Article by Jayanta Boruah
North-Eastern Hill University, Shillong
This review is of an Article based on an address made by Former Justice of the High Court of Australia and Honorary Adjunct Professor of OP Jindal/Global University Delhi, Michael Kirby on January 10, 2018, at India Law Institute, New Delhi. The article titled “Indian and Australian Constitutional Law: A Recent Study in Contrasts” as it suggests makes a comparative study between the Constitution of India and Australia were at first, the Author introduced the similarities in both the Constitutions, then at the second he referred and explained their differences and finally, at last, he introduced few major challenges faced by both these two Constitutions. This review will thus focus on understanding the key areas based on which the Author made such a comparison.
SIMILARITIES IN BOTH INDIAN AND AUSTRALIAN CONSTITUTIONS
While defining the similarities of these two Constitutions the Author was not only confined in explaining the Indian and Australian Constitutions rather touched upon several key features of the Constitution of various other countries like America, Britain, etc. which reflects the versatility of the knowledge possessed by the Author over the subject concerned. In both countries, the Author revealed that the Constitutions provide for Parliamentary Democracy and the people directly vote for their representatives. As regards federal structure is concerned, Australia has a more clear picture where the Federal Parliament is allowed to make laws in matters where State Parliaments have not made, while in India there is a division of legislative powers marked by Union List for the Center, State list for the State and the Concurrent List for both the Center and the State. The Author further revealed that although federalism is an important feature of the Indian Constitution, it has not been given such status in the Preamble itself, and also India tilts towards having a strong Unitary government as compared to the Constitutions of America, Canada, Australia, and Nigeria. Both the countries follow the principle of Rule of Law, wherein India there is an integrated Judiciary with the Supreme Court at the top whose decisions are binding on all the Courts and the High Courts at the States whose decisions are binding on its subordinate Courts, while in Australia there are no such separate provisions in the Constitution other than Ch III. However, Australia followed the trend of the US Constitution where the Courts are empowered to determine the validity of the laws passed by all the legislatures. Thus, both India and Australia grant power to the Courts for Judicial Review. The Supreme Courts in both the countries have similar appellate jurisdictions and follow the pattern existing in the United Kingdom and Canada to some extent. Both India and Australia have a Parliamentary form of Government where the head of the State is the President in India while the Governor-General representing the Queen is the head of the State in Australia, based on the Westminster system of Government under the British Constitution, which the Author opined as a more preferable and flexible form of government compared to that of Presidential form of government existing in the US. The Author further appreciated the division of powers between the head of the government and the head of the State in both countries as a necessary element for good governance in the modern age. The legal traditions are also similar in both the countries where the only difference is that the consultation process required for appointing Judges in India is quite more serious than in Australia. One another important feature of both the Constitutions is the provision relating to the free-market throughout their respective national territories where the Australian Constitution provides for Common Market System and the Indian Constitution provides for free interstate trade which the Author appreciated for being able to bring National integrity by avoiding selfish localism. In both countries, the Constitutions felt the need of protecting certain disadvantaged groups whose vulnerabilities were held to be the product of history. In Australia, the Aboriginals faced discrimination based on race, skin color, and ethnicity which continued from the British Colonial Rule up to 1967 when the Parliament was allowed to make special laws for the development of such communities, while in India, the discrimination was based on mainly religion which led to the brutal partition of British-India, followed by caste and tribe based discriminations for which the Constitution provides for special protections.
DIFFERENCES IN THE CONSTITUTIONS OF BOTH THE COUNTRIES
As per differences are concerned, in Australia the legislative powers were transferred to the hands of Australian people through an imperial statute while in India there was a plan of transfer of power but the drafting of the Constitution was done entirely by the leaders representing Indian people. The Author thus opined that there can be doubts regarding the Grundnorm of the Australian Constitution but such doubts do not exist as regards to Indian Constitution. One another difference is that India is a Republic while Australia follows the pattern of Constitutional Monarchy. The Oath of allegiance in Australia is towards the Queen and Her Successors while in India such Oath is towards the Constitution. India joined the Commonwealth of Nations by being a Republic while Australia joined it by being a Constitutional Monarch. Australian independence was a gradual and evolutionary one while Indian Independence was more a bloody and difficult struggle. Australian Constitution recognized appeals to Privy Council till 1986 when an Australian Act curtailed such provisions while in India since the inception of the Constitution, an Independent Judiciary was established. To determine citizenship rights Indian Constitution abolished the concept of ‘British Subjects’ and adopted its notions for defining citizenships by birth, descent, naturalization, etc. while in Australia such provisions were not mentioned in its Constitution and for a long time its citizens were referred to as British Subjects’ but later it followed India and adopted separate nationhood. The Australian Constitution does not provide expressly any such Fundamental Rights as provided in the Indian Constitution based on the belief that the legislatures being represented by the people are well capable of protecting such Rights of the People in Australia. The Author however criticizing this notion uphold that such belief is not that beneficial for the minorities and the unpopular in a democratic legislature, further such belief exist in Australia because the Australian Constitution was enacted in the 19th century while the Indian Constitution was enacted in the 20th century guided by several other Constitutions like the Irish Constitution from where India borrowed the Directive Principles of State Policy. The Author even argued that many Constitutions that were enacted much before which did not adopt any such rights started adopting later on like the Canadian Constitution adopted the Charter of Rights and Freedom, the New Zealand Constitution adopted the International Human Rights laws and even the UK Constitution also followed similar patterns which was the host of all hostilities. In Australia also similar demands were made by the States but they could not achieve support in the Federal Parliament on the ground that such a provision will make the Judges activists diminishing the power of the legislatures which will be against democracy. As regards religious freedom and secularism are concerned, in Australia, there has been given a narrow interpretation to s. 116 by restricting the State from interfering in the religious matters and this Principle follows the ideals of secularism popularized in the United States while in India, there is no official religion and secularism is the basic structure of the Indian Constitution, everyone has been granted with significant religious freedom subject to reasonable restrictions. For the retirement of Judges, initially, Australia had no fixed age limit but later it adopted which was higher than the age limit fixed for such retirement in India. As a result, the Author argued that Indian Chief Justices could not serve for a long time due to the convention that only the senior-most Judge will become the Chief Justice who will again have to retire at the age of 65 years. There is one another difference that was highlighted by the Author was the provisions relating to the declaration of emergencies that are expressly provided in the Constitution of India but lacks such recognition in the Australian Constitution. However, due to the ongoing legislative process for countering terrorist activities in Australia, the debate for the inclusion of such provisions in the Australian Constitution is also increasing. There are even severe differences in the process of Constitutional Amendments in both the countries wherein Australis, any such amendment to the text of the Constitution will require a law to be passed by an absolute majority in both the Houses of the Parliament and subsequently it must be supported with a double majority by the votes of the electors including the majority of the national votes and majority of the votes recorded from the Australian States. Only after that such law can be presented before the Governor-General for his final ascent. While in India, the Parliament has the power to amend every part of the Constitution according to the provisions of Article 368 of the Constitution, provided that such amendments do not violate the Basic Structure of the Constitution as propounded in the Kesavananda Bharati case. This shows that formal amendments to the Constitution of Australia are a very difficult task for which the Author mentioned that in the last 117 years only 44 amendments were proposed out of which only 8 have succeeded in amending the Constitution while in India more than 100 amendments have been made in last 70 years.
REFLECTIONS SUMMARIZING THE BEST OF BOTH THE CONSTITUTIONS
After analyzing the similarities and the differences of both the Constitutions, the Author went for listing the best approaches from them which he defined as our Better Angels. The author holds that there can be right or wrong interpretations of the Constitution but what makes a difference is the honesty and transparency of the Judges in making a good choice. He further stated that in both cases the decision-making process might be faced with challenges when issues concerning minorities are raised. Such issues arose in Australia regarding racial discrimination where the Aboriginals were denied their basic human rights. In India similarly there had been discriminations based on religion, caste, place of birth, etc. for which adequate protections were given under the Constitution but such provisions were missing in the Australian Constitution. He then referred to a solution given by Justice P.N. Bhagawati, in Bangalore which suggested adhering to the International Human Rights standards in the absence of better legislation at the domestic level. However, amendments in the Australian Constitution are a highly difficult task for which the Author concluded that it is now the responsibility of the Judges to step into the matter. The second issue that he illustrated was related to the sexual orientation and gender identity of the LGBTQ community. Same-sex activities even though committed in private and with consent were held as criminal activities punishable under the law in the British Empire. But subsequently, it was decriminalized in the country of origin in 1967 itself and also in Australia in 1989. But S. 377 of the Indian Penal Code that criminalized such activities continued for a long time. It was after a very long debate that S. 377 was invalidated.
From the review of the Article made above, it becomes clear that both Australian and Indian Constitutions have their merits and demerits. Therefore, it is a healthy approach to have a comparative study of these two Constitutions for adopting the best out of them and correcting the worst. The Author further illustrated with two examples that how the Constitutional Laws in both countries deal with minority rights since in democratic countries minorities are always expected to be at the receiving end. But we must acknowledge the fact that in India minorities in most cases have been given adequate protection under the law and in Australia, such protections might be missing. However, Australian people are themselves adapting to the changing times of the contemporary world while it might take another few decades for the Indian citizens to rise above religious fundamentalism and to dedicate themselves to constructive activities. Further, there are other issues like- the Rights of the Persons with Disabilities for contesting elections, Rehabilitation of the local people after environmental and infrastructural developmental disasters, the Rising burden of unemployed educates, etc. which are now becoming growing concerns but neither any of these two Constitutions nor this Article has spoken about.
 Michael Kirby, Indian and Australian Constitutional Law: A Recent Study in Contrasts, 60(1), JOURNAL OF INDIA LAW INSTITUTE, 1 (2018).