CONSTITUTIONAL PERSPECTIVES: ESSAYS IN HONOUR OF H M SEERVAI CONSTITUTIONAL LAW:  INDIAN AND AUSTRALIAN ANALOGUES* The Hon Justice Michael Kirby**

SEERVAI, AND SHARED FOUNDATIONS

 

          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. 

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.

 

          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.

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 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.

CONCLUSION

 

          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.

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