The foremost expositor of constitutional law in India 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. And 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. In relation to Australian Constitutional Law, there are important points of similarity and of difference which is 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. It was there fifty years ago. 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 the creation of a judicial branch wholly independent of the other branches of government. 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, 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. Yet, 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. 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".
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, DrWynes 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 appointed and to encourage a 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 seem. 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 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, enlarging 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.
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.
For example, in 1954 in Commissioner, Hindu Religious Endowments, Madrasv Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt11 MukherjeaJ, in relation to a case concerning the protection of religious freedom as guaranteed by the Indian Constitution, called in aid the decision of LathamCJ in Adelaide Company of Jehovah's Witnessesv The Commonwealth12. MukherjeaJ held that LathamCJ'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 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, MukherjeaJ 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, KhannaJ, in St Xavier's Collegev Gujarat15 also drew on LathamCJ's opinion in the Jehovah's Witnesses Case. He cited Latham CJ's warning:
"It should not be forgotten that such a provision as s116 [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 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 Chowdhuriv 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 Armyv Dalziel19. This is still good law in Australia. It has been applied recently20. In RC Cooper v Union of India21 RayJ drew on the Australian decision. So did SastriCJ in State of West Bengalv 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 many early decisions of the Indian Court. In Dwarkadas Shrinivas v Sholapur Spinning and Weaving Co23, MahajanJ expressed the opinion that "the true concept of the expression 'acquisition' in our Constitution … is the one enunciated by RichJ 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 federation has been the guarantee in s92 of the Australian Constitution of absolute freedom of interstate trade, commerce and intercourse. The 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) Ltdv State of Rajasthan26, DasJ 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, DasJ relied upon the observations of Australia's first Chief Justice, GriffithCJ, in Duncanv 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.
Subba RaoJ, 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".
HidayatullahJ, 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".
However, like the Australian decisions, HidayatullahJ 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. 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 DasCJ in The State of Bombay v RMD Chamarbaugwala34in this area, 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 s92 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 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 s109 of the Australian Constitution. The analysis of s109 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 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:
"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.
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 MasonCJ, Deane, Dawson, Toohey and McHughJJ pointed to the fact that "there has been a growing tendency to question the appropriateness of the old rule of immunity to modern circumstances"42. In doing so, they referred to the decision of the Supreme Court of India in State of West Bengal v Corporation of Calcutta43.
In the Tasmanian Dam Case44, MurphyJ 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 Bombayv F N Balsara46, V M Syed Mohammad and Co v Andhra47 and Krishnanv Tamil Nadu48. With reference to further Indian decisions, MurphyJ made the same point in Attorney-General (Western Australia)v Australian National Airlines Commission49.
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, DeaneJ 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 Hoskotv 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 s117 of the Australian Constitution, should be interpreted broadly and not confined to "narrow technicality or legalism"54. In the same case, GaudronJ55 referred to the jurisprudence of the Supreme Court of India on the notion of equality before the law. Specifically, she cited the remarks of DasJ in State of West Bengal v Anwar Ali56:
"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 MathewJ in Kerala v Thomas58, WilsonJ 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 BrennanJ in the Australian High Court in his decision in Gerhardy v Brown60 where he referred to the "pithily observed" remarks of RayCJ that "[e]quality of opportunity for unequals can only mean aggravation of inequality"61. BrennanJ remarked that "[t]he validity of these observations is manifest"62.
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.
Seervai's constitutional text is indispensable to every Indian judge and lawyer who ventures upon that realm of discourse. It is a marvellous stimulus to Australian judges and lawyers looking at their own Constitution and seeking guidance from the analogous reasoning of others. 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 India. This is why Seervai's work must not be permitted to become an historical time capsule. This, alas, is what happened to Seervai's admired Australian colleague, W Anstey Wines. But who will be so bold as to update, amend and rewrite the distinctive text of Seervai? A genius of jurisprudence is needed. Seervai's work is honoured in Australia. Because the Constitution is part of the living law, Seervai's death must be seen as a new beginning for his work. Its readers are found in every continent. In Australia, Seervai is honoured. The supplements of the future will bear witness to his impact on Australian constitutional law.
* Adapted and updated from a contribution to the Golden Anniversary Book of the Supreme Court of India, 1999.
** Justice of the High Court of Australia. He acknowledges the assistance of Mr Ben Wickham, legal research officer of the High Court of Australia, in the preparation of this Chapter.
1 cf H M Seervai, Constitutional Law of India (4th ed, 1991) vol 1, 158.
2 Indian Constitution, Preamble, first line. Note Constitution (Forty-second Amendment) Act 1976, s2; 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.
4 Australian Constitution, s61 ["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  1 SCR 814; (74) ASC 2192.
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, s74. 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 Attorney-General (Qld) (1985) 159 CLR 461 at 463-465.
8 M Kachwaha, above n 3, 5.
9 Fertilizer Corporation Kamagar Union v Union of India  AIR (SC) 344; S P Gupta v President of India and Ors AIR  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  HCA 28 at [102-109] where the right of intervention before the High Court of Australia is considered.
11  SCR 1005 at 1024.
12 (1943) 67 CLR 116 at 127.
13  SCR 1005 at 1024,citing cl 2(a) and (b) of Article 25 of the Constitution.
14  SCR 1055 at 1066.
15  1 SCR 173.
16  1 SCR 173 at 224-225 citing (1943) 67 CLR 116 at 124.
17 Australian Constitution, s 51(xxxi).
18  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) 72 ALJR 280; The Commonwealth of Australiav Western Australia (1999) 195 CLR 392.
21  3 SCR 530 at 635.
22  SCR 587 at 610.
23  AIR (SC) 119.
24  SCR 674 at 704. See also State of Karnataka v Ranganatha  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.
26  SCR 491.
27 (1916) 22 CLR 556 at 573.
28  SCR 491 at 521 per Das J.
29  SCR 491 at 545.
30  SCR 491 at 544.
31  SCR 491 at 575.
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  SCR 874 at 906-907.
35  SCR 874 at 918.
36 (1930) 43 CLR 472 at 483.
37  1 SCR 614.
38 See eg Thakkar J in Ram Chandra Mawa Lal v State of Uttar Pradesh  2 SCR 348. For a closely divided recent Australian case see Gould v Brown (1998) 72 ALJR 375.
39  SCR 393.
40  SCR 393 at 425.
41 (1990) 171 CLR 1.
42 (1990) 171 CLR 1 at 20.
43  AIR (SC) 997 at 997-998.
44 Commonwealth v Tasmania (1983) 158 CLR 1 at 165.
45  1 SCR 869 at 879.
46  AIR (SC) 318.
47  SCR 1117 at 1120.
48  2 SCR 715 at 729.
49 (1976) 138 CLR 492 at 529.
50 (1992) 177 CLR 292 at 334.
51  1 SCR 192 at 204-208.
52  3 SCR 760 at 765. The United States decisions include Betts v Brady (1942) 316 US 455 at 476 per Black J and Gideonv Wainwright (1963) 372 US 344-345 per Black J.
53  AIR (SC) 597.
54 Street v Queensland Bar Association (1989) 168 CLR 461 at 527.
55 (1989) 168 CLR 461 at 571-572.
56  AIR (SC) 75 at 93.
57 (1988) 166 CLR 186 at 206.
58  1 SCR 906 at 951.
59 (1985) 159 CLR 70 at 128-129.
60 (1988) 166 CLR 186 at 206.
61  1 SCR 906 at 933.
62 (1985) 159 CLR 70 at 129.
63 (1997) 190 CLR 410 at 497.