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23 Feb
2021

DIFFERENCES AND THE CHALLENGE

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17DIFFERENCES AND THE CHALLENGEDenning Law Journal 2018 Vol 30 Special Issue pp 17-49THE AUSTRALIAN AND INDIANCONSTITUTIONS, SIMILARITIES,DIFFERENCES AND THE CHALLENGEOF CONSTITUTIONAL CHOICE*The Hon. Michael Kirby AC CMG**ABSTRACTIn this article, based on an address to the India Law Institute in New Delhi, theauthor, a former Justice of the High Court of Australia lists ten features of theconstitutions of Australia and India that exhibit similarities; ten featureswhere there are sometimes marked differences; and two areas of operation thatillustrate the fact that especially in constitutional adjudication, judicial decisionmakers judicial decision-makers face what Julius Stone described as ‘leeways forchoice’. By reference to decisions in Australia and India on issues of race,aboriginality and human sexuality, the article identifes the inescapable challengeof choice and suggests useful guideposts.Keywords: Comparison of the Constitutions of Australia and India; constitutionaladjudication; issues of race, aboriginality and human sexuality.CONSTITUTIONAL SIMILARITIES1. Constitutional Democracies: India and Australia occupy large portions ofthe landmass of planet Earth. India is described as a ‘sub-continent’. Australiacommonly calls itself a ‘continent’, although some reflect this is pretension to viewit as part of the continent of ‘Oceania’. However that may be, both India andAustralia are large portions of the world governed as a single nation. Moreover,they are both parliamentary democracies. Their national governments are electedby direct popular vote in national polls conducted by secret ballot in which the* Text on which was based an address at the India Law Institute, New Delhi, 10 January2018.** Former Justice of the High Court of Australia. Honorary Adjunct Professor O P JindalGlobal University, Delhi, 2018 and Hon. LLD National Law School of India University,Bangalore, 1997.18THE AUSTRALIAN AND INDIAN CONSTITUTIONS, SIMILARITIES,DIFFERENCES AND THE CHALLENGE OF CONSTITUTIONAL CHOICEelectors participate at regular intervals.1 The peaceful and substantially uncontestedconduct of national elections in India is a great achievement of the constitution. Soit is in Australia. Since 1923, in that country, voting in federal elections has beencompulsory for all electors. Defaulters are subject to a small fne. In both countries,the electoral turnout is high.2. Federal System: India and Australia have federal systems of government.Although the federal character is more clearly stamped on the Australianconstitutional system, in practice judicial interpretations of the AustralianConstitution have repeatedly favoured the accretion of constitutional powers to theFederal Parliament.2 In the Australian Constitution a list of specifed legislativepowers are granted to the Federal Parliament. Unless and until exercised by theFederal Parliament, the enumerated legislative powers remain with the states (andself-governing territories).3 A limited list of powers are conferred exclusively on theAustralian Federal Parliament.4 In India, the generally geographical distributionand limitation of powers is provided for.5 The Union Parliament has exclusivepowers to make laws with respect to any of the matters enumerated in the ‘UnionList’ in the schedule.6 In India, there is also a ‘Concurrent List’ in respect of whichthe Parliament and the Legislature of any state share specifed powers.7 As well,the Legislature of any state has exclusive power to make laws for such state, or anypart thereof, with respect to the matters enumerated in the ‘State List’.8Although the federal division of powers in India is an important feature of theConstitution, its federal character is not amongst the stated essential characteristics1 In India the House of the People of Parliament (Lok Sabha) has a maximum ordinaryterm of six years (originally fve years). Indian Constitution [IC], article 83(2) as alteredby Forty-fourth Amendment Act 1978 (In). In the Australian Constitution [AC], the Houseof Representatives serves for a maximum term of three years ‘and no longer’: ACsection 28. The Australian Senate’s ordinary term is six years: AC section 7. In India, theCouncil of States (Rajya Sabha) members also have a six-year term; although one-third ofmembers retire at the end of each two year intervals: IC article 83(1).2 See for example Amalgamated Society of Engineers v Adelaide Steamship Co. Ltd(Engineers Case) [1920] 28 CLR 129, (1921) 29 CLR 406. See also New South Wales vThe Commonwealth (Work Choices Case) [2006] 229 CLR 1.3 AC (n 1) section 51. See also section 109.4 AC (n 1) section 52.5 IC (n 1) article 245.6 Ibid article 246(1). See also the Union List (List I) in IC, 7th Schedule.7 IC (n 1) article 246(2). See also IC, List III, 7th Schedule (‘Concurrent List’).8 IC (n 1) article 246(3), List II.THE DENNING LAW JOURNAL19in the Preamble (‘… A sovereign, socialist, secular, democratic republic’).9 Thecomparative ease of amendment of the Indian Constitution, through parliamentaryprocedures, has reduced the signifcance of the federal divisions because they canbe altered more quickly and readily than under the federal constitutions of theUnited States of America, Canada, Australia and Nigeria.3. Rule of Law: In both India and Australia, the rule of law is a strong featureof constitutionalism. In India, there is an express feature of the Constitution thatestablishes the Supreme Court of India10 and the High Courts of the states.11 Thelaw declared by the Supreme Court of India is binding on all courts in the territoryof India.12 The law declared by a High Court is binding on all subordinate courtswithin the state.13There are no exactly similar provisions in the Australian Constitution, althoughthere is a separate chapter of the Constitution, Ch. III, dealing with ‘the Judicature’.This separate treatment has been held to have important consequences for theindependence, work and role of the courts in Australia.14 The rule upholding thesuperiority of judicial determinations as to the constitutionality and lawfulness offederal, state and territorial laws in Australia was derived from a constitutionalholding copied from the Supreme Court of the United States.15 In this sense, inboth countries, the courts are accepted as having the power to disallow federallegislative, executive and judicial acts. Thus the Supreme Court and, withinjurisdiction, the State Courts are the independent, neutral arbitrators ofconstitutional and other legal questions. Their orders are obeyed as an attribute ofconstitutional obedience. Rarely indeed is it necessary to invoke an offcial toenforce the law against legislative or executive recalcitrance.169 IC (n 1) Preamble.10 IC (n 1) Ch IV.11 IC (n 1) Ch V.12 IC (n 1) article 141.13 IC (n 1) article 226. See also East India Commercial Co v Collector of Customs [1962]SC 1895.14 R v Kirby; ex parte Boilermakers’ Society of Australia [1956] 94 CLR 254.15 Marbury v Madison [1803] 1 Cranch 137. This was the frst Supreme Court decision inthe United States to apply the doctrine of judicial review as to the validity of a congressionalstatute. The decision was copied in the earliest days of the High Court of Australia. Seealso Ah Yick v Lehmert [1905] 2 CLR 593; ex parte Whybrow [1910] 11 CLR 1.16 See however Tait v The Queen [1962] 108 CLR 620, a case of a clash between the HighCourt of Australia and the Executive of the State of Victoria concerning enforcement of adeath sentence pending disposal of an appeal application.204. Character of Supreme Court: As well, in both India and Australia, theappellate jurisdiction is integrated. The Supreme Court is not confned (as in theUnited States) substantially to federal constitutional and legal issues and orders.As in the United Kingdom and Canada, the fnal national court is a general courtof law, resolving both constitutional and general legal disputes and those arising instate as well as federal jurisdiction. The general nature of the courts’ jurisdictionhas influenced the character and self-perception of the fnal national court and thetechniques of reasoning and argumentation.5. Responsible and Representative Government: Although India has aPresident, its system of government is essentially parliamentary, not presidential.The President must, in the exercise of his functions, act in accordance with [the]advice [given by the Government].17 As that great judge of the Supreme Court ofIndia, V R Krishna Iyer, observed in Shamsher Singh v State of Punjab, ‘not thePotomac, but the Thames, fertilises the flow of the Yamuna’.18In the Australian Constitution, the Governor-General is provided for in termsthat likewise (with due adaptations) follow the British Constitution. The executivepower of the Commonwealth is ‘vested in the Queen and is exercisable by theGovernor-General as the Queen’s representative, and extends to the execution andmaintenance of this Constitution, and of the laws of the Commonwealth’.19Although there is a separation of powers in the Australian and IndianConstitutions, between the Executive and Legislative powers respectively as therespecifed, there is no strict separation between the Executive power and theLegislature. The Prime Minister and the Government are elected by the membersof the lower House of Parliament. However, both in India and Australia there isprovided a short period of grace. In the Australian Constitution it is stated that‘no Minister of State shall hold offce for a longer period than three months unlesshe is or becomes a Senator or a member of the House of Representatives’.20 InIndia, it is provided ‘a Minister who for any period of six consecutive months isnot a member of either House of Parliament shall at the expiration of that periodcease to be a Minister’.21 Both in India and Australia, the Prime Minister isformally appointed by the Head of State (the President or in Australia the17 IC (n 1) article 74.18 Shamsher Singh v State of Punjab AIR [1974] SC 2192, 2212 cf. M D Kirby, ‘Foreword’in Lokendra Malik, Selected Reflections on the Indian Presidency: Essay in honour ofPresident Shri Pranab Mukherjee (Satyam Law International 2017) vii.19 AC (n 1) section 61.20 Ibid section 64.21 IC (n 1) article 75(5).THE AUSTRALIAN AND INDIAN CONSTITUTIONS, SIMILARITIES,DIFFERENCES AND THE CHALLENGE OF CONSTITUTIONAL CHOICETHE DENNING LAW JOURNAL21Governor-General representing the Queen). However, in Australia, the PrimeMinister is not mentioned in the Constitution, although constitutionally he or sheis the most important politician and political leader in the country. In India, thePrime Minister is the head of the Council of Ministers22 and is expressly namedin the text. In Australia, whilst a Federal Executive Council is provided for to‘advise the Governor-General in the government of the Commonwealth’23 theselection, appointment and termination of appointment are left to the vestigialprovisions of the Royal Prerogative. In India there is an express duty upon thePrime Minister to furnish evidence to the President as to all decisions of theCouncil of Ministers.24 In Australia, that duty also is governed by establishedconventions and traditions.Under both constitutions, the role of the President or the Governor-General,like that of the British Sovereign, is in the words of Walter Bagehot ‘to advise,encourage and warn’25 the ministers in respect of the advice which they give tohim or her. Whether a republic or a constitutional monarchy, the powers given tothe symbolic head of the Executive are not those of a ‘rubber stamp or a glorifedcypher’.26 In neither Constitution is there an express power in the President or theGovernor-General to dismiss a Prime Minister for a perceived breach of duty.27 InIndia, it is said that such power resides in Parliament. But in Australia, it has beenexercised by the Governor-General and by State Governors, invoking the RoyalPrerogative, said to be implied by the role, title and functions of the Vice Regalrepresentatives.2822 IC (n 1) article 74(1) cf. Government of India Act 1935 (UK), sections 10(4) and 51(4).23 AC (n 1) section 62. These gave rise to the controversy, in November 1975, whenGovernor-General Kerr terminated the commission appointing E G Whitlam as PrimeMinister of Australia, notwithstanding that he continued to enjoy the support of a majorityin the House of Representatives. The Governor-General then appointed the Leader of theOpposition (M Fraser) as caretaker Prime Minister on condition that he would securesupply and proceed immediately to a federal election (which he did and in which he wasreturned to offce).24 IC (n 1) article 78.25 Shamsher Singh (n 18) 2212. See also Walter Bagehot, The English Constitution(Chapman and Hall 1867, Fontana Press 1991) 113 on the right of the President of India torelevant information. See also Malik (n 18) 94–95. See also IC (n 1) article 78.26 Malik (n 18) 94.27 Malik (n 18) 104.28 The Kerr/Whitlam Case (1975) was preceded in Canada by the case of GovernorGeneral Lord Byng of Vimy and Prime Minister McKenzie-King (1926) and by a case inNew South Wales, Australia in 1932 (Governor of Philip Game and State Premier J Lang).See also Kirby (n 18) ix.22The United States Constitution, on the other hand, was greatly influenced bythe then unevolved version of the British Constitution as understood by theAmerican settlers at the time of the American revolution. The President wasmodelled on the British monarch who, at the time, was often an active and powerfulhead of the Executive. Subsequent to 1776, the British Constitution continued toevolve to the form of constitutional monarch recognised today. That formemphasises the predominance of Parliament. The Westminster system affords amore swift and flexible means of terminating an incompetent, unpopular ormisbehaving head of government. The resulting political system chooses itsleaders from politicians who have typically already been tested in the parliamentarychamber. It is less prone to executive autocracy. Whilst it has its own weaknesses,most observers, including some in the United States today, consider it a preferable,flexible form of government, when contrasted to the presidential system.291. Separating head of state and government: Consequent on the previous pointof similarity, is the way the Indian and Australian forms of constitutionalgovernment separate the ceremonial, military and bureaucratic functions of thechief executive from the functions of Head of Government.30 The differentiation isexpressly reflected in the Indian Constitution by the description and powers of thePresident and Prime Minister. The head of state enjoys control over the grant ofpardons and commutation of sentences.31 It is a considerable burden to impose onone individual (even enjoying powers of delegation) to perform so many timeconsuming functions where the powers of head of state and head of governmentare combined as in most presidential models. Simply receiving the credentials ofdiplomats, participating in military and civil ceremonies, retaining engagementwith huge modern bureaucracies and being involved with the vast modern civilsociety consume inordinate time. Such functions necessarily distract the politicalhead of government from the burdensome functions of actual political, economicand social leadership. They also combine in the one-person functions that aredesigned to be uniting, neutral and shared by all people with functions that tend tobe contested and even divisive, concerning the economic, political and socialdifferences that inevitably exist in a modern society.29 Professor Bruce Ackerman (Yale University) has written on the advantages of theparliamentary system. Many consider that the model of Executive President placesimpossible and undue demands on the Chief Executive.30 IC (n 1) article 53(1) and (2). See also article 74, 75 and 78. Cf. AC (n 1) sections 61, 68and 70.31 IC (n 1) article 72(1).THE AUSTRALIAN AND INDIAN CONSTITUTIONS, SIMILARITIES,DIFFERENCES AND THE CHALLENGE OF CONSTITUTIONAL CHOICETHE DENNING LAW JOURNAL23In this sense, the differentiation in functions, reflected in the parliamentarysystem operating in India and Australia, is more apt to the modern age and to thefunctions of the two offces. In essence, those functions are separate and different.The proper place for the head of government is in the place where politicalgovernment mostly goes on, namely parliament. The proper place for the head ofstate is in the Chief Executive’s mansion. Moreover, conferring on a head ofgovernment of the role of commander-in-chief of the military forces may beprone to result in false or undesirable opinions to be formed as to the ambit andavailability of such powers. The lesson of history is that it is preferable to keepthem separated.322. Legal traditions: Many of the distinctive legal traditions of India andAustralia are identical or similar. The judges of the superior courts are commonlyrespected and uncorrupted. The robes of judges and advocates are similar,especially now that Justices of the High Court of Australia, the Federal Court ofAustralia and other courts have dispensed with the wearing of wigs. Judges aregiven deferential titles (in India ‘My Lord’ and in Australia ‘Your Honour’). Underthe provisions of the respective constitutions, the appointment of superior courtjudges is made by the Executive Government. Except that the members of theExecutive must participate in and be answerable to Parliament, there is noprovision akin to engagement with the legislature in the confrmation of judicialappointments as for federal judges in the United States.33 The sole obligation uponthe Executive in India is to ‘consult’ with judges, including always in the case ofthe appointment of a judge other than the Chief Justice of India to consult with theholder of that offce.34In Australia, the Executive power of appointment is, so far as the Constitutionis concerned, plenary and uncontrolled.35 A statutory provision in Australia nowrequires ‘consultation’ with state governments in respect to appointments to theHigh Court of Australia.36 Whereas in Australia, ‘consultation’ means just thatand implies a serious but not binding process of discussion, in India, as a result ofthe Judges Cases the requirement of ‘consultation’ has (by a narrow judicialmajority) been held to afford a virtual veto to the Chief Justice or to a Collegium32 IC (n 1) article 53(2); AC (n 1) section 68.33 IC (n 1) article 124(2).34 Ibid.35 AC (n 1) section 72(2).36 High Court of Australia Act 1979 (Cth), section 6 (‘Consultation with State AttorneysGeneral on appointment of Justices’).24of senior justices. Justice Krishna Iyer criticised this as a ‘judicial coup’ affectingthe process of judicial appointment.37Both in India and Australia, there are strong constitutional provisionsprotecting the tenure of superior judges, Federal and State, by the imposition ofthe necessity of affrmative parliamentary vote for the removal of judges fromoffce. In India there is a further limitation for such removal to the approval of amajority of not less than two-thirds of the members of the House present andvoting upon a motion alleging ‘proved misbehaviour or incapacity’.38 So severe arethese requirements that they have rarely been invoked and most diffcult to secure.In Australia, the power has never been invoked in the Federal sphere and has onlyonce succeeded in the state sphere.3. Territories: Both in India and Australia, territories are generally theconstitutional responsibility of the Federal Government, with an administratorappointed to be the Chief Executive.39 In the Indian case, provision was originallymade for forms of self-government for Union territories, contemplating applicationby Goa, Daman and Diu (previously Portuguese colonies). The provision laterextended to the territory of Pondicherry (previously a French colony).In Australia, self-government was successively enacted for the electors in theNorthern Territory of Australia and the Australian Capital Territory. In each ofthese territories a unicameral legislature has been created by federal legislation.Although the Federal Parliament has the power to disallow legislation enacted bythe Territory legislatures, this step has only once been taken in each case.40 InIndia, an express constitutional amendment was adopted to permit a high measureof self-government in the national capital territory of Delhi.41 The representationof the electors of the Commonwealth in the territories was expressly contemplatedby the Australian Constitution.42 Despite two challenges; legislation for the37 V R Krishna Iyer J [‘Judicial coup’ in Judges Cases].38 IC (n 1) article 124(4); AC (n 1) section 72(ii). In the Australian Constitution an ‘address’to the Governor-General from both houses is required, inferentially a single majority willsuffce.39 IC (n 1) article 239 A; AC (n 1) section 122.40 In the case of the Northern Territory of Australia, to disallow legislation of euthanasia,enacted by the Legislative Assembly. In the case of the Australian Capital Territory, todisallow legislation successively enacted to permit ‘civil unions’ and then ‘civilpartnerships’ for same-sex couples.41 IC (n 1) article 239.42 AC (n 1) section 122 (‘May allow the representation of such territory in either House ofthe Parliament to the extent and on the terms to which it thinks ft’).THE AUSTRALIAN AND INDIAN CONSTITUTIONS, SIMILARITIES,DIFFERENCES AND THE CHALLENGE OF CONSTITUTIONAL CHOICETHE DENNING LAW JOURNAL25representation of the electors in the territories in the Federal Parliament was twiceupheld by the High Court of Australia.434. Common market: One of the most important provisions of the AustralianConstitution was that which ensured that throughout the continental nation therewould be a common single market which could not be diminished by state lawsthat imposed taxes or fscal impediments aimed at securing local advantage. In theAustralian case, the provision (which became one of the most litigated under theConstitution), s.92, declared that ‘on the imposition of uniform duties of customs,trade, commerce and intercourse among the states, whether by means of internalcarriage or ocean navigation, shall be absolutely free’.44This provision was influential in the drafting of article 301 of the IndianConstitution. This declared that ‘subject to the other provisions of this Part, trade,commerce and intercourse throughout the territory of India shall be free’.45There were, of course, important textual differences between the twoprovisions. The adjective ‘absolutely’ was prudently deleted from the Indiantext. As well, specifc contemplation of the enactment of derogations wasmentioned in the Indian case. Moreover, the derogations referred to inPt XIII of the Indian Constitution were expressed in broad terms such as‘public interest’46 and ‘reasonable restrictions’.47 Notwithstanding thesedifferentiations, and the practical necessity in Australia to read down somewhatthe requirement of ‘absolutely free’, the respective provisions have been utilisedin the development, under both constitutions, of a free market avoiding informaltaxes whilst allowing sensible regulatory control.48 The adoption of a commonmarket in both countries has been an extremely important contribution by theconstitution and lawyers to the economic advancement of each country.Economic development goes hand in hand with legal, social and humandevelopment. The free market provisions in India and Australia have beenextremely important for nation-building and preventing the dangers of selfshlocalism in each country.43 Western Australia v The Commonwealth (First Territory Senators’ Case) [1975] 134CLR 201; Queensland v The Commonwealth (Second Territory Senators’ Case) [1977]139 CLR 585.44 AC (n 1) section 92.45 IC (n 1) article 301.46 IC (n 1) article 302. But see article 303.47 IC (n 1) article 304(b) but subject to a proviso.48 See for example Automobile Transport (Rajasthan v State of Rajasthan [1963] SCC491, 521 (Das J) applying Duncan v State of Queensland [1916] 22 CLR 556, 573.265. Specially vulnerable citizens: Both in India and Australia, it was recognisedthat there were specially disadvantaged groups and individuals who might needextra protection under the constitution and legal differentiation for that purpose.The vulnerable communities were, in each case, a product of history.In Australia, the point of differentiation was generally race, skin colour andethnic culture. In India the points of differentiation were caste, religion andassociated prejudices. In Australia, the colonists faced opposition from the BritishGovernment and the Imperial Parliament in relation to their endeavours to imposeracial differentiations that were deemed embarrassing in other British possessions.However, the Australian colonists insisted on a ‘White Australia’ immigrationpolicy in the 19th century and much of the 20th. That policy was to last in all,nearly seventy years. The settlers, voting through their colonial legislatures, alsoinsisted on a power to enact laws based on racial grounds and on discriminationagainst the Aboriginal people of the continent.In India, the points of differentiation included religious differences that wereultimately to result in the Partition of the former British India and an only partlysolved problem affecting ‘certain classes’, namely ‘the scheduled castes’ and ‘thescheduled Tribes’ in the autonomous districts of Assam.49 In India, specialrepresentation for the ‘Anglo-Indian community’ was also provided for in theHouse of the People.50The adoption in Australia of a specifc power in the Federal Parliament toenact laws ‘with respect to the people of any race, other than the aboriginal race inany state, for whom it is deemed necessary to make special laws’51 was notintended to be a provision for the rapid advancement of minorities by reference totheir races. Essentially, it was intended to be a federal power to continuediscriminatory laws on the grounds of race that had existed in colonial times.These included laws adverse to the rights of Aboriginal people of Australia; butalso to Torres Strait Islanders, Pacifc Islanders and people of Chinese and otherAsian origins. The settlers believed that they were entitled to maintain a societysimilar to that built by their settler forebears. That required, so they thought, thepower to exclude, disadvantage or expel non-Caucasian people.Eventually, in 1967, by one of the rare alterations to the AustralianConstitution adopted with the approval of the electors,52 the exclusion ofauthority to make laws for the Aboriginal race in any state was itself removed.49 IC (n 1) pt xvi, article 330.50 IC (n 1) article 331.51 AC (n 1) pt xxvi, section 51.52 AC (n 1) section 128. The constitutional amendment was effected by ConstitutionalAlteration (Aboriginals) 1967 (Cth) Act No 55 of 1967.THE AUSTRALIAN AND INDIAN CONSTITUTIONS, SIMILARITIES,DIFFERENCES AND THE CHALLENGE OF CONSTITUTIONAL CHOICETHE DENNING LAW JOURNAL27This permitted the Federal Parliament, thereafter, to make special laws forpeople of the Aboriginal race. This was intended to be for the advancement ofsuch people in Australia under federal law. Another prejudicial provision waswholly repealed, namely section 127 of the original Australian Constitution.This had relieved the federal authorities from counting the Aboriginal populationin the national census. That provision had assumed that the Aboriginals wouldbasically disappear by assimilation and that counting them was more troublethan it was worth.The divisive burden of Australian constitutionalism was therefore race. Inpart, this remains the present position as recent enactments on the treatment ofrefugee applicants demonstrate. The burden in India was principally religion,and specifcally as between Hindus and Islamic Indians. This was, in part,resolved by the division of the sub-continent in 1947. However, empowerment ofspecial provisions for the representation and different treatment of Indiannationals by reference to their caste and tribe (where such special provision wasthought necessary) was adopted. In neither the Australian nor Indian case wouldlaw, or a bold stroke of the constitution, remove the derisive burden on eachsociety. Law, and legal discrimination, are only part of the problem. BothAustralia and India remain today subject to special constitutional provisionsaddressed to race (in the case of Australia) and to caste and tribe (in the caseof India).Neither India nor Australia has resolved their deep social challenges on thebasis of these respective constitutional provisions.53 However, those provisionshave signalled that this is a challenge to be addressed. It is work in progress. Ineach case, it is a challenge that edits on the face of constitutional text.CONSTITUTIONAL DIFFERENCES1. Autochthonous law: The Australian Constitution is, historically, a productof an Imperial statute enacted by the UK Parliament.54 In subsequent judicialreasoning, the High Court of Australia has declared that the true foundation of thesovereignty expressed in the Australian Commonwealth is the will of theAustralian people.55 Although that will was expressed historically in referendumssupporting the successive draft texts for the Australian Federal Constitution in the53 Kartinyeri v The Commonwealth [1998] 195 CLR 337.54 Commonwealth of Australia Constitution Act 1900 (Imp) (63 & 64 Vict c 12).55 Kirmani v Captain Cook Cruises Pty Ltd [1985] 159 CLR 351, 441–42; Breavington vGodleman [1988] 169 CLR 40, 123; Leeth v The Commonwealth [1992] 174 CLR 455,485–86; McGinty v Western Australia [1996] 186 CLR 140, 230.281890s, the fact remains that it was considered necessary for the Australian coloniststo procure the transfer of legislative power by an imperial enactment. This wasalso the way in which legislative power was transferred initially to the originalAmerican colonies of Great Britain and subsequently to Canada (1867), NewZealand (1907), South Africa (1910) and Ireland/Eire (1923). The original plan forIndia was for a similar imperial statute (New Zealand’s alteration had been byroyal proclamation) constituting the Dominion of India,56 a plan postponedfollowing the outbreak of War in 1939 until the end of hostilities.57 Eventually, itwas given effect with the partition and independence of India in 1947.After 1949, the character and status of the Indian Constitution was different.The Constitution of India begins, in its Preamble, with the assertion:‘We, the people of India, … in our Constituent Assembly this twenty sixth dayof November nineteen forty nine do hereby adopt, enact and give to ourselvesthis Constitution.’58Inevitably, both in Australia and India, there are legal links to the precedingenactments of the United Kingdom Parliament. Those links are unbroken in the caseof Australia. In the case of India they are deliberately severed by the interposition ofthe Constituent Assembly and the specifcation, in terms, of the source of the popularauthority for the Indian text. Nehru and other independence leaders such as Jinnahwere insistent on this severance. Whatever arguments can still arise in Australiaabout the Grundnorm of the Australian constitution59 there is no such doubt in thecase of India. Politically, spiritually and textually, it is people of India.2. Crown and republic: Consistent with this change, a fundamental feature ofthe basic structure of the Constitution of India is that it is a sovereign, democraticRepublic.60 Australia, on the other hand, is a constitutional monarchy. By section 2of the Imperial Act of 1900 it is stated that ‘the provisions of this Act referring tothe Queen shall extend to Her Majesty’s heirs and successors in the sovereignty of56 Government of India Act 1919 (UK); Government of India Act 1935 (UK) and IndianIndependence Act 1947 (Imp) (10 & 11 Geo VI ch 30) section 7. See now IC (n 1)article 6(b) and 8.57 IC (n 1) article 6(b), 361A(15) and 367(1).58 IC (n 1) Preamble.59 A ‘fundamental’ or ‘basic’ legal norm or foundation of the Constitution. See J Stone,Human Law and Human Justice (Maitland 1965) 233–36 discussing G Radbruch’sGrundnorm.60 IC (n 1) Preamble.THE AUSTRALIAN AND INDIAN CONSTITUTIONS, SIMILARITIES,DIFFERENCES AND THE CHALLENGE OF CONSTITUTIONAL CHOICETHE DENNING LAW JOURNAL29the United Kingdom’.61 The oath of allegiance contained in the schedule of theAustralian Constitution requires loyalty to the Queen ‘her heirs and successorsaccording to law’.62 The oath of allegiance provided for in the Third Schedule tothe Indian Constitution requires ‘true faith and allegiance’ to ‘the constitution ofIndia, as by law established’.63Although there had been discussion in the Australian colonies, prior toFederation, about adopting a republican form of government, after the model ofthe United States of America, this was not favoured by a majority, at that time. Aproposal, by referendum, to delete references to the Queen and the Crown in theAustralian Constitution was submitted to the electors of the Commonwealth in1999. It did not secure a majority vote of the electors in a single state, although theAustralian Capital Territory voted in favour.64 Discussion concerning a republicon the demise of the Crown has again arisen in Australia. However, change maybe delayed during the life of the present monarch. Many previous dominions ofthe Crown (although not all) became republics upon achieving self-governmentand independence after 1947.The compromise formula by which King George VI became ex offcio theHead of the Commonwealth of Nations was invented by Prime MinisterJawaharlal Nehru and was adopted at the Commonwealth Prime Ministers’Conference in 1949.65 When Dr Daniel Malan of South Africa said that such adivision of functions was impossible in the case of a monarch who was a livingperson, Nehru replied:Have you perhaps heard of the Father, the Son and the Holy Ghost?66Divisibility was then accepted. India, as Australia wished, remained a memberof the ‘Commonwealth of Nations’. It is not properly styled the BritishCommonwealth. It is a group of independent nations most (but not all) of whichare now republics and most (but not all) have a history of British colonial rule.6761 Imperial Act 1900 section 2.62 AC (n 1) Schedule.63 IC (n 1) Schedule III.64 The Republican referendum was held on 6 November 1999. It resulted in a 44.74 percent voted in favour; 54.40 per cent against.65 D Fettling, ‘When Chifley Met Nehru: Compromise in the International Order’ in JSchultz and J Camens (eds), Commonwealth Now (59th edn Griffth Review, 2018) 68, 74.66 Ibid.67 For example, Mozambique and Rwanda were never ruled by Britain. Cameroon was acondominium as were the New Hebrides (since 1980, Vanuatu).30India became a republic. So, later, did Pakistan, Sri Lanka and Bangladesh. Burma(Myanmar) did also, although it did not apply to join the Commonwealth ofNations.The Nehru compromise, continued on the accession to the Crown of QueenElizabeth II. It remains in place to this day. India remains a republic. Australiaremains a constitutional monarchy. The monarch of the United Kingdom (andother realms and territories, including Australia) remains, at least at this timeHead of the Commonwealth.3. Evolution and freedom struggle: Whereas Australia’s emergence as anindependent nation was gradual and substantially evolutionary, India’s was theresult of a long and sometimes bitter struggle, involving bloodshed, theimprisonment of many Indian leaders and acrimony together with recriminations.There was some acrimony concerning particular aspects of the proposedAustralian constitution. Most of the differences in the negotiations concerned theretention of the Judicial Committee of the Privy Council. Some Australiancolonists urged termination of appeals, noting the diffculty that British offcialsincluding judges had with understanding federalism, a concept alien to their legaland constitutional system. The British negotiators, led by Joseph Chamberlain,Secretary of State for the Colonies, considered that the Privy Council should beretained, in part (inferentially) to protect the large British investments inAustralia.68In the end, the draft Australian Constitution submitted by the colonists wasamended to retain appeals to the Queen in Council, including in defnedconstitutional matters. However, two exceptions were provided. There were to beno appeals in questions involving the limits of constitutional powers in respect ofa contest between federal and state powers. And the Federal Parliament wasempowered to ‘limit’ matters in which leave might be asked of the Privy Council.Any law providing such proposed limitations was required to be reserved for thepersonal decision of the monarch.69 Eventually, by an enactment of the FederalParliament and each State Parliament and of the United Kingdom Parliament in1984, all remaining Australian appeals to the Privy Council were ended by theAustralia Act 1986.In India, from the start of the republican instrument, the constitution providedfor a completely independent system of courts. Indeed, it provided not only for the68 D Headon and J Williams, Makers of Miracles – The Cast of the Federal Story(Melbourne University Press 2000) 202–08.69 AC (n 1) section 74.THE AUSTRALIAN AND INDIAN CONSTITUTIONS, SIMILARITIES,DIFFERENCES AND THE CHALLENGE OF CONSTITUTIONAL CHOICETHE DENNING LAW JOURNAL31national Supreme Court70 and the High Courts of the states,71 but also for theappointment of subordinate courts72 and for High Courts in the Union territories.73It allowed no exceptions and specifcally no residual right to appeal to the PrivyCouncil. The important role that Court and the earlier Federal Court of India hadplayed in the governance of India was brought to an end. Citation of Indian PrivyCouncil and Federal Court authorities continued, as part of the seamlesspreservation of existing legal rights and duties, not otherwise affected by theIndian constitution. Seamlessly, the last Chief Justice of the Federal Court of India(Justice Sir Harital Jekisundas Kania) became the frst Chief Justice of the SupremeCourt of India on 26 January 1950.4. Subject and citizen: At the time of Federation, Australians enjoyed a singlenationality, namely that of British subject. This had also been the status of allpersons in British India. Upon federation, both countries contemplated theretention of a single, undivided nationality. Upon the advent of the republic inIndia, the status of subject of the British Crown was terminated.74 Provision wasmade for the citizenship of persons born in the territory of India or either of whoseparents had been born in that territory.75 Particular provision was made to coverthe influx of persons whose parents or grandparents had been born in India, asdefned by the Government of India Act 1935.76The status of citizenship of Australia was not expressly mentioned in itsConstitution. No power was conferred expressly to enact a law on citizenship; butthere were express provisions to allow the Federal Parliament to make laws inrespect to ‘naturalization and aliens’;77 and ‘immigration and emigration’.78Moreover a provision for the disqualifcation of election to the Federal Parliamentincluded any person who ‘is under any acknowledgement of allegiance, obedience70 IC (n 1) pt V, ch IV, article 124–47. See also pt V, ch VI.71 IC (n 1) article 125–38.72 IC (n 1) pt VI, ch VI.73 IC (n 1) pt VIII, section 241. See also pt XVIA (‘Tribunals’).74 Cf. Joyce v Director of Public Prosecutions [1946] AC 347 (HL). The defendant was aUS citizen but held a British passport. After the outbreak of war in 1939 between GreatBritain and Germany, Joyce broadcast talks in English hostile to Britain. His conviction oftreason was upheld despite his assertion of termination of his status as a British subject.Cf. now in Australia Re Canavan [2017] 91 ALJR 1209 concerning section 44(i) of theAC (n 1).75 IC (n 1) article 5.76 Ibid article 6(a) and (b). See also article 7.77 AC (n 1) section 51(xix) 71.78 AC (n 1) section 51 (xxvi).32or adherence to a foreign power, or is a subject or a citizen or entitled to the rightsand privileges of a subject or a citizen of a foreign power’.79The frst mention of Australian citizenship appeared in a 1948 federalstatute.80 Until much later, Australians travelling overseas carried a passportdeclaring they were a ‘British subject and Australian citizens’.81 It was by theprovisions of the Indian Constitution, and local law, that Australians andIndians for the frst time in 1950, in the case of most, obtained a differentnationality status. Determined to carve out different, distinctive and localcitizenship, India originally went in a direction different from Australia.However, subsequent Australian legislation proceeded to catch up. It droppedreferences to the status of ‘British subject’ and, for the future, removed theprivileged treatment that United Kingdom citizens had essentially enjoyedequivalent to the rights of Australian citizens.82 In this matter, India led theway. Australia followed as it ought to assert, and provide for, its separatenationhood.5. Fundamental rights: It is not quite true to say that the AustralianConstitution contains no provisions for the protection of the fundamental rightsof those living under its protection. Thus, a number of express provisions protectthe right to enjoy just terms on the acquisition of property under federal law;83and the right to trial by jury in certain federal criminal matters.84 Moreover,non-discrimination against residents of different states is guaranteed;85 as is thefree exercise of any religion and invalidation of establishing a religion, imposingreligious observance or obliging religious tests to be applied as a qualifcation tospecifed offces.86 There are also implied protections in the AustralianConstitution against laws interfering with free speech, essential to the attainmentof the democratic system established by the Constitution.87 Additionally, thereare implied guarantees of judicial independence and impartiality that have been79 AC (n 1) section 44(i).80 Australian Citizenship Act 1948 (Cth).81 Kim Rubenstein, ‘Citizenship and the Centenary – Inclusion and Exclusion in20th Century Australia’ (2000) 24 Melb U L Rev 576, 582–88.82 Re Patterson; ex parte Taylor (2001) 207 CLR 391.83 AC (n 1) pt xxxi, section 51.84 AC (n 1) section 80.85 AC (n 1) section 118.86 AC (n 1) section 116.87 Lange v Australian Broadcasting Corporation [1997] 189 CLR 520.THE AUSTRALIAN AND INDIAN CONSTITUTIONS, SIMILARITIES,DIFFERENCES AND THE CHALLENGE OF CONSTITUTIONAL CHOICETHE DENNING LAW JOURNAL33spelt out from the separate constitutional treatment of the Judicature.88 It hasalso been repeatedly said that the Constitution impliedly demands observance ofthe rule of law.However, the foregoing list constitutes a meagre collection of rights whencontrasted with those in the Indian Constitution. Emphasising their importance,‘Fundamental Rights’ are collected in Pt. III of the Indian Constitution. Theyinclude the rights to equality; to freedom; to protection against exploitation; tofreedom of religion; and to cultural and educational rights.The foregoing provisions, followed immediately by pt IV of the IndianConstitution (‘Directive Principles of State Policy’), indicate more clearly the wayin which that charter is designed to enlarge and protect the rights of natural andlegal persons in India. By way of contrast, the Australian document basicallyleaves the protection of such rights to the enactments of the Parliament, on theassumption that (being regularly democratically elected) it will safeguard theprovision of fundamental rights to those subject to its enactments.Unfortunately, much experience shows that, whilst an elected legislature isgenerally well placed to protect and respond to pressure from majorities andpowerful interests, it is not necessarily so well organised (or inclined) to protectvulnerable and unpopular or comparatively powerless minorities.89 Therecognition that this was so explains the adoption of the United Statesconstitutional Bill of Rights and similar provisions in virtually all nationalconstitutions drafted in the 20th century. The Australian Constitution, havingoriginated in the 19th century, reflects a somewhat naive faith in the legislaturethat sometimes needs to be supported, stimulated and provoked by theintervention of courts, tribunals and offcials. The Directive Principles of StatePolicy in the Indian Constitution copied an idea borrowed from the IrishConstitution of 1923. It is the early drafting and duration of the AustralianConstitution that explains why it is largely bereft of express provisions protectingfundamental rights and desirable policies. The Canadian Constitution has nowbeen supplemented by the Canadian Charter of Rights and Freedoms. In NewZealand, general human rights laws have been enacted based on international88 AC (n 1) ch III. See R v Kirby; ex parte Boilermakers’ Society [1956] 94 CLR 254; cf.IC (n 1) article 50 (Separation of Judicial from Executive Power).89 The Melbourne Corporation v The Commonwealth [1947] 74 CLR 31, 82; PlaintiffS157/2002 [2003] 211 CLR 476, 513 [103]; Durham Holdings Pty Ltd v New South Wales[2001] 205 CLR 399.34treaty law, as has also happened in the United Kingdom, the original source ofhostility to such provisions.90The South African Constitution has now embedded large and novel provisionsas to basic rights.91 It now contains substantial statutory protections of fundamentalrights. However, an attempt to insert various protections against state laws in theAustralian Constitution failed in 1988. Two legislative attempts and manyproposals for a federal statute of fundamental rights in Australia have failed toattract federal parliamentary support. The usual explanation given is that suchlaws would create activist judges; politicise the judiciary; diminish the legislature;and are not needed in a democratic society.6. Protection of religious freedom: Although, as stated, the AustralianConstitution does contain some provisions for the protection of freedom of religion,the language of s.116 of the Australian Constitution has been given a very narrowreading by the High Court of Australia. Although in one case the court defnedreligion broadly, emphasising a universal spirituality over a particular religiousdoctrine,92 in another, a majority of Justices gave the prohibition on the‘establishment’ of religion an extremely narrow meaning.93 That meaning wassuggested to be, essentially, to prevent any religion being given the status of theestablished state religion, as enjoyed by the Church of England in the UnitedKingdom. Because any such risk had receded following the earliest days ofAustralian colonisation, this was an interpretation that ignored the background ofhistory against which the Australian Constitution had been written. It also failed togive the guarantee any functional work to do. Yet such work was necessary toprevent the abuse of political power by religious organisations and the effectiveimposition of religious beliefs upon persons who did not share those beliefs,especially when done at public expense.This was a necessity appreciated by the decisions of the Supreme Court of theUnited States, dealing with substantially the same language contained in the First90 Human Rights Act 1993 (NZ). See further G Palmer and M Palmer, Bridled Power,New Zealand Government Under MMP (OUP 1987) 229–31, 265; Human Rights Act1998 (UK).91 For example, provisions forbidding discrimination on grounds of sexual orientationand providing for economic social and cultural rights (right to healthcare, housing, etc.).92 Church of the New Faith v Commissioner of Payroll Tax (Vic) [1983] 154 CLR 120.93 Attorney-General (Vic) ex rel Black v The Commonwealth (Defence of GovernmentSchools Case) [1981] 146 CLR 559; Luke Beck, Religious Freedom and the AustralianConstitution (Routledge 2018).THE AUSTRALIAN AND INDIAN CONSTITUTIONS, SIMILARITIES,DIFFERENCES AND THE CHALLENGE OF CONSTITUTIONAL CHOICETHE DENNING LAW JOURNAL35Amendment to that country’s constitution.94 In the United States, strict limitshave been imposed on public fnancial support for religious institutions.95 InAustralia, direct subventions to organised religious bodies to support their schoolsand other institutions have been upheld. So too have been provisions to supportreligious events and celebrations (like World Youth Day).967. Secularism: In India, the divisions between Hindu, Sikh and Buddhistmembers of the population and Islamic adherents erupted into bloody conflictduring the Partition in 1947–49. That action followed the decision to create twosuccessor states to the Dominion of India, namely India and Pakistan. That terribleperiod of conflict has had no parallel in Australia where, until recently, theoverwhelming majority of the population identifed as Christian, although dividedinto denominations often reflecting traditional animosities and rivalries. Eventhese divisions have been reduced in importance in recent decades in Australiawith the decline in church attendances by the population and the increasingnumber of Australian citizens responding to the national census question that theyhave ‘no religion’ (currently about 20 per cent).The commitment to a ‘secular’ republic in the Preamble to the Constitution ofIndia confrms that, unlike Pakistan, the Indian State has no offcial religion. ThePreamble is part of the Constitution of India. It asserts that the state makes nodiscrimination on the grounds of religion. Reinforcing this ideal, article 25 of theConstitution declares that ‘all persons are equally entitled to freedom of conscienceand the right freely to profess, practise and propagate religion being available toall religions equally’. This provision has been viewed as conducing to secularism.The specifc relevance to the active engagement of professing, practising andpropagating religion has been held to take the protection of the Indian provisionbeyond holding or believing particular aspects of religious faith or doctrine.97 Theright to communicate beliefs has held not to include a right to forcible instructionor conversion.98 Limits are specifcally spelt out on the imposition of taxes, theproceeds of which are appropriated in payment of expenses for the promotion ormaintenance of any particular religion or religious denomination.99 Nor may94 Lemon v Kurtzman 403 US 602 [1971]. See also Everson v Board of Education ofEwing (1947) 330 US 1.95 Larkin v Grendel’s Den Inc [1982] 459 US 228.96 Defence of Government Schools Case (n 93).97 Kesavananda Bharati v State of Kerala [1973] 4 SCC 225.98 Commission for Hindu Religious Endowment v Lakshmindra [1954] SCR 1005;Stainslaus v State of MP [1977] SC 908.99 IC (n 1) article 27.36religious instruction be provided within any educations institution ‘whollymaintained out of state funds’.100 This last provision contrasts with a practice thatcrept into some colonial laws during the 19th century in Australia, by which‘special [religious] instruction for one hour a week’ was permitted in publiclyfunded schools.101 This ‘compromise’ continues to be followed in most parts ofAustralia more than a century later. In some states parents and children can optout of such denominational religious instruction.102Although in India the affrmative protection of ‘freedom of conscience’ andthe free ‘practise … of religion’ does not extend expressly to ‘freedom fromreligion’, i.e. the entitlement to be free from propagation or practice of religiousbeliefs, such a freedom is inherent in secularism. It involves reading down thereligious entitlements of some people so as not to be inconsistent with the religiousand non-religious entitlements of others.The secular character of government, enshrined expressly in the IndianConstitution and partly expressly and partly implicitly in the AustralianConstitution are amongst the most valuable characteristics of the respectivegovernmental qualities, derived from the general tradition of the United Kingdomand its laws. In Australia, because of the narrow interpretation of the prohibitionsin s.116 of the Australian Constitution, controversial decisions have sometimesupheld contested taxation advantages for religious institutions.103 With the growthof the political influence of faith organisations, associated with particular religions,in both India and Australia, it must be expected there will be more challenges tothe ambit of constitutional guarantees and prohibitions on the grounds of religionin coming years.8. Judicial appointment and retirement: Initially, the Australian Constitutionmade no provision for the retirement for the Justices of the High Court ofAustralia or other federal courts, once appointed. This omission was interpretedby the High Court of Australia to imply that, as in the United States, federaljudges were appointed for life. In the Australian colonies and later the states,legislation provided for the retirement of judges. The retiring ages differed,100 IC (n 1) article 28.101 The Education and Training Reform Act 2006, section 2.2.11.102 See for example Public Instruction Act 1880 (NSW) sections 17–18.103 Federal Commissioner for Taxation v Word Investments Pty Ltd [2008] 236 CLR 204in which a taxation advantage for a religious organisation, whose objectives included thepropagation of religion, was extended (over the writer’s dissent) to a funeral business. SeeWord Investments 252, [124]. The legislative provision was subsequently corrected toreflect the minority view.THE AUSTRALIAN AND INDIAN CONSTITUTIONS, SIMILARITIES,DIFFERENCES AND THE CHALLENGE OF CONSTITUTIONAL CHOICETHE DENNING LAW JOURNAL37mostly according to the status of the court to which the judge was appointed.Most State Supreme and District Court judges served to age seventy(in Victoria 72). Magistrates and some Industrial Court Judges served to agesixty-fve. In recent years, these retiring ages have been increased in theAustralian States and Territories to age seventy-two and in some cases (withapproval of the Chief Justice) to age seventy-fve.The introduction of a power to enact an age of retirement for federal judgeswas addressed in an amendment to the Australian Constitution adopted followingthe Constitution Alteration (Retirement of Judges) 1977. That alteration expresslyprovided, in respect of Justices of the High Court, that future appointees couldserve until attaining the age of seventy years. It was left to the Parliament to decidethe maximum age of retirement for other federal judges, although the maximumwas later enacted as seventy years.104The term of appointment of Justices of the Supreme Court of India lasts ‘untilhe attains the age of sixty-fve years’.105 The term of a judge of a State High Courtis until he attains the age of sixty-two years.106 These are very low judicialretirement ages by comparison with most countries. They are influenced by theprovisions formerly applicable to the judiciary in colonial times and in theDominion of India where most of the judges, before 1935, were British offcialswho returned ‘home’ on pensions after the completion of their judicial service.There appears to be no good reason of principle why such early retirementsshould continue to be imposed in India. This is particularly so given the Indiantradition (not observed in Australia) of invariably appointing as Chief Justice thejudge next in seniority to the retiring incumbent. That tradition has itself meantthat many chief justices of India have served extremely short periods of timebecause of the inevitable proximity of their 65th birthday. Suggestions haveoccasionally been made for the adoption of later retirement ages for the Supremeand High Courts, but with no avail. Inferentially, the political consensus has notbeen present to permit the amendment.No diffculties have followed Australian State provisions for the extension forthe normal service of superior court judges. Nor have diffculties arisen from theremoval of life tenure and the substitution of attaining seventy years, in the case offederal judges. Life tenure restricts the regular and desirable turnover of highoffceholders appropriate to an age of rapid technological and social change.Extending judicial service in India to sixty-eight or seventy years would appear tobe a sensible means of avoiding wastage of valuable, accumulated, judicial104 AC (n 1) section 72 (paras 2, 3 and 4 inserted 1977).105 IC (n 1) article 124(2).106 Ibid.38experience with no commensurate return. I express this opinion as one who is infavour of judicial retirement as a means of ensuring change in the enjoyment of allpublic offces, given the desirability of reflecting generational change in thecommunity that is served. 1079. Emergency provisions: There is no express provision in the AustralianConstitution for the suspension of the Parliament or any other constitutionalinstitution and the substitution of emergency rule. Nor has any such emergencybeen authoritatively suggested to interrupt the operation of the Constitution.Various national security regulations and specifc laws were enacted in Australiaduring the two world wars.108 However, these were an application of theConstitution, not an interruption of it.Views have been expressed in Australia that a power to invoke a ‘specialemergency prerogative lies dormant in the fabric of executive powers [in theAustralian Constitution]. It has been suggested that such a prerogative awaitsactivation in the face of extreme necessity.’109 Another assertion has been madeof an extraordinary prerogative which extends to the assumption of legislativepower when the legislative arm of government is paralysed. In recent years, theenactment of laws on anti-terrorism has greatly enlarged the executive power inAustralia concerning terrorism.110 In a majority decision anti-terrorismlegislation enacted by federal and state governments and introduced after 2002was upheld over my dissent.111 Justice Hayne joined in rejecting the assertionthat the defence power, provided under the Australian Constitution, was enlargedto afford the federal government a constitutional foundation for military andnaval defence for domestic purposes. I considered that such a view wasincompatible with the constitutional text and with the strong earlier decision ofthe High Court of Australia in Australian Communist Party v TheCommonwealth.112 In that decision the court insisted that neither the Governmentnor the Federal Parliament could ‘recite’ itself into constitutional power simplyby asserting a danger in a statute.113107 IC (n 1) article 217. Initially this provided for retirement at age sixty. This was extendedfollowing the Constitution, Fifteenth Amendment Act 1963 (In) section 4.108 H P Lee, Emergency Powers (Law Book Co 1984) 322. See also M Head, EmergencyPowers in Theory and Practice – The Long Shadow of Carl Schmitt (Ashgate 2016) 211.109 Ibid 171–72.110 Thomas v Mowbray [2007] 233 CLR 307.111 Ibid (Gleeson CJ, Gummow J, Callinan J, Heydon J and Crennan J).112 Australian Communist Party v The Commonwealth [1951] 85 CLR 30.113 Ibid 187 (Dixon J).THE AUSTRALIAN AND INDIAN CONSTITUTIONS, SIMILARITIES,DIFFERENCES AND THE CHALLENGE OF CONSTITUTIONAL CHOICETHE DENNING LAW JOURNAL39In the Indian Constitution, express provision is made for the proclamation ofan emergency.114 The precondition for such a proclamation is the satisfactionof the President of India ‘that a grave emergency exists whereby the security ofIndia, or of any part of the territory thereof is threatened, either by war orexternal aggression [armed rebellion]’.115 Such a proclamation is only to last fora maximum period of six months.116 Further provisions are made for a case ofsatisfaction by the President of ‘a situation … in which the government of theState cannot be carried on in accordance with the provisions of thisConstitution’.117Despite the suspension and enforcement powers provided for in theseprovisions, the ordinary operation of the Constitution of India has been maintainedwith few interruptions. Most importantly, the military forces have avoidedintrusion into civilian government which has been such a feature of many postcolonial nations.10. Amendment provisions: Finally, it is appropriate to mention the verydifferent amendment provisions provided for in the Australian and IndianConstitutions.The Australian provision was copied from a model derived from Switzerland.118For a formal amendment to the text of the Constitution, a proposed law for thealteration must have passed with an absolute majority through each House of theParliament. It must then be submitted to the electors in each state and territory ofAustralia. A referendum must then be held. The law may not be presented to theGovernor-General for the Royal Assent unless a double majority of the electorsvoting is secured. There must be a majority of the national vote in favour of theproposed law and a majority in favour recorded in a majority of the states ofAustralia (i.e. in four of the six states).119These provisions have proved extremely challenging for those who haveproposed changes to the Australian Constitution. In the 117 year history of theAustralian Commonwealth, there have been 44 proposals for the amendment ofthe Constitution. Only 8 of these have succeeded. In the case of some proposals,114 IC (n 1) article 352.115 Ibid.116 IC (n 1) article 252(5).117 IC (n 1) article 35.118 AC (n 1) section 128.119 A R Blackshield and G Williams, Australian Constitutional Law and Theory (6th ednFederation Press, 2014) 1338. Of the eight proposals that secured the double majorityrequirement in AC (n 1) section 128, seven of them won majorities in every state.40where the suggested amendment has been submitted successfully two or threetimes, the experience has been that the proposal has been lost again, usually withan increased majority of opponents. Similarly, analysis has shown that if thedouble majority requirement were removed and it were suffcient to secure anational majority for alteration and a majority in three of the six states, the numberof referendums that would have been adopted would not have been increased.Constitutionally speaking, Australia is therefore a nation where it is extremelydiffcult to secure a formal amendment to the Constitution. Only possibly theUnited States of America has a constitutional amendment requirement in which itis more diffcult to succeed.Given the huge population of India, its many unique challenges, the responsibilitiesimposed on its institutions of government, for such a large segment of humanity, andthe perils that accompanied its emergence to nationhood as well as the length anddetail of the constitutional text it is not surprising that the provisions for amendmentof the Constitution should have been markedly simpler and more flexible. A power isgranted to the Parliament of India, to add to, vary or repeal ‘any provision of thisconstitution’120 in accordance with the provisions laid down. The general requirementis that the Bill proposing the amendment must be passed in each House of Parliamentby a majority of not less than two-thirds of the members of that House present andvoting.121 Certain special provisions are made in the case of certain amendments.And it is declared ‘for the removal of doubts’ that ‘there shall be no limitationwhatever on the constituent power of Parliament to amend by way of addition,variation or repeal the provisions of this Constitution under this article’.122Notwithstanding the last mentioned emphatic provision, and the purportedprohibition on any court calling into question an amendment passed in accordancewith the article,123 the Supreme Court has repeatedly held the privative clauseexcluding judicial review to be incompatible with the Indian constitutional schemeas to the distribution of powers.124 The court has determined, on the contrary, thatthe ‘amendment’ power is subject to the ‘Basic Structure’ of the Constitutionbecause an amendment must leave suffcient of that which is ‘amended’ in place inorder to be ‘amendment’. It must not be characterised as an overthrow of theConstitution as a whole.125120 IC (n 1) article 368(1).121 IC (n 1) article 368(2).122 IC (n 1) article 368(5).123 IC (n 1) article 368(4).124 Indira Gandhi v Raj Narain AIR [1975] SC 2299.125 Kesavananda Bharati v State of Kerala AIR [1973] SC 1461 [292], [437], [555]–[575],[599], [664]–[665], [691]. See also [251]–[252] (Khanna J).THE AUSTRALIAN AND INDIAN CONSTITUTIONS, SIMILARITIES,DIFFERENCES AND THE CHALLENGE OF CONSTITUTIONAL CHOICETHE DENNING LAW JOURNAL41In Australia, the importance attached throughout the life of the Constitutionto the judicial power in Ch III of the Constitution might conceivably invitesimilar reasoning, in the event of a relevant challenge.126 For example an attemptto change the Australian Constitution from a constitutional monarchy to arepublic might possibly fail, unless the change was approved by the electors inevery jurisdiction of the Commonwealth. This is because each constituent part ofthe Australian Commonwealth is itself a constitutional monarchy. Accordingly,an amended Commonwealth that was partly republican and partly monarchicalmight be held antithetical to the scheme of the ‘alteration’ of something so basic.This question has not yet been considered by the High Court of Australia. Butthe ‘basic structure doctrine’ in the context of the Indian Constitution, affordsfood for thought.It is not surprising that the Indian and Australian constitutions were sobasically similar and that the inevitable differences in their provisions can beconfned to specifcs. After all, until 1935, India was moving towards full dominionstatus in the British Empire as Australia had earlier done. The four pillars stillstanding in the forecourt of Secretariat Building in New Delhi conformed toLutyens grand scheme and his instructions. Those pillars honour Canada,Australia, New Zealand and South Africa. India was planned to be next. Inevitablythe Constituent Assembly, drafting the India Constitution, drew on the earlierdrafts. So there remain many strong constitutional similarities. Their existenceshould encourage greater knowledge and awareness in both India and Australia ofour shared constitutional heritage, so that we continue to learn from each other.CLOSING REFLECTION: OUR BETTER ANGELS1. Race: I have reviewed some of the main points of similarity and differencebetween the Indian and Australian Constitutional documents. However, beforeparting from this subject, I will visit two particular topics to show the ways inwhich, sometimes, the interpretation of constitutional principles can take a wrongturning or a right turning. Of course, whether it is ‘wrong’ will usually depend ondiffering opinions. Objective error may not become clear for decades or evenlonger, if ever.Constitutional texts and doctrine, being expressed in words, will often beambiguous. My teacher of jurisprudence, Professor Julius Stone, insisted thatjudges have ‘leeways for choice’127 in declaring the correct law. Especially so in126 Boilermakers’ Case [1956] 94 CLR 254, 267, 270–74.127 J Stone, Social Dimensions of Law Justice (Maitland 1966): a view propounded byKarl Llewellyn.42constitutional law where the language is often opaque and the values at stake socontestable. Stone urged that, in the choices they made, judges should betransparent and honest in the reasoning they offer in justifcation. Sometimes inmaking the choices the judges’ lesser angels will prevail. At other times their‘better angels’128 will gain the upper hand.Every constitutional court or decision-maker is challenged from time to timeby cases presenting particular issues. It is the nature of constitutional law that itwill often raise contests about fundamental questions going to the very heart ofthe governance of the people. Where those questions concern particularminorities in the nation’s population they demand a special wisdom on the partof the decision-makers. This is true in India as it is in Australia. In these closingremarks, I refer to two special areas in which Australian constitutional decisionmaking has presented diffcult questions for decision by the apex court. Similarissues can arise in India. Accordingly, where relevant, I will refer to Indianinstances.I begin with the issue of race. The history of the 20th century demonstrated,in many places, the deep wells of prejudice and hostility that can arise concerningracial minorities, including in constitutional adjudication. It happened manytimes in the United States in relation to the African-American minority.129Likewise it has arisen in relation to Hispanic-American and Japanese-Americannationals.130 Later decisions signifcantly redressed the prejudice anddiscrimination evident in the earlier decisions. The ‘better angels’ of race cameto the fore.131In India, having in colonial times been subjected to unequal treatment on thegrounds of religion, race, caste, sex and place of birth, it was unsurprising thatthe rights to equality, covering all of these grounds were expressly included in thefundamental rights guaranteed by the Constitution.132 Discrimination on the basisof race, caste, sex and place of birth remained a serious issue in independent India.However, from the beginning of the Indian Constitution, strong protections wereprovided.128 Shakespeare, Sonnet No 144 (1599). Cf. A Lincoln, First Inaugural Address, 3 March1861.129 Scott v Sandford (Dred Scott Case) [1857] 60 US 393; Loving v Virginia [1967] 388US 1.130 Hirabayashi v United States [1943] 320 US 81; Korematsu v United States [1944] 323US 214.131 See for example Brown v Board of Education [1954] 347 US 483; Griggs v DukePower Co. [1978] 438 US 59.132 IC (n 1) article 15.THE AUSTRALIAN AND INDIAN CONSTITUTIONS, SIMILARITIES,DIFFERENCES AND THE CHALLENGE OF CONSTITUTIONAL CHOICETHE DENNING LAW JOURNAL43This was not so in the case of the Australian Constitution. There was noacknowledgement of the Aboriginal minority (although they were the First Peoplesand numbered between 1 and 2 per cent of the population). Originally they werenot counted in the census of the population.133 They were largely ignored andsubstantially deprived of civil rights essential for economic well-being, specifcallyto their land rights.A great Indian jurist indirectly played a benefcial part in suggesting a novelremedial approach to this problem. In 1988, Justice P N Bhagwati, who hadserved as Chief Justice of India, chaired a meeting in Bangalore, India, in whichI participated. The meeting adopted principles that addressed humanity’s ‘betterangels’ in a clear and practical way; but also a legal way. The BangalorePrinciples on the Domestic Application of Universal Human Rights Norms,adopted at the conclusion of that meeting, suggested that, where there wasambiguity in the state of the law, a court should prefer the meaning or expressionof the law that conformed to international human rights norms to one that didnot.134 No differentiation was drawn between constitutions and other varietiesof law.It was essentially this principle that was invoked by the High Court of Australiain the Mabo decision in 1992.135 In that decision on the common law of Australia,the majority of the High Court of Australia re-expressed the land law of Australiaso as to recognise, for the frst time, the rights of indigenous people to traditionaltitle to their lands. Such recognition would be given where the traditional rightshad not already been alienated to third parties as freehold or other inconsistenttitle.136 This was an important legal step forward for the indigenous people ofAustralia. So was the later apology to them given in the Federal Parliament byPrime Minster Kevin Rudd.137 The constitutional text itself had been amended in1967 to remove language that impeded the power of the Federal Parliament toenact laws favourable to the Aboriginal people.138133 AC (n 1) section 127.134 The Bangalore Principles are annexed to M D Kirby, ‘The Role of the Judge inAdvancing Human Rights by Reference to International Human Rights Norms’ (1988) 62ALJ 514, 531–32.135 Mabo v Queensland [No 2] [1992] 175 CLR 1, 42.136 Wik Peoples v Queensland [1996] 187 CLR 1.137 The national apology to the Indigenous Australians was delivered in the House ofRepresentatives of the Australian Parliament on 13 February 2008 by Prime MinisterKevin Rudd. It was supported by the leader of the opposition, Brendan Nelson, The Age(Melbourne) 13 February 2008 and Hansard (H of R) ibid.138 Amending AC (n 1) pt xxvi, section 51 (xxvi).44In 1998, a question arose as to whether the amended constitutional provisionwould, in its terms as amended, support new federal legislation that was arguablyseriously adverse to the legal rights of Aboriginal objectors.139 Naturally, theattention of the justices of the High Court of Australia deciding the case, focusedon the language of the legislative power given to the federal parliament. Followingthe amendment by referendum in 1967, the relevant power was to make laws withrespect to:‘(xxvi.) The people of any race, for whom it is deemed necessary to makespecial laws: …’140The argument for the Federal Government, supporting the challengedenactment, was that there was no ambiguity. A law limiting, restricting ordiminishing the rights of Aboriginal citizens was still a law ‘with respect to thepeople of any race for whom it had been deemed necessary by the federalparliament to make special laws’.141 They must take the good with the bad.Otherwise every favourable enactment would be effectively constitutionalised. Itcould not be amended because any change arguably unfavourable would falloutside the power of amendment. I acknowledged this diffculty in my reasons.However, both for textual and contextual reasons, I concluded that it would be leftto the courts to decide whether any particular enactment fell within power. Thetextual support lay in the use of the words ‘for whom’. This did not mean ‘withrespect to’ whom because when the Australian constitution intended that ambit, itsaid so specifcally, as it did not the opening words of section 51 granting legislativepower. The contextual elements were even stronger. The amendment to theConstitution (one of the few which had secured the approval of the electors) wasachieved against the background of the political and popular endorsement of acommitment to improving the legal, social and economic status of Aboriginalpeople. It was not intended to support laws unfavourable to their interests. At leastit should not be so interpreted. In support of that approach, I invoked the‘interpretative principle’ expressed in Mabo,142 reflecting the Bangalore Principlesof 1988. As stated in Mabo,143 one rule upon which the international law on humanrights had been frm and unanimous was that laws should not be interpreted whereanother interpretation was available, that prejudiced individuals on the basis of139 Kartinyari v The Commonwealth [1998] 195 CLR 337.140 AC (n 1) section 51 (xxvi).141 Ibid.142 Mabo v Queensland [No.2] [1992] HCA 23, 175 CLR 1.143 Ibid.THE AUSTRALIAN AND INDIAN CONSTITUTIONS, SIMILARITIES,DIFFERENCES AND THE CHALLENGE OF CONSTITUTIONAL CHOICETHE DENNING LAW JOURNAL45their race. In utilising the new power afforded by the large ambit of section 51(xxvi.)of the Australian Constitution, the terms of the grant of power should not beconstrued to sustain an adverse enactment144 my view was a minority one. Themajority upheld the power to enact legislation that was undoubtedly adverse andarguably discriminatory.This case illustrates the importance in constitutional adjudication of thechoices that fall to judges who enjoy the power and responsibility of decisionmaking. Especially at the level of an apex court, decision-making in such cases israrely cut and dried. Inevitably constitutional values, sometimes illuminated byuniversal human rights, will have a part to play.2. Sexual orientation: An issue that was not generally discussed in polite legalcircles at the time of the drafting of the Australian or Indian constitutions haslately arisen before many constitutional courts of the world including in India andin Australia. I refer to the issue of discrimination, violence and criminalisation ofa hitherto frightened and silent minority defned by reference to the sexualorientation and gender identity (LGBTIQ).145The reasons for the silence about this minority can be traced to a small numberof now contested passages in scripture, specifcally the Jewish and ChristianBibles (and the Holy Koran). On the basis of these passages British administrators,ignoring any pre-existing views as to the ambit of criminal law, imposed seriouscriminal penalties on persons who were convicted of same-sex activity. Suchactivity attracted, upon conviction, grave punishment (originally including thedeath penalty), allegedly because of the wrath of God towards those guilty of suchconduct. The fact that ‘the offence’ occurred in private, between persons of fullage and competence, and although they were consenting, was deemed irrelevantand provided no legal defence. Such provisions were universal throughout theBritish Empire. In the Indian Penal Code (IPC)146 the provision appeared in s.377in an otherwise astonishing legal achievement, it rendered indelible thestigmatisation of a signifcant population of the Indian people. It was a relic ofcolonial thinking. Yet, although it was abolished in the land of its origin in 1967147144 Kartinyeri v The Commonwealth [1998] HCA 22, 195 CLR 337.145 LGBTIQ stands for lesbian, gay, bisexual, transgender, intersex or otherwise queerpersons.146 Drafted by Thomas Babington Macauley in 1937; enacted for the Governor-General’sCouncil in 1860; entered into force in 1862.147 Sexual Offences Act 1967 (UK).46and in all Australian states by 1998,148 no effective steps have been taken by theIndian Parliament to repeal s.377. This is so, despite the increasing and worldwideknowledge of the scientifc characteristics of sexual variation and the strongstatements of the Human Rights Committee of the United Nations determiningthat such laws were inconsistent with universal human rights.149In the face of legislative inactivity in India, proceedings were brought in thecourt to challenge the constitutional validity of the impugned provision. Indiancitizens and community organisations commenced proceeding in the courtcommitting that s.377 of the IPC was invalid because it violated articles 14, 15 and21 of the constitution. The arguments suggested that the section invaded the mostprivate consensual activities of adult citizens; was contrary to the protections oflife, dignity, autonomy and privacy provided by article 21 of the Constitution; andviolated the constitutional guarantee of equality under article 14 of the Constitution;infringing also article 15 because sexual orientation was a ground analogous tosex, a protected category under the Constitution of India.In the Delhi High Court a declaration was made by Chief Justice A P Shah andJustice Muralidhar (constituting the court), that s.377 IPC, so far as it criminalisedconsensual sexual acts of adults in private, breached articles 14, 15 and 21 of theIndian Constitution. The court held that the terms of section 377 had to be readdown so as to be confned in their operation to the constitutionally permitted ambitleft over by the operation of the Constitution. In a most impressive judicial opinion,the Delhi High Court held:If there is one constitutional tenet that can be said to be an underlying themeof the Indian Constitution, it is that of ‘inclusiveness’. This court believes thatthe Indian Constitution reflects this value deeply engrained in the Indiansociety, nurtured over several generations. The inclusiveness that Indiansociety traditionally displayed, literally in every aspect of life, is manifest inrecognising the role in society for everyone. Those perceived by the majorityas ‘deviants’ or ‘different’ are not on that score excluded or ostracised. Where148 When the Criminal Code Act 1924 (Tas), sections 122 and 127 were repealed in 1998.This followed the enactment by the Federal Parliament of Human Rights (Sexual Conduct)Act 1994 (Cth) which in turn followed Toonen v Australia [1994] 1 Int Hum Art Rt Reports97 (No 3), decision of the UN Human Rights Committee. See Croome v Tasmania [1998]191 CLR 119.149 Ibid. There have been many other decisions of national and international courts on thistopic, most of them favourable to the provision of protection and equality. See M D Kirby,Sexual Orientation & Gender Identity – A New Province of Law for India (Universal LawPublishing 2015).THE AUSTRALIAN AND INDIAN CONSTITUTIONS, SIMILARITIES,DIFFERENCES AND THE CHALLENGE OF CONSTITUTIONAL CHOICETHE DENNING LAW JOURNAL47society can display inclusiveness and understanding, such persons can beassured of a life of dignity and a life of non-discrimination.… It cannotbe forgotten that discrimination is the antithesis of equality and that it is therecognition of equality that will foster the dignity of every individual.150The decision and orders in the Naz Foundation case151 were appealed to theSupreme Court of India. On 11 December 2013, that court, constituted by twoJustice Bench in Suresh Kumar Koushal v Naz Foundation,152 upheld the appealdespite the orders of the Delhi High Court and confrmed the validity of section377 IPC. It thereby effectively ‘re-criminalised’ millions of LGBTIQ Indiancitizens and others. The outcome caused dismay in national and internationalcircles. But the most disappointing features of the decision lay in the reasoning ofthe Supreme Court. It had been delayed for a long interval and was delivered at thelast moment, before the retirement of one of the justices. It was dismissive of theappeal to constitutional rights, which it was the duty of the court to determine. Itreferred to those rights as ‘so-called’ claims by the gay minority. It opined thatdetermination of the matter was for parliament not the courts. This was despite thefact that no action had been taken to afford (or even consider) legislative change. Acurative petition to allow consideration of the decision in Koushal was brought,but has not yet been determined, although that petition is still alive. Meantime, inanother matter coming before the court in the Justice Puttaswamy case153 DrJustice D Y Chandrachud,154 (after citing passages about the ‘so-called rights ofLGBT persons’) stated:155Neither of the [stated] reasons can be regarded as a valid constitutional basisfor disregarding a claim based on privacy under article 21 of the Constitution.That ‘a miniscule fraction of the country’s population constitutes lesbians,gays, bisexuals or transgenders’ as observed in the judgment of this Court isnot a sustainable basis to deny the right to privacy. The purpose of elevatingcertain rights to the stature of guaranteed fundamental rights is to insulate the150 Naz Foundation v Union of India [2009] 4LRC 835 [130]–[131]; [2009] 1 DLT 277(Del HC).151 Ibid.152 Koushal v Naz Foundation [2014] 2 LRC 555; [2013] 15 SCALE 55; [2014] 1 SCC 1.153 Justice Puttaswamy, (unreported) 24 August 2017 (Petition) 494/2012. The manuscriptof the Supreme Court judgment comprised 547 pages.154 With whom Kehar CJ, Agrawal J and Nazeer J conferred. Nariman J, Kaul J, Robde J,Sapre J, Chelameshwar J wrote concurring reasons.155 Puttaswamy v Union of India [2017] 10 SCC 1 (Justice KS).48exercise from the disdain of majorities, whether legislative or popular. Theguarantee of constitutional rights does not depend on their exercise beingfavourably regarded by majoritarian opinion. The test of popular acceptancedoes not furnish a valid basis to disregard rights which are conferred with thesanctity of constitutional protection. Discrete and insular minorities face gravedangers of discrimination for the simple reasons that their views, beliefs orway of life does not accord with the ‘mainstream’ yet in a democraticConstitution founded on the rule of law, their rights are as sacred as thoseconferred on other citizens to protect their freedoms and liberties. Sexualorientation is an essential attribute of privacy. Discrimination against anindividual on the basis of sexual orientation is deeply offensive to the dignityand self-worth of the individual. Equality demands that sexual orientation ofeach individual in society must be protected on an even platform. The right toprivacy and the protection of sexual orientation lie at the core of thefundamental rights guaranteed by articles 14, 15 and 21 of the Constitution.The view in Koushal that the High Court had erroneously relied uponinternational precedents ‘in its anxiety to protect so-called rights of LGBTpersons’ is, similarly, in our view, unsustainable. The rights of the lesbian, gay,bisexual and transgender population cannot be construed to be ‘so-called rights’.The expression ‘so-called’ seems to suggest the exercise of a liberty in garb of aright which is illusory. This is an inappropriate construction of the privacy basedclaims of the LGBT population. The rights are not ‘so-called’ but are real rightsfounded on sound constitutional doctrine. They inhere in the right to life. Theydwell in privacy and dignity. They constitute the essence of liberty and freedom.Sexual orientation is an essential component of identity. Equal protection demandsprotection of the identity of every individual without discrimination.156There were other criticisms of Koushal157. Because an appeal in that matter (orthe curative petition) was not before the Supreme Court, it withheld relief and leftthis to a later time. However, given that in the Privacy Case158 the Supreme Courtof India was comprised of a Constitutional Bench of nine justices, it would appearto be a decision favourable of the eventual restoration of the orders in the NazFoundation159 case.Most respectfully, I express the hope that this would be so. I would do so as ajurist, simply looking at the reasoning in Koushal and the Privacy Case. However,156 Privacy Case (n 139) [126], [127] (Justice Puttaswamy).157 Privacy Case (n 139) [152].158 Privacy Case (n 139) [155].159 Privacy Case (n 139) [150].THE AUSTRALIAN AND INDIAN CONSTITUTIONS, SIMILARITIES,DIFFERENCES AND THE CHALLENGE OF CONSTITUTIONAL CHOICETHE DENNING LAW JOURNAL49I can add to those ingredients, my own experience as a member of the LGBTpopulation in my own country. Being on the receiving end of discriminationwhether on the ground of race or sexual orientation is affronting, demeaning andsometimes dangerous. There have always been members of the sexual minoritiesin the legal and judicial profession. Until recently, for safety, they were frightenedinto silence. Now they are emerging into the full light. Part of that light is shone byjudges, like those of the Supreme Court of India participated in the Privacy Case.In constitutional adjudication, judges often have choices. Those choices areilluminated by their constitutional values. Those values can be informed byevidence, including scientifc; international human rights law; and the reasoningof judicial colleagues in analogous circumstances in other jurisdictions.This is why comparative constitutional law is such a valuable tool of themodern judge and advocate. Fortunately modern technology, the internet andaccess to information undreamed of by our predecessors is now available to us.Australian lawyers can defnitely learn from Indian judges and lawyers.Constitutions are special laws. Fidelity to their origins and purposes will oftenrequire distinctive approaches. The world today, including the world ofconstitutional law operates in a universe of internationalism. Where it is permittedby the text and encouraged by the purpose and context of the issue in question,even constitutional law can learn from international developments. Nowhere isthis more so than in universal human rights, that belong to all people everywhere,are in question.

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