour is H M Seervai's monumental work.
The Constitution of India drew, as did the Australian Constitution
fifty years earlier, upon lessons and examples learnt from the
Constitution of the United States of America. The Indian Constitution,
like that of Australia, adopted the federal arrangement and created a
judicial branch wholly independent of the other branches of government,
as in the United States. Judicial review, to keep all recipients of pubic
power within the Constitution and other applicable laws was faithfully
imitated. But the Indian Constitution went further. It adopted (as some
have suggested the Australian Constitution should now do) the
republican principle2. It also incorporated a Bill of Rights which, at least
until very lately, has been regarded as a notion alien to the sovereignty
of Parliament so central to the constitutional ideas of the United
Kingdom3. No such general Bill of rights was adopted in Australia. Yet,
2
Indian Constitution, Preamble, first line. Note Constitution (Fortysecond Amendment) Act 1976, s 2; cf H M Seervai, Constitutional
Law of India (4th ed, 1991), vol 1, 158.
3
H M Seervai, Constitutional Law of India (4th ed, 1991), vol 1, 159;
cf M Kachwaha, The Judiciary in India, Leiden, 1998, 15.
3.
despite
these
important
features
which
distinguish
the
Indian
Constitution from that of Australia, overwhelmingly their governmental
and legal systems are similar.
Whereas the Indian Head of State is called President, he acts, like
the sovereign of the United Kingdom and the Queen and her
representatives in Australia, on the advice of Ministers who are
accountable to the lower house of Parliament.
In this sense, the
President's functions are similar to those of the Governor-General of
Australia.
The President is not of course the representative of the
monarch4. But as Seervai remarks5:
"To remove a common misconception, it ought to be stated
that the machinery of Govt. set up by our Constitution
follows in essentials the British, and not the American model.
The doctrine of the separation of powers and the doctrine
that legislatures of the delegates of the people which are
basic doctrines of the US Constitution do not form part of the
Constitution of Great Britain or the Constitution of India. Our
Constitution has rejected the Presidential form of Govt., that
is of an Executive independent of and not responsible to, the
legislature and adopted the British model of government by
a Cabinet, that is, of an Executive responsible to, and
removable by the legislature".
4
Australian Constitution, s 61 ["The executive power of the
Commonwealth is vested in the Queen and is exercisable by the
Governor-General as the Queen's representative, and extends to
the execution and maintenance of this Constitution, and of the laws
of the Commonwealth"].
5
H M Seervai, Constitutional Law of India (4th ed, 1991), vol 1, 159
referring to Shamsher Singh v Punjab [1975] 1 SCR 814; (74) ASC
2192.
4.
Similarly, with respect to the functions and powers of the Supreme
Court, Seervai notes6:
"The position occupied by our Sup Ct more closely
resembles that of the Sup Ct of Australia than of the US Sup
Ct. The US Sup Ct is not the final Court of Appeal in Civil
and Criminal cases throughout the United States. It has
appellate jurisdiction to control inferior Courts, but its
principal work is as a Constitutional Court. Our Sup Ct is a
final Court of Appeal in all matters from all courts in India
and not merely on Constitutional matters. It has a limited
original jurisdiction and … and an exclusive original
jurisdiction in disputes between the Union and the States.
The Sup Ct of Australia is a final Court of Appeal in Australia
in all matters, Civil, Criminal and Constitutional7".
There is no doubt, as Seervai discerns (citing his kindred spirit,
Dr Wynes of Australia), that the fact that the Supreme Court of India, like
the High Court of Australia, is a general court of appeal, profoundly
influences its image of itself, its methodology and its work. Although, in
deciding constitutional and other cases, the supreme court of any nation,
India and Australia included, is inescapably involved in the resolution of
political questions, the performance of the responsibilities of a general
court of appeal has a tendency to tame the larger ambitions, to control
the kinds of people who are usually appointed and to encourage a
6
H M Seervai, Constitutional Law of India (4th ed, 1991), vol 1, 263.
7
He refers to the theoretical exception of an appeal by certificate of
the High Court of Australia to the Judicial Committee of the Privy
Council in accordance with Australian Constitution, s 74. That
possibility is now a dead letter. See State of Western Australia v
Hammersley Iron Pty Ltd [No 2] (1969) 120 CLR 74. See also
Kirmani v Captain Cook Cruises Pty Ltd [No 2]; Ex parte AttorneyGeneral (Qld) (1985) 159 CLR 461 at 463-465.
5.
methodology which promotes consistency and diminishes the more
unrestrained flights of judicial fancy.
Yet for all the similarities, which even reach down to matters of
titles, courtroom courtesies, curial organisation, hours of work and so on,
there are inescapable differences. The Indian judiciary is the "guardian
angel"8 of the Constitution which brings the rule of law to one of the most
populous, diverse and challenging societies of the world. The crippling
case loads of the courts of India far exceed those of Australia, heavy
though these sometimes appear. Poverty and ancient prejudices and
disadvantages have imposed on the Indian judiciary pressing obligations
to adapt constitutional and other laws to secure and uphold an essential
social and economic revolution. These are obligations that judges in
Australia do not have to face, at least to anything like the same degree.
In part, this phenomenon explains the jurisprudence of the Supreme
Court of India which enlarges the locus standi of those who would
engage the courts9 in a way that has not yet been copied in the ultimate
court of Australia10 or, indeed, in most other countries of the common
law.
8
M Kachwaha, above n 3, 5.
9
Fertilizer Corporation Kamagar Union v Union of India [1981] AIR
(SC) 344; S P Gupta v President of India and Ors AIR [1982] AIR
(SC) 149 at 186; cf V Sripati, "Human Rights in India - Fifty Years
After Independence" (1997) 26 Denver J Intl L and Policy 93 at 119.
10
For a recent Australian decision, see Oshlack v Richmond River
Council (1998) 193 CLR 72; cf Levy v Victoria (1997) 189 CLR 579
and Attorney-General for the Commonwealth v Breckler [1999] HCA
Footnote continues
6.
INDIAN USE OF AUSTRALIAN LAW
Certain similarities in the constitutional texts, together with the
common legal tradition and shared judicial assumptions made it natural,
in the earliest days of the Constitution of India, that its judges would look
to decisions of other federal supreme courts for guidance, including to
the High Court of Australia. By that time, the High Court of Australia had
fifty years of judicial elaboration of the Australian Constitution. The early
decisions of the Supreme Court of India drew substantially on this.
Seervai faithfully recorded, and sometimes criticised, the outcomes.
For example, in 1954 in Commissioner, Hindu Religious
Endowments, Madras v Sri Lakshmindra Thirtha Swamiar of Sri Shirur
Mutt11 Mukherjea J, in relation to a case concerning the protection of
religious freedom as guaranteed by the Indian Constitution, called in aid
the decision of Latham CJ in Adelaide Company of Jehovah's
Witnesses v The Commonwealth12. Mukherjea J held that Latham CJ's
"observations apply fully to the protection of religion as guaranteed by
the Indian Constitution". The exercise of religion is not unfettered. The
provision for its protection exists in a broader constitutional context. It is
28 at [102-109] where the right of intervention before the High Court
of Australia is considered.
11
[1954] SCR 1005 at 1024.
12
(1943) 67 CLR 116 at 127.
7.
to be interpreted in conjunction with the other provisions of the
Constitution. For example, restrictions may lawfully apply to the free
exercise of religion on the basis of public order, morality and health and
the regulation of economic, financial, political and secular activities of the
religion13.
In Ratilal Panachand Gandhi v State of Bombay14, Mukherjea J
said:
"The distinction between matters of religion and those of
secular administration of religious properties may, at times,
appear to be a thin one. But in cases of doubt, as Chief
Justice Latham pointed out … the court should take a
common sense view and be actuated by considerations of
practical necessity.
In the same realm of discourse, another great judge, Khanna J, in
St Xavier's College v Gujarat15 also drew on Latham CJ's opinion in the
Jehovah's Witnesses Case. He cited Latham CJ's warning:
"It should not be forgotten that such a provision as s 116 [of
the Australian Constitution], is not required for the protection
of the religion of the majority. The religion of a majority can
look after itself. Section 116 is required to protect the
13
[1954] SCR 1005 at 1024,citing cl 2(a) and (b) of Article 25 of the
Constitution.
14
[1954] SCR 1055 at 1066.
15
[1975] 1 SCR 173.
8.
religion (or absence of religion) of minorities, and, in
particular, of unpopular minorities"16.
Another area of jurisprudence which was called in aid in the early
days of the Indian Constitution concerned the constitutional guarantee of
just terms for any law providing for federal acquisition of property17. In
Chiranjital Chowdhuri v Union of India18, the Supreme Court of India
noticed the expansive view adopted of the Australian constitutional
guarantee as expressed in the decision of the High Court of Australia in
Minister of State for the Army v Dalziel19.
Australia. It has been applied recently20.
This is still good law in
In R C Cooper v Union of
India21, Ray J drew on the Australian decision. So did Sastri CJ in State
of West Bengal v Subodh Gopal Bose22.
The broad view adopted in the Australian decisions concerning
the meaning of "property" for the purpose of constitutional provisions
relating to compulsory acquisition of property undoubtedly influenced
16
[1975] 1 SCR 173 at 224-225 citing (1943) 67 CLR 116 at 124.
17
Australian Constitution, s 51(xxxi).
18
[1950] SCR 869 at 921.
19
(1944) 68 CLR 261 at 285.
20
For recent cases see Newcrest Mining (WA) Ltd v The
Commonwealth (1997) 190 CLR 513. The Commonwealth v WMC
Resources Ltd (1998) 194 CLR 1;
The Commonwealth of
Australia v Western Australia (1999) 195 CLR 392.
21
[1970] 3 SCR 530 at 635.
22
[1954] SCR 587 at 610.
9.
many early decisions of the Indian Court. In Dwarkadas Shrinivas v
Sholapur Spinning and Weaving Co23, Mahajan J expressed the opinion
that "the true concept of the expression 'acquisition' in our Constitution
… is the one enunciated by Rich J and the majority of the court in
Dalziel's Case24". Of course, care must be taken in adapting words used
in relation to a different constitutional text, expressed in different terms
and applicable to utterly different social circumstances and needs.
Special care must be taken in the case of India because of the
successive amendments to the provisions of the Constitution relating to
the compulsory acquisition of property25.
However, the use of the
jurisprudence of the High Court of Australia indicates the particular
open-mindedness of the early judges of the Supreme Court of India and
their willingness to look beyond the traditional sources of the English
judiciary.
One of the most vexed areas over the course of Australian
federation has been the guarantee in s 92 of the Australian Constitution
of absolute freedom of interstate trade, commerce and intercourse. The
23
[1954] AIR (SC) 119.
24
[1954] SCR 674 at 704. See also State of Karnataka v Ranganatha
[1978] 1 SCR 641.
25
A point noted by the author in Newcrest Mining (WA) Ltd v The
Commonwealth (1997) 190 CLR 513 at 659-660. In India, there has
been a significant amendment to the Constitution with respect to
property. The right to property, formerly protected in Article 19(f),
has been deleted by the 44th Amendment. Article 300A was then
incorporated, stating that no person shall be deprived of their
property save by authority of law.
10.
adoption of a counterpart provision in the Indian Constitution (Article
301) made it natural enough that attempts would be made, in the early
days, to borrow from the meandering course of Australian case law for
the guidance which it could give to the Supreme Court of India.
In
Automobile Transport (Rajasthan) Ltd v State of Rajasthan26, Das J
referred to the need to read the Indian provision in a constitutional
context which acknowledged the need and legitimacy of a measure of
regulatory control, whether by the Union government or by the
governments of the States. In this, Das J relied upon the observations
of Australia's first Chief Justice, Griffith CJ, in Duncan v State of
Queensland27. That fine jurist had said: "The word 'free' does not mean
extra legem, any more than freedom means anarchy. We boast of being
an absolutely free people, but that does not mean that we are not
subject to law." Thus the Supreme Court of India, like the High Court of
Australia, adopted the view that the notion of "freedom" employed in the
guarantee of free internal trade and commerce is to be understood in the
context of "the working of an orderly society". As such, it is necessary
"to add certain qualifications subject to which alone that freedom may be
exercised"28.
26
[1963] SCR 491.
27
(1916) 22 CLR 556 at 573.
28
[1963] SCR 491 at 521 per Das J.
11.
Subba Rao J, in his opinion in the Automobile Transport Case,
undertook an extensive review of the Australian case law on freedom of
trade, commerce and intercourse. He noted that "some of the leading
Australian decisions contain an interesting and instructive exposition of
the conflict of jurisdiction and useful suggestions for resolving it"29.
Perceptively, he noted30:
"Paradoxically the Courts of Australia … evolved the power
to restrict the said freedom by the States from the concept of
absolute freedom itself. This was necessitated because
there were no statutory provisions limiting the absolute
freedom and, as uncontrolled freedom may lead to chaos,
limitations on the freedom were evolved to save the said
freedom. The scope of the limitations so evolved would be
useful to construe the relevant provisions of our
Constitution".
Hidayatullah J, whilst relying on the Australian decisions, was
careful to predicate his own consideration of the article with the
qualification31:
"Nothing is more dangerous to suppose that the Indian
Constitution wished to secure freedom of trade, commerce
and intercourse in the same way as did the Australian
Commonwealth".
29
[1963] SCR 491 at 545.
30
[1963] SCR 491 at 544.
31
[1963] SCR 491 at 575.
12.
However, like the Australian decisions, Hidayatullah J concluded
that a law which targeted interstate trade and commerce as such would
be invalid32.
This is still the law in the Australian Commonwealth.
However, since the early borrowings from our jurisprudence a new
enlightenment has been reached in Australia33. As this is a difficult and
controversial area, littered with legal tombstones, I hesitate to suggest
that great help will be procured by Indian lawyers. The words of Das CJ
in The State of Bombay v RMD Chamarbaugwala34 in this legal domain,
as in all others, must resonate in our minds. Australian cases, he said,
should35:
"be used with caution and circumspection … The scheme of
the Australian Constitution … is different from that of ours,
for in the Australian Constitution there is no such provision
as we have in Art 19(6) or Arts 302-304 of our Constitution.
The provision of s 92 of the Australian Constitution being in
terms unlimited and unqualified the judicial authorities
interpreting the same had to import certain restrictions and
limitations dictated by common sense and the exigencies of
modern society".
There is another particular area of constitutional jurisprudence in
which the Supreme Court of India has found useful the decisions of the
32
cf Australian National Airways Pty Ltd v The Commonwealth (1945)
71 CLR 29. For the comparable position in the European Union see
P J Smith, "Movement of Goods Within the EC and s 92 of the
Australian Constitution" (1998) 72 ALJ 465.
33
Cole v Whitfield (1988) 165 CLR 360.
34
[1957] SCR 874 at 906-907.
35
[1957] SCR 874 at 918.
13.
Australian High Court. It concerns inconsistency or repugnancy of State
and federal (or central) laws. The provision of the Indian Constitution in
this regard (Art 254) is similar to that of s 109 of the Australian
Constitution. The analysis of s 109 offered by Dixon J seventy years
ago in Ex parte McLean36 has proved as powerful an influence upon the
minds of successive generations of Indian judges and lawyers as it has
upon those of Australia. Take for example the decision in V K Sharma v
State of Karnataka37.
There, K Ramaswamy J, in dissent as to the
outcome, examined closely the history of Australian jurisprudence on the
subject of constitutional inconsistency of laws. The need to approach
inconsistency and repugnancy in the constitutional sense in the context
of a federal polity which is expected to work harmoniously as between
the several parts, has been emphasised both in Australian and in Indian
jurisprudence38.
In Ch Tika Ramji v State of Uttar Pradesh39, Justice N H Bhagwati
drew on the Australian constitutional decisions, and in particular Ex parte
McLean in concluding40:
36
(1930) 43 CLR 472 at 483.
37
[1990] 1 SCR 614.
38
See eg Thakkar J in Ram Chandra Mawa Lal v State of Uttar
Pradesh [1984] 2 SCR 348. For a closely divided recent Australian
case see Gould v Brown (1998) 193 CLR 346 now superseded by
Re Wakim; Ex parte McNally (1999) 72 ALJR 839.
39
[1956] SCR 393.
40
[1956] SCR 393 at 425.
14.
"If it appeared that the Federal law was intended to be
supplementary to or cumulative upon State law, then no
inconsistency would be exhibited in imposing the same
duties or in inflicting different penalties. The inconsistency
does not lie in the mere co-existence of two laws which are
susceptible of simultaneous obedience. It depends upon the
intention of the paramount Legislature to express by its
enactment, completely, exhaustively, or exclusively, what
shall be the law governing the particular conduct or matter to
which its attention is directed".
The metaphor used in Ex parte McLean, by which the federal or
central law will expel its state competitor if its clear purpose was to
"cover the field" has entered Indian jurisprudence on this subject, just as,
for seventy years, it has influenced countless Australian decisions where
the like problem has presented.
AUSTRALIAN USE OF INDIAN LAW
There are many areas where the Justices of the High Court of
Australia have called upon decisions of the Supreme Court of India in
explaining their reasons.
Thus in Bropho v Western Australia41, the
Court had to consider the application of the principle of statutory
interpretation that general words in a statute will ordinarily be construed
as inapplicable to the Crown (ie the State). The majority of the High
Court, comprising Mason CJ, Deane, Dawson, Toohey and McHugh JJ
pointed to the fact that "there has been a growing tendency to question
41
(1990) 171 CLR 1.
15.
the
appropriateness
circumstances"42.
of
the
old
rule
of
immunity
to
modern
In doing so, the Australian judges referred to the
decision of the Supreme Court of India in State of West Bengal v
Corporation of Calcutta43.
In the Tasmanian Dam Case44, Murphy J referred to the
developed jurisprudence in a number of countries, including India by
which the constitutionality of legislation is presumed unless the contrary
is demonstrated.
Murphy J referred, amongst other decisions, to
Chiranjit Lal Chowdhuri v Union of India45, State of Bombay v F N
Balsara46, V M Syed Mohammad and Co v Andhra47 and Krishnan v
Tamil Nadu48.
With reference to further Indian decisions, Murphy J
made the same point in Attorney-General (Western Australia) v
Australian National Airlines Commission49.
42
(1990) 171 CLR 1 at 20.
43
[1967] AIR (SC) 997 at 997-998.
44
Commonwealth v Tasmania (1983) 158 CLR 1 at 165.
45
[1950] 1 SCR 869 at 879.
46
[1951] AIR (SC) 318.
47
[1954] SCR 1117 at 1120.
48
[1975] 2 SCR 715 at 729.
49
(1976) 138 CLR 492 at 529.
16.
In the context of equality before the law, a number of decisions of
the Australian High Court have drawn upon opinions in the Supreme
Court of India. Thus in the important case of Dietrich v The Queen50,
Deane J noted that reasoning similar to that in the United States which
upheld the right of indigent prisoners to state-funded legal representation
had "prevailed in India".
He referred to Hoskot v Maharashtra51 and
Hussainara Khatoon v Home Secretary, State of Bihar52.
Justice Deane also drew upon the decision of the Supreme Court
of India in Maneka Gandhi v Union of India53 in support of the principle
that a constitutional guarantee, such as that contained in s 117 of the
Australian Constitution, should be interpreted broadly and not confined
to "narrow technicality or legalism"54. In the same case, Gaudron J55
referred to the jurisprudence of the Supreme Court of India on the notion
of equality before the law. Specifically, she cited the remarks of Das J in
State of West Bengal v Anwar Ali56:
50
(1992) 177 CLR 292 at 334.
51
[1979] 1 SCR 192 at 204-208.
52
[1979] 3 SCR 760 at 765. The United States decisions include
Betts v Brady 316 US 455 (1942) at 476 per Black J and Gideon v
Wainwright 372 US 344-345(1963) per Black J.
53
[1978] AIR (SC) 597.
54
Street v Queensland Bar Association (1989) 168 CLR 461 at 527.
55
(1989) 168 CLR 461 at 571-572.
56
[1952] AIR (SC) 75 at 93.
17.
"All persons are not, by nature, attainment or circumstances,
equal and the varying needs of different classes of persons
often require separate treatment and, therefore, the
protecting clause has been construed as a guarantee
against discrimination against equals only and not as taking
away from the State the power to classify persons for the
purpose of legislation".
In another case, Mabo v Queensland57, Wilson J in the High Court
of Australia referred to the decisions of the Supreme Court of India
concerning equality before the law. Applying a passage in the reasoning
of Mathew J in Kerala v Thomas58, Wilson J observed that "formal
equality before the law does not always achieve effective and genuine
equality … The extension of formal equality in law to a disadvantaged
group may have the effect of entrenching inequality in fact"59. This same
point was made by Brennan J in the Australian High Court in his
decision in Gerhardy v Brown60 where he referred to the "pithily
observed" remarks of Ray CJ that "[e]quality of opportunity for unequals
can only mean aggravation of inequality"61. Brennan J remarked that
"[t]he validity of these observations is manifest"62.
57
(1988) 166 CLR 186 at 206.
58
[1976] 1 SCR 906 at 951.
59
(1985) 159 CLR 70 at 128-129.
60
(1988) 166 CLR 186 at 206.
61
[1976] 1 SCR 906 at 933.
62
(1985) 159 CLR 70 at 129.
18.
In Re Residential Tenancies Tribunal (NSW); Ex parte Defence
Housing Authority63 I cited the links in the jurisprudence on
inconsistency and repugnancy in India and in Australia.
As I have
already explained, in each country the courts have applied tests to
uphold, where constitutionally required, the legislative supremacy of the
federal (or central) laws.
CONCLUSION
The common features of the constitutions of the common law
federations of the Commonwealth of Nations make it specially useful to
study the decisions and textual commentaries applicable to the
constitutions of other lands.
As Australian federal constitutional
jurisprudence enters its second century, with confidence born of true
intellectual independence in all legal matters, it seems inevitable that
Australian judges and lawyers will look increasingly to Indian judicial
authority in analogous areas.
63
(1997) 190 CLR 410 at 497.
NATIONAL LAW SCHOOL OF INDIA UNIVERSITY
LECTURE 3 JANUARY 2002
BANGALORE, INDIA
CONSTITUTIONAL LAW: INDIAN AND AUSTRALIAN
ANALOGUES
The Hon Justice Michael Kirby AC CMG