‘THE CONSTITUTIONAL GUARANTEES OF RIGHTS AND
POLITICAL FREEDOMS’
Working paper submitted for the programme to mark the 40th
Anniversary of the founding of the Constitutional Judicature of Egypt
(March 7-9, 2009)
By: Justice K.G. Balakrishnan, Chief Justice of India
The growth of ‘Constitutionalism’
If one traces the evolution of political institutions during the 20th century,
the most significant development is the proliferation of written constitutions
all over the world. About a century ago, the United States was among the
few prominent nations which had gained considerable experience with
constitutional governance. At the time, the British Empire was at its peak
and its colonies followed the tradition of adhering to unwritten constitutional
principles and the doctrine of ‘parliamentary sovereignty’. Subsequent to the
First World War, several countries adopted written constitutions, but the
failure of the Weimar Constitution in Germany prompted considerable
skepticism about the future of Constitutionalism. The turning point came
after the end of World War II. The extensive suffering and loss of life during
the years of conflict prompted multilateral efforts to ensure the protection
and promotion of human rights. This was the genesis of the United Nations
system, and the concerns with the protection of individual rights came to be
articulated in the form of the Universal Declaration of Human Rights
(UDHR).
This progression in international cooperation coincided with the era of
1
decolonization, since the European powers were far too weakened to
continue their control over distant colonies. Furthermore, the liberation of
many colonies was catalysed by nationalist movements all over Asia and
Africa which had espoused the cause of individual civil-political rights as
well as socio-economic entitlements. Most of these newly independent
nations chose to adopt written constitutions as the basis for the organisation
of their governments. In the postcolonial setting, more and more countries
opted for constitutional texts which sought to internalize the practice of
democracy while also guaranteeing a set of substantive rights to their
citizens. In the framing of these texts, there has been a widespread tendency
to borrow from the constitutional provisions of foreign jurisdictions as well
as the provisions of international instruments such as the International
Covenant on Civil and Political Rights (ICCPR) and the International
Covenant on Economic, Social and Cultural Rights (ICESCR).1
In many countries the adoption of normative rights in the constitutional
texts has been an important tool to act against existing patterns of political,
social and economic inequality. Noted scholar Granville Austin2 has
attributed the objectives of creating ‘unity’, ‘democracy’ and a ‘social
revolution’ to the framers of the Indian Constitution. In relatively recent
times one can point to the example of the new South African Constitution,
which was adopted in 1994 and marks a clear departure from the past history
of racial apartheid. The framers of the South African Constitution not only
relied on international instruments but also took part in extensive
See Bruce Ackerman, ‘The Rise of World Constitutionalism’, 83 Virginia Law Review
771-797 (1997)
2
See: Granville Austin, The Indian Constitution: Cornerstone of a nation (Oxford
University Press, 1966)
1
2
consultations with jurists and administrators from other jurisdictions in order
to learn from their experiences in administering written constitutions.
Another interesting development in this field has been the emergence of
supranational adjudicatory bodies such as the European Court of Human
Rights (ECHR). Created to enforce the rights guaranteed under the European
Convention on Human Rights, the Strasbourg based Court is at the core of
what is perhaps the strongest regional system for protection of human rights
which allows individual citizens of the European Union (EU) nations to
institute actions against their own governments. This creates an active
interface between domestic constitutional law and public international law.
It is of course a clear departure from the modalities of the International
Court of Justice (ICJ) which can redress individual grievances only if the
same are espoused by the concerned state parties.3
As a representative of the higher judiciary in India, I am in a position to
offer some thoughts on the evolution of ‘constitutionalism’ in my country. I
would like to proceed with this paper in two broad divisions.
•
The first segment is an overview of the fundamental rights guaranteed
to citizens under the Constitution of India. Besides briefly
enumerating the content of these rights enshrined in Part III of the
See: Dieter Grimm, The Constitution in the Process of Denationalization’,
Constellations, Vol. 12, No. 4 (2005) at p. 447-463; A related development has been the
emergence of UN mandated tribunals following the conflicts in Yugoslavia, Rwanda,
Sierra Leone and Cambodia – followed by the establishment of the International Criminal
Court (ICC) under the Rome Statute, with all these bodies being empowered to prosecute
individuals for the commission of grave crimes such as genocide and war crimes.
However, the evolution of International Criminal Law does not have a direct interface
with domestic law unless a particular country specifically incorporates its obligations and
nature of involvement with an adjudicatory institution.
3
3
Constitution, it is also important to understand the motives of the
framers in incorporating the same. It also becomes necessary to refer
to Part IV of the Constitution which deals with the non-justiciable
‘directive principles of state policy’. This is significant since the
higher judiciary in India has repeatedly faced fact-situations that
involve a divergence between the justiciable fundamental rights and
the ‘non-justiciable’ directive principles. In many cases, our higher
judiciary has adopted creative strategies to evolve a ‘harmonious
construction’ between the same. Such an approach has led to the
blurring of the traditional distinctions between core civil-political
rights and ‘non-justiciable’ socio-economic aspirations.
•
The second part of this paper delves into some theoretical debates in
the domain of constitutional theory. With due regard to academic
writings in the area, one can refer to disagreements on three broad
issues, with the first being the proper place of ‘judicial review’ in a
constitutional democracy. The next issue is the transformation in the
substantive character of constitutional rights, since socio-economic
entitlements are progressively being made justiciable thereby placing
positive obligations on state agencies that are of a binding nature. The
third theme to be touched on is the growing importance of the field of
‘comparative constitutional law’. When Constitutional Courts in
different jurisdictions increasingly cite each other’s decisions, this
‘transjudicial communication’4 acts as a catalyst for recognizing an
international consensus on the understanding of rights.
The phrase ‘transjudicial communication’ was coined by academic Anne-Marie
Slaughter to describe the increasing tendency of Constitutional Courts in different
countries to refer to each others’ decisions. Refer: Anne-Marie Slaughter, ‘A typology of
transjudicial communication’, 29 University of Richmond Law Review 99 (1994)
4
4
With regard to the protection and promotion of individual rights and
freedoms, the framers of the Indian Constitution did indeed take some
progressive steps for their time. The inclusion of ‘fundamental rights’ of
citizens was the subject of extensive discussions on the floor of the
Constituent Assembly. It must be noted that the demands for a charter of
citizens’ rights had been articulated much earlier during the struggle for
independence from British Rule. Under the rule of the East India Company
and subsequently the British Crown, there had been a progressive
transplantation of modern government institutions such as legislatures and
formal courts. However, these legislatures were elected through a limited
franchise based on education and property related qualifications, and were
not representative of the people. The formal Courts for the most part applied
statutory laws that had been either transplanted from Britain or developed by
government appointed experts in an opaque and non-consultative manner.
Towards the end of the 19th century, the nationalist sentiment among
Indians had germinated amongst the educated middle-classes who sought
more participation in governance. Demands for a charter of rights were
made as early as 1895 when a bill on governmental reforms had been
introduced. Over the next few decades, the protection of civil-political rights
became the foundational concern of the nationalist mobilization as Mahatma
Gandhi gained prominence with the Civil Disobedience Movement in 1922
and the Non-Cooperation movement in 1930. The Congress Party indicated
its clear support for the guarantee of individual rights and went to the extent
of declaring its’ own charter of rights in the form of the Karachi
Declaration in 1929 and reiterating it at its’ Lahore Session in 1931.
5
Attempts to lobby for an inclusion of an express guarantee of rights were
renewed in anticipation of the Government of India Act, 1935.5 However,
the colonial government did not relent in its stand against the express
guarantee of civil-political rights. The English legal system has for long
functioned on the premise that unwritten constitutional conventions allow an
appropriate degree of flexibility in governmental actions in the long run,
while individual liberties can be adequately protected by way of norms
developed through ordinary statutes and judicial precedents.6 The framers of
the Indian Constitution chose to depart from the colonial legacy of
‘legislative supremacy’ and adopted a part which enumerated the
‘fundamental rights’ of citizens in the newly-created republic. The status of
these rights was strengthened through a provision for ‘judicial review’ over
governmental action as well as the right of citizens to approach the courts to
seek remedies against the violation of these rights. Article 13(2) of the
Constitution of India prescribes that the Union or the states shall not make
any law that takes away or abridges any of the fundamental rights, and any
law made in contravention of the aforementioned mandate shall, to the
extent of the contravention, be void. The courts decide whether a legislature
or an executive has acted in excess of its powers or in contradiction to any of
the constitutional restrictions on its power.
For a background on the demands for a bill of rights during the freedom struggle, see
S.P. Sathe, ‘Judicial Activism: The Indian Experience’, 6 Washington University Journal
of Law and Policy 29-107 (2001)
6
This position which preferred ‘legislative supremacy’ has been diluted in recent years,
with the United Kingdom becoming party to the European Convention on Human Rights
(ECHR). The ECHR lays down justiciable rights and most of them have been
incorporated in the Human Rights Act, 1998. The implication of this is that citizens of the
United Kingdom can question the legislative and executive acts of their own government
before a supranational tribunal (European Court of Human Rights located in Strasbourg)
on the ground of violation of the rights enshrined in the said Convention. .
5
6
The Constitutional text also facilitated India’s transition into a
democratic republic. The most important marker of a constitutional
democracy is the conduct of fair elections where all citizens can vote freely
in order to determine the composition of government. During the latter
stages of colonial rule, periodic elections had been held for the composition
of the provincial assemblies and a Central Legislature but the voting rights
were linked to educational qualifications and ownership of property, thereby
limiting the same to a miniscule part of the population. Even in the
Constituent Assembly, there was some support for the idea of ‘limited
franchise’ based on the reasoning that the illiterate masses were not mature
enough for modern democracy. However, the Indian Constitution
incorporated the principle of ‘universal adult franchise’ at a time when even
Western democracies had only recently allowed women to vote. In the years
since, periodic elections followed by peaceful transitions in government
have become the basis for describing India as the world’s largest democracy.
The lower house of parliament i.e. the ‘Lok Sabha’ (House of the People)
truly represents all of India’s diversity while the upper house i.e. the ‘Rajya
Sabha’ (Council of States) provides proportional representation to all the
States.
At this juncture, it may be useful to present a brief overview of the
contents of Part III of the Constitution of India, which enumerates the
fundamental rights of citizens. The language of many of these rights
incorporated that of the Universal Declaration of Human Rights (1948) and
also mirrored some of the provisions of the ICCPR and the ICESCR, which
were the subject-matter of discussion at the United Nations around that
period. Most of these rights are enforceable against the State, while some
7
others are directed both against the State and private actors. The most
important feature however is that the fundamental rights gave the higher
judiciary a clear set of criteria to regulate relations between citizens and the
government (i.e. ‘vertical application of rights’) as well as between citizens
themselves (i.e. ‘horizontal application of rights’). Furthermore, Indian
Courts have interpreted these rights not only in a ‘negative’ dimension, i.e.
in terms of protection against violations of guaranteed rights by the state and
other citizens but also in a ‘positive’ dimension which places obligations on
the state to ensure the availability of socio-economic entitlements to citizens.
Article 14 of the Constitution of India provides a guarantee of ‘equal
protection before the law’, Article 15 prohibits discrimination on the
grounds of religion, race, caste, class and gender – but at the same time
permits the State to make special provision for the advancement of women
as well as ‘socially and educationally’ backward sections of society. The
language of Article 15 has been interpreted in the spirit of ‘substantive
equality’ which allows ‘differential treatment’ in order to address prevalent
social inequalities. Hence Article 15 forms the basis of policies such as
reservations to facilitate the entry of candidates belonging to historically
disadvantaged sections such as Scheduled Castes (SC) and Scheduled Tribes
(ST) in the legislatures, public employment and higher educational
institutions.7 Article 16 creates obligations on the State to ensure fairness in
matters pertaining to public employment. In order to mitigate the prevalent
hierarchical practices in Indian society, Article 17 prohibits the practice of
For a brief overview of the development of the law on reservations, See: Parmanand
Singh, ‘Equality and Compensatory Discrimination: The Indian Experience’ in C. Raj
Kumar & K. Chockalingam (eds.), Human Rights, Justice and Constitutional
Empowerment (New Delhi: Oxford University Press, 2007) at p. 126-152
7
8
caste-based ‘untouchability’ whereas Article 18 abolished titles (with the
exception of military and academic titles). Articles 17 and 18 can be
enforced against private parties.
Article 19 safeguards the liberties of citizens which have both civilpolitical and socio-economic dimensions. Among the enumerated liberties
are the freedom of speech, assembly, association, movement within the
country and the freedom to pursue a livelihood. Freedoms such as those of
‘speech, assembly and association’ had special resonance for the members of
the Constituent Assembly since many of them had first-hand experience
with the colonial government’s restrictions on the functioning of
newspapers, the organisation of political rallies and the mobilization of trade
unions. The protection of these liberties was synonymous with the ethos of
the freedom struggle in the subcontinent. The right to livelihood which
primarily has socio-economic implications has been guaranteed in the form
of the citizens’ freedom to pursue a profession, trade, business or occupation
of their choice. These liberties are however subject to ‘reasonable
restrictions’ by the State on enumerated grounds that mostly pertain to
‘public interest’. It goes without saying that most of the constitutional
litigation requires a judicial determination of the permissible extent of
restrictions on these enumerated freedoms.
Articles 20, 21 and 22 together constitute the ‘due process’ rights, which
guarantee certain protections to individuals against arbitrary actions by the
State. For instance Article 20 incorporates the rule against ‘double-jeopardy’
in criminal litigation, prohibits the ‘retrospective criminalisation’ of acts by
the legislature and also enumerates the ‘protection against self9
incrimination’ guaranteed to a person accused of committing an offence.
Article 21 provides that no person shall be deprived of life or personal
liberty except in accordance with ‘procedure established by law’. The scope
of the protection under Article 21 has been progressively expanded by the
Supreme Court of India and in a later segment of this paper I will refer to
some cases wherein the same has been done. Article 22 protects citizens
against unlawful detention and also provides safeguards in instances of
‘preventive detention’ by the State.
Articles 23 and 24 seek to restrain exploitative social practices and are
directed against both the state as well as private actors, thereby creating
‘horizontally’ applicable rights. Article 23 prohibits the trafficking of human
beings and other forms of forced labour while Article 24 prohibits the
employment of children under the age of fourteen in factories, mines and
other forms of hazardous employment. These rights have been the subject of
some prominent decisions given by our Supreme Court in Public Interest
Litigation (PIL) cases.
Articles 25-30 constitute the ‘religious guarantees’. The ‘freedom of
religion’, ‘freedom of conscience’ and ‘free profession, practice and
propagation’ of religion as well as the freedom of religious denominations to
manage their own affairs has been enshrined in Articles 25 and 26 of the
Constitution. The ‘freedom of religion’ is however subject to governmental
restraints on grounds such as ‘public order, morality and health’ as well as
considerations pertaining to the other rights enumerated in Part III. The
Courts have also justified intervention with religious practices on grounds
such as social reform and have drawn a demarcation between the purely
10
‘religious’ and ‘secular’ activities associated with religious identity. In
several cases, the Courts have accepted governmental intervention with
‘secular’ activities such as the management of property held by religious
endowments and disputes relating to the rights and obligations of religious
functionaries.8
Article 27 prohibits the accumulation and use of public finances in order
to support religious activities. Continuing with the objective of creating a
separation between state and religion, Article 28 prohibits religious
instruction in government-run educational institutions. Articles 29 deals with
the rights of religious and linguistic minorities to preserve their culture and
language, while Article 30 recognises the freedom of religious minorities to
establish and administer educational institutions, free from state interference.
This entails that in addition to the assurance of administrative autonomy, the
minority-run educational institutions are also exempted from constitutionally
mandated policies such as reservations in admissions and the prohibition on
religious instruction, even if they are receiving governmental aid.
The power of the higher judiciary to enforce these fundamental rights is
derived from Article 32 of the Constitution. It gives citizens the right to
approach the Supreme Court in order to seek a remedy against the violation
of fundamental rights. This ‘right to constitutional remedy’ is itself a
fundamental right and can be enforced in the forms of writs evolved in
common law – such as habeas corpus (to direct the release of a person
See: Rajeev Dhavan and Fali S. Nariman, ‘The Supreme Court and Group Life:
Religious Freedom, Minority Groups and Disadvantaged Communities’ in B.N. Kirpal et.
al. (eds.), Supreme but not Infallible: Essays in Honour of the Supreme Court of India
(New Delhi: Oxford University Press, 2000) at p. 256-287
8
11
detained unlawfully), mandamus (to direct a public authority to do its duty),
quo warranto (to direct a person to vacate an office assumed wrongfully),
prohibition (to prohibit a lower court from proceeding on a case) and
certiorari (power of the higher court to remove a proceeding from a lower
court and bring it before itself). Besides the Supreme Court, the High Courts
located in the various States are also designated as constitutional courts and
Article 226 permits citizens to file similar writs before the High Courts.
Evidently, the Higher Judiciary in India (consisting of the Supreme Court
and the various High Courts) performs the key task of protecting and
interpreting the fundamental rights under their writ jurisdiction. With the
advent of Public Interest Litigation (PIL) in recent decades, Article 32 has
been creatively read to shape innovative remedies such as a ‘continuing
mandamus’ for ensuring that executive agencies comply with judicial
directions. In this category of litigation, judges have also imported private
law remedies such as ‘injunctions’ and ‘stay orders’ into what are essentially
public law-related matters.9
While the fundamental rights of citizens enumerated in Part III of the
Constitution are justiciable before the higher judiciary, Part IV deals with
the ‘Directive Principles of State Policy’ that largely enumerate objectives
pertaining to socio-economic entitlements.10 The Directive Principles aim at
creating an egalitarian society whose citizens are free from the abject
See: Ashok H. Desai and S. Muralidhar, Public Interest Litigation: Potential and
Problems’ in B.N. Kirpal et. al. (eds.), Supreme but not Infallible – Essays in Honour of
the Supreme Court of India (OUP, 2000) at p. 159-192; Also see K.G. Balakrishnan,
‘Growth of Public Interest Litigation in India’, Fifteenth Annual Lecture, Singapore
Academy of Law (October 8, 2008), Text available from <www.sal.org>
10
The framers included ‘Directive Principles of State Policy’ following the example of
the Irish Constitution.
9
12
physical conditions that had hitherto prevented them from fulfilling their
best selves. They are the creative part of the Constitution, and fundamental
to the governance of the country. However, the key feature is that the
Directive Principles are ‘non-justiciable’ but are yet supposed to be the basis
of executive and legislative actions. It is interesting to note that at the time
of drafting of the Constitution, some of the provisions which are presently
part of the Directive Principles were part of the declaration of fundamental
rights adopted by the Congress party. K.M. Munshi (a noted lawyer and a
member of the Constituent Assembly) had even included in his draft list of
rights, the ‘rights of workers’ and ‘social rights’, which included provisions
protecting women and children and guaranteeing the right to work, a decent
wage, and a decent standard of living.11 Subsequently, the objective of
ensuring these entitlements was included in the Directive Principles. The
primordial importance of these principles can be understood by the
following words of Dr. B.R Ambedkar, when he insisted on the use of the
word ‘strive’ in the language of Article 38 which mentions the governmental
objective of an equitable distribution of material resources:
“We have used it because it is our intention that even when there are
circumstances which prevent the Government, or which stand in the way of
the Government giving effect to these directive principles, they shall, even
under hard and unpropitious circumstances, always strive in the fulfillment
of these directives. … Otherwise it would be open for any Government to
say that the circumstances are so bad, that the finances are so inadequate
that we cannot even make an effort in the direction in which the Constitution
At the same time, even some controversial as well as communally sensitive issues such
as the desirability of enacting a Uniform Civil Code (Article 44) and the prohibition of
cow-slaughter (Article 48) came to be included in the non-justiciable Directive
Principles.
11
13
asks us to go.” [Constituent Assembly Debates, 19-11-1948]
Thus, the enforceability of measures relating to social equality though
incorporated in aspirational terms was never envisaged as being dependent
only on the availability of state resources. In some instances, the Courts have
privileged fundamental rights over directive principles while in others they
have creatively drawn a harmonious relationship between the two. An
example of this is the expansion of the conception of ‘personal liberty’ under
Article 21 of the Constitution which was traditionally invoked in the civilpolitical context to check governmental abuses. The judicially expanded
understanding of the same now includes several socio-economic
entitlements for citizens which place positive obligations on the state. What
is interesting is that the reading in of these socio-economic entitlements by
judges has often directly referred to the language of provisions contained in
the part dealing with directive principles. In this sense, judicial creativity has
transformed the substantive character of the protection of life and liberty.
Article 21 of the Constitution of India reads as follows: “No person shall
be deprived of his life or personal liberty except according to procedure
established by law.” The interpretation of this article in the early years of the
Supreme Court was that ‘personal liberty’ could be curtailed as long as there
was a legal prescription for the same. In A.K. Gopalan’s case,12 the Supreme
Court had ruled that ‘preventive detention’ by state agencies was permissible
as long as it was provided for under a governmental measure (e.g. legislation
or an ordinance) and the Court could not inquire into the fairness of such a
measure. It was held that the words ‘procedure established by law’ were
12
A.K. Gopalan v. State of Madras, AIR 1950 SC 27
14
different from the ‘substantive due process’ guarantee provided under the
14th amendment to the US Constitution. It was also reasoned that the framers
of the Indian Constitution consciously preferred the former expression over
the latter. This narrow construction of Article 21 prevailed for several years
until it was changed in Maneka Gandhi’s case.13 In that decision, it was held
that governmental restraints on ‘personal liberty’ should be collectively
tested
against
the
guarantees
of
fairness,
non-arbitrariness
and
reasonableness that were prescribed under Articles 14, 19 and 21 of the
Constitution. The Court developed a theory of ‘inter-relationship of rights’
to hold that governmental action which curtailed either of these rights should
meet the designated threshold for restraints on all of them. In this manner,
the Courts incorporated the guarantee of ‘substantive due process’ into the
language of Article 21.14 This was followed by a series of decisions, where
the conceptions of ‘life’ and ‘personal liberty’ were interpreted liberally to
include rights which had not been expressly enumerated in Part III. In the
words of Justice Bhagwati:15
“we think that the right to life includes the right to live with human
dignity and all that goes along with it, namely the bare necessities of life
such as adequate nutrition, clothing and shelter over the head and facilities
for reading, writing and expressing oneself in diverse forms.”
Moreover, through innovative and creative strategies, the Courts have
expanded the scope of the Fundamental Rights, in order to render justice to
women, children, bonded laborers and other oppressed sections of society.
Maneka Gandhi v. Union of India, AIR 1978 SC 597
See: T.R. Andhyarujina, ‘The Evolution of Due Process of Law by the Supreme Court’
in B.N. Kirpal et. al. (eds.), Supreme But Not Infallible – Essays in Honour of the
Supreme Court of India (OUP, 2000) at p. 193-213
15
Observations in Francis Coralie v. Union Territory of Delhi, (1981) 1 SCC 688
13
14
15
Notably, over the decades, the Supreme Court has affirmed that both the
Fundamental Rights and Directive Principles must be interpreted
harmoniously. It was observed in the Kesavananda Bharati case,16 that the
directive principles and the fundamental rights supplement each other and
aim at the same goal of bringing about a social revolution and the
establishment of a welfare State, the objectives which are also enumerated in
the Preamble to the Constitution. Furthermore, in Unni Krishnan, J.P. v.
State of Andhra Pradesh,17, Justice Jeevan Reddy declared:
“The provisions of Parts III and IV are supplementary and
complementary to each other and not exclusionary of each other and that
the fundamental rights are but a means to achieve the goal indicated in Part
IV”.
This approach of harmonizing the fundamental rights and directive
principles has been successful to a considerable extent. As indicated earlier,
the Supreme Court has interpreted the ‘protection of life and personal
liberty’ as one which contemplates socio-economic entitlements such as the
‘right to livelihood and housing’,18 the ‘right to health’19 and the ‘right to a
clean environment’20 among others. The court has gone to the extent of
(1973) 4 SCC 225
(1993) 1 SCC 645
18
Olga Tellis v. Bombay Municipal Corporation, AIR 1985 SC 180 (a journalist had filed
a petition on behalf of hundreds of pavement-dwellers who were being displaced due to
construction activity by the respondent corporation. The Court recognised the ‘right to
livelihood and housing’ of the pavement-dwellers and issued an injunction to halt their
eviction.)
19
Parmanand Katara v. Union of India, AIR 1989 SC 2039 (The Court held that no
medical authority could refuse to provide immediate medical attention to a patient in
need in an emergency case; The public interest litigation had arisen because many
hospitals were refusing to admit patients in medico-legal cases.)
20
M.C. Mehta v. Union of India, (1996) 4 SCC 750; In this Public Interest Litigation, the
Supreme Court ordered the relocation of hazardous industries located near residential
16
17
16
recognizing education as a justiciable right.21 This decision prompted a
Constitutional
amendment
which
inserted
Article
21-A
into
the
Constitutional text, thereby guaranteeing the right to elementary education
for children aged between 6-14 years. The Courts have also pointed to
Directive principles in interpreting the prohibitions against forced labour and
child labour. The enforcement of these rights leaves a lot to be desired, but
the symbolic value of their constitutional status should not be
underestimated.
Contemporary debates in Constitutional theory
At an international forum such as the present one, it is highly pertinent
to address some conceptual debates in the field of constitutional theory. As
mentioned in an earlier part of this paper, I would like to touch on three
issues, namely those of the proper understanding of ‘judicial review’, the
transformation of the substantive character of justiciable rights and the
increasing importance of ‘comparative constitutional law’. It can be stated
with a high degree of certainty that the global proliferation of written
constitutions is now an irreversible process. It is fairly difficult to argue that
a liberal democracy can function without an express guarantee of rights to its
citizens. Even the United Kingdom, which for long upheld the tradition of
‘parliamentary
sovereignty’ and relied on unwritten constitutional
conventions as the basis for the protection of the citizens’ liberties, has
become part of the European Convention on Human Rights (ECHR). In
areas in New Delhi. In the process, it spelt out the citizens’ ‘right to clean environment’
which was in turn derived from the protection of life and liberty enumerated in Article
21.
21
J.P. Unnikrishnan v. State of Andhra Pradesh, (1993) 1 SCC 645
17
doing so it has for all practical purposes accepted the philosophy of ‘judicial
review’, notwithstanding that the same is exercised by a supranational
tribunal.22 The doctrine of ‘judicial review’ which originated in an early
judgment of the U.S. Supreme Court in Marbury v. Madison,23 was not only
adopted by several newly independent nations in the decolonization-era but
has also been incorporated through constitutional reforms that have taken
place in countries such as Canada and South Africa in recent decades.
The importance of ‘judicial review’: In India, the inclusion of
‘judicial review’ was a necessary device to give teeth to the fundamental
rights. Dr. B.R. Ambedkar described the provision enabling the same as the
‘heart of the Constitution’. However, across several jurisdictions questions
have been asked about the proper understanding of this doctrine. There are
two principled objections offered against the very idea of ‘judicial review’ in
a democratic order. The first idea is that the judiciary being an unelected
body is not accountable to the people through any institutional mechanism.
In most countries judges are appointed through methods involving selection
or nomination, in which ordinary citizens do not have a say. It is argued that
allowing the judiciary to rule on the validity of the acts of a democratically
constituted legislature or executive is in itself a violation of the idea of
‘separation of powers’. This critique locates the role of the judiciary as
purely one of resolving disputes between parties and deferring to the
prescriptions of the elected legislature while doing so. In the Common Law
realm, this critique is based on the age-old notion of ‘parliamentary
As mentioned earlier, individual citizens of countries which are party to the European
Convention on Human Rights (ECHR) can question the actions of their respective
governments on the ground of violation of the rights enumerated in the said Convention.
23
Marbury v. Madison, 5 U.S. 137 (1803)
22
18
sovereignty’. With respect to the inherent value of a written constitution that
also incorporates ‘judicial review’, it would be appropriate to reproduce a
quotation by Justice Aahron Barak, formerly of the Supreme Court of Israel:
“To maintain real democracy and to ensure a delicate balance between
its elements -a formal constitution is preferable. To operate effectively, a
constitution should enjoy normative supremacy, should not be as easily
amendable as a normal statute, and should give judges the power to review
the constitutionality of legislation. Without a formal constitution, there is no
legal limitation on legislative supremacy, and the supremacy of human
rights can exist only by the grace of the majority’s self-restraint. A
constitution, however, imposes legal limitations on the legislature and
guarantees that human rights are protected not only by the self-restraint of
the majority, but also by constitutional control over the majority. Hence, the
need for a formal constitution.” 24
However, we must also consider another nuanced objection to the
doctrine of ‘judicial review’. It is reasoned that the substantive contents of a
constitution adopted by a country at a particular point of time reflect the will
of its framers. However, it is not necessary that the intent of the framers
corresponds to the will of the majority of the population at the time. In the
Indian setting, it is often argued that the members of the Constituent
Assembly were overwhelmingly drawn from elite backgrounds and hence
did not represent popular opinions on several vital issues. Furthermore, the
adoption of a constitution entails a country’s precommitment to its contents
Cited from: Aharon Barak, ‘A judge on judging: The role of a Supreme Court in
Democracy, 116 Harvard Law Review 16 (2002)
24
19
and the same become binding on future generations.25 Clearly the
understanding and application of constitutional principles cannot remain
static and hence a constitutional text also lays down a procedure for its
amendment. However, this power of amendment by the legislature is not
unlimited and the idea of ‘judicial review’ designates the higher judiciary as
the protector of the constitution. This scheme works smoothly as long as the
demands and aspirations of the majority of the population correspond with
the constitutional prescriptions. However, a cause for dissonance between
the wings of government arises when majoritarian policy-choices
internalized in legislative or executive acts tend to infringe on constitutional
provisions. In discharging its’ role as the protector of the Constitution, the
judiciary is then required to scrutinize the actions of its co-equal branches of
government. Some scholars have argued that fact-situations of this type
involve tensions between the understanding of the words ‘constitutionalism’
and ‘democracy’ respectively. Hence, it is postulated that the provision for
‘judicial review’ gives a self-contradictory twist to the expression
‘constitutional democracy’.26
In this regard the role of the judiciary can be described as one of
protecting
the
countermajoritarian
safeguards
enumerated
in
the
Constitution. It is apt to refer to an opinion given by Justice Robert Jackson
where it was held that citizens could not be compelled to salute the U.S.
See: Stephen Holmes, ‘Precommitment and the Paradox of Democracy’ in Douglas
Greenberg et. al. (eds.), Constitutionalism and Democracy: Transitions in the
Contemporary World (Oxford University Press, 1993) at p. 195-240
26
Refer: Jurgen Habermas and William Rehg, ‘Constitutional democracy: A paradoxical
union of contradictory principles?’, Political Theory, Vol. 29, No. 6 (December 2001) at
p. 766-781
25
20
national flag if the same offended their religious beliefs.27 He observed as
follows:
‘The very purpose of the bill of rights was to withdraw certain
subjects from the vicissitudes of political controversy, to place them beyond
the reach of majorities and officials and to establish them as legal principles
to be applied by the Courts. One’s right to life, liberty, and property, to free
speech, a free press, freedom of worship and assembly, and other
fundamental rights may not be submitted to vote: they depend on the
outcome of no elections.’
For example, in India there is considerable disenchantment with the
constitutional provision which places the personal laws of religious groups
beyond the scope of constitutional scrutiny. The framers preferred this
position in order to protect the usages and customs of religious minorities in
conjunction with the guarantee of ‘freedom of religion’ under the
Constitution. However, there have been persistent majoritarian demands for
a Constitutional amendment of this position so as to enact a ‘Uniform Civil
Code’ for regulating the private relations of citizens belonging to all
religions. These demands clearly have connotations of imposition by the
majority and are fiercely contested by those belonging to the religious
minorities. Noted scholar Samuel Isacharoff has argued that in fractured or
pluralist societies it is beneficial to implement a constitutional scheme so as
to restrain destructive majoritarian tendencies.28
West Virginia State Board of Education v. Barnette, 319 US 624 (1943)
See: Samuel Isacharoff, ‘Constitutionalising Democracy in fractured societies’, 82
Texas Law Review 1861-1891 (2004); In this article he has stressed on the importance of
constitutionalism for ensuring stability in post-apartheid South Africa as well as Bosnia
after the conflict which accompanied the break-up of Yugoslavia.
27
28
21
Coming back to the role of the judiciary, I would like to recount some
examples from the Indian Constitutional experience in order to reflect on the
so-called tensions between constitutionalism and democracy. The most
prominent challenge to the scope of ‘judicial review’ has occurred over the
proper place of the ‘right to property’ in the constitutional scheme. It must
be borne in mind that there existed immense inequality in the patterns of
land-ownership in pre-independence India, much of it corresponding to
caste-divisions. In the rural setting, most agricultural lands were owned and
controlled by upper castes who received the patronage of the colonial
government in return for ensuring the prompt collection of land revenue.
Elaborate institutions of landed intermediaries (such as the Zamindari
system) had become entrenched while cultivators from the lower castes
either had very small landholdings or were forced to work as bonded labour
under the control of these Zamindars. After independence, the Union
Parliament as well as the state legislatures sought to tackle this
institutionalized inequality by urgently pursuing a policy of agrarian land
reforms, which often overlooked questions such as the payment of adequate
compensation to the landowners whose property was acquired for public
purposes as well as for re-distribution among smaller cultivators. Such
governmental excesses prompted the land-owning classes to repeatedly
approach the Courts to protect their ‘right to acquire, hold and dispose of
property’ which had been enumerated in Article 19(1)(f) of the Constitution.
While the higher judiciary repeatedly defended the rights of landowners
against acquisition by the State, the Parliament responded with legislative
changes as well as Constitutional amendments to address the same. In fact,
legislations pertaining to agrarian land reforms were placed in the Ninth
22
Schedule to the Constitution,29 a part which was immunised from scrutiny by
the Courts, and thus formed an exception to the power of ‘judicial review’
provided under Article 13. However, the Supreme Court repeatedly upheld
challenges against these legislations which questioned the procedural
fairness of land acquisition.30
Since the Union Parliament was dominated by the ruling Congress Party
till the mid-1960’s, it virtually became a tussle between the Executive and
the Judiciary. Matters came to a head in the Golaknath case,31 where the
Supreme Court ruled by a narrow majority (6-5) that the power of the
parliament to amend the constitution was limited, and that the Courts were
within their power to inquire into such amendments. The Parliament
responded with a Constitutional amendment that extended its own power to
amend any part of the Constitution by means of the process prescribed under
Article 368. This amendment in turn was questioned in the much-cited
Keshavananda Bharati case,32 where the Supreme Court laid down the
doctrine of the inviolable ‘Basic structure’ of the Constitution which limits
the amending power of the parliament. A narrow majority of the judges (7-6)
in this case ruled that certain features of the Constitution were integral to its
existence and could not be altered by way of amendments by the legislature.
They also defended the power of the judiciary to inquire into legislative
29
The ‘Ninth Schedule’ was inserted into the Constitution in 1951, originally to shield
agrarian land reform laws from judicial scrutiny. However, this scheme, which originally
comprised of thirteen legislations in 1951, had mushroomed to include 284 laws by 2006,
many unrelated to land reform or ending feudalism. It has thus been the subject of
frequent criticism since it curtails the power of ‘judicial review’.
30
See generally: S.P. Sathe, ‘Judicial Activism: The Indian Experience’, 6 Washington
University Journal of Law and Policy 29-107 (2001)
31
Golaknath v. State of Punjab, AIR 1967 SC 1643
32
Keshavananda Bharati v. State of Kerala, (1973) 4 SCC 225
23
actions for safeguarding this ‘Basic Structure’. However, there was some
inconsistency in identifying all the provisions that constituted this ‘Basic
structure’. While later decisions33 identified basic features such as
democracy, secularism, federalism, judicial independence as well as
protection of life and liberty among others, many commentators have drawn
attention to the ‘open-textured’ nature of this doctrine.34 In recent years some
political formulations – especially the Left-wing parties have publicly
argued that judges can use the ‘basic structure’ doctrine in a discretionary
and unpredictable manner to rule against otherwise socially beneficial
legislative and executive acts, for instance those seeking to expand the
policy of reservations for disadvantaged sections or land acquisition for
developmental purposes. Despite these misgivings, the coining of the ‘Basic
Structure’ doctrine in the Keshavananda Bharati decision holds immense
significance in our constitutional history since it re-asserted the
independence of the judiciary, especially during a period of excessive
interference by the executive.35
In recent years, two cases involving the power of the courts to review
Parliament’s legislative and non-legislative functions- i.e. the opinions in the
See the judgment in Minerva Mills v. Union of India, AIR 1980 SC 1789
See: Raju Ramachandran, ‘The Supreme Court and the Basic Structure Doctrine’ in
B.N. Kirpal et. al. (eds.), Supreme but not Infallible - Essays in Honour of the Supreme
Court of India (OUP, 2000) at p. 107-133; It should be mentioned here that by way of the
44th amendment in 1978, the ‘right to property’ was subsequently removed from Part III
of the Constitution (which deals with the fundamental rights) and given the status of an
ordinary legal right under Article 300A.
35
In the early 1970’s appointments to the higher judiciary were controlled by the
executive and three of the judges who ruled for the ‘basic structure’ doctrine were
subsequently superceded in the matter of appointment to the position of the Chief Justice
of India in 1973. See: Granville Austin, ‘The Supreme Court and the struggle for custody
of the Constitution’ in B.N. Kirpal et. al. (eds.), Supreme but not Infallible - Essays in
Honour of the Supreme Court of India (OUP, 2000) at p. 1-15
33
34
24
Coelho36 and Raja Ram Pal37 cases- have demonstrated that the Indian
Supreme Court is embarking on a new and expanded understanding of
‘judicial review’. The Coelho case decided whether the Supreme Court
could review acts of Parliament placed within the Ninth Schedule, and the
Raja Ram Pal case, passed judgment on whether Parliament’s internal
procedures (in this case, expulsion of Members of Parliament on account of
corruption charges) were justiciable.
In the Coelho decision, the Supreme Court held that it could strike down
any law inserted into the Ninth Schedule if it were contrary to Constitutional
provisions. It was observed:
The jurisprudence and development around fundamental rights has made
it clear that they are not limited, narrow rights but provide a broad check
against the violations or excesses by the State authorities. The fundamental
rights have in fact proved to be the most significant constitutional control on
the Government, particularly legislative power.
It also stated that, “It cannot be said that the same Constitution that
provides for a check on legislative power, will decide whether such a check
is necessary or not. It would be a negation of the Constitution.”
In the Raja Ram Pal case, the Supreme Court disposed of the arguments
regarding the unconstitutionality of the expulsion of Members of Parliament
while simultaneously upholding the principles of judicial review. The court
I.R. Coelho (Dead) By Lrs v. State of Tamil Nadu & Others, (2007) 2 SCC 1
[hereinafter Coelho]
37
Raja Ram Pal v. Hon’ble Speaker, Lok Sabha & Others, (2007) 3 SCC 184 [hereinafter
Raja Ram Pal]
36
25
began by stating that the Constitution was the “supreme lex in this country”
and went on to state that:
“Parliament is a coordinate organ and its views do deserve deference
even while its acts are amenable to judicial scrutiny ... mere co-ordinate
constitutional status ... does not disentitle this Court from exercising its
jurisdiction of judicial review”.
The court also acknowledged that although it may not question the truth
or correctness of the material ... [nor] substitute its opinion for that of the
legislature, proceedings of Parliament which may be tainted on account of
substantive or gross illegality or unconstitutionality could still be reviewed
by the judiciary. These two decisions reassert the Constitutional scheme of a
balance of power between the legislative and judicial branches, and also
ensure that legislators will now no longer be able to evade the scrutiny of a
watchful judiciary.38
The transformation in the character of justiciable rights: It can be
postulated that the doctrine of ‘judicial review’ helps in binding a polity to
its core constitutional principles. In the post World War II era, the memory
of devastating conflicts and oppressive colonialism ensured that these
principles were initially centered on the protection of basic civil-political
rights such as free speech, assembly, association and movement as well as
guarantees against abusive practices by state agencies such as arbitrary
arrest, detention, torture and extra-judicial killings. The growth of
Constitutionalism has also been synonymous with that of liberal values
See generally: Martin H. Redish, ‘Political Consensus, Constitutional formulae, and the
rationale for Judicial Review’, 88 Michigan Law Review 1340 (1990)
38
26
which privilege an individual’s dignity as well as collective welfare. In
highly disparate and iniquitous societies, such a commitment also requires
some countermajoritarian safeguards. Depending on the social profile of a
country’s population, these safeguards may be of the nature of those
guaranteeing the rights of ethnic, religious and cultural minorities as well as
measures for the advancement of historically disadvantaged communities
and poorer sections of society. Such safeguards which are meant to tackle
social differences based on factors such as religion, caste, gender, class and
region among others, also have clear socio-economic dimensions. Hence, the
role of the Courts in protecting constitutional values goes beyond the
enforcement of clearly defined civil-political rights applicable to individual
citizens and extends towards an engagement with the continuously evolving
understanding of ‘group rights’ which necessarily have socio-economic
dimensions.
To appreciate the transformation in the substantive nature of justiciable
rights, it is necessary to reiterate the theoretical distinction between their
‘negative’ and ‘positive’ dimensions.39 The classification of enumerated
rights can be based on who they are directed against and whether they
involve a ‘duty of restraint’ or a ‘duty to facilitate entitlements’. The
language of a substantive right usually indicates whether it is directed
against state agencies, private actors or both. For instance in the Indian
Constitution, civil-political rights such as ‘freedom of speech, assembly and
association’ are directed against the State, since the text expressly refers to
the State’s power to impose reasonable restrictions on the exercise of the
The distinction between the notions of ‘negative’ and ‘positive’ rights in legal theory
was first prominently discussed by Wesley Newcomb Hohfeld.
39
27
same. This implies that under ordinary conditions the State has an obligation
not to infringe on these liberties. This ‘duty of restraint’ forms the basis of
rights with a ‘negative’ dimension. Hence in the early years of the Indian
constitutional experience, civil liberties and the protection against
deprivation of life and liberty were understood mainly as imposing duties of
restraint on governmental agencies as well as private citizens. However, in
contrast to these justiciable ‘negative’ rights the directive principles of state
policy allude to several socio-economic objectives which had a ‘positive’
dimension. Even though the directive principles are non-justiciable, there
language is couched in the terms of positive obligations on governmental
agencies to enable their fulfillment.40
As mentioned earlier, the Indian Courts have responded to this hierarchy
between ‘negative’ and ‘positive’ rights by trying to collapse the distinction
between the same. The inclusion of the ‘substantive due process’ guarantee
in the Maneka Gandhi decision was the precursor to the judicial adoption of
the approach of ‘harmonious construction’ between the fundamental rights
and the directive principles. The focal point of this approach has been the
interpretation of the protection against deprivation of life and liberty in
Article 21. The understanding of this protection has been radically
transformed to include a wide range of socio-economic entitlements such as
housing, shelter, education and environmental protection. Much of this
constructive reading has relied on the egalitarian orientation of the directive
principles and in the case of the ‘right to education’, an express provision.
The advancement of ‘judicial activism’ through this means has of course
See generally: Chapters 3,4 and 8 in Sandra Fredman, Human rights transformed –
positive rights and positive duties (New Delhi: Oxford University Press, 2008)
40
28
raised the popular profile of the higher judiciary in India. However, doubts
are perpetually raised about the expansion of the scope of justiciability.
Arguments are routinely made against the accommodation of ‘aspirational’
directive principles within the ambit of judicial enforcement.
There are two conceptual objections against extending constitutional
justiciability to these positive obligations. The first is that if judges devise
strategies to enforce the directive principles, it amounts to an intrusion into
the legislative and executive domain. It is reasoned that the articulation of
newer fundamental rights is the legislature’s task and that the judiciary
should refrain from the same. Furthermore, it is posed that executive
agencies are unfairly burdened by the costs associated with these positive
obligations, especially keeping in mind that these obligations were
enumerated as directive principles by the framers on account of practical
considerations. This criticism mirrors the familiar philosophy of ‘judicial
restraint’ when it comes to constitutional adjudication. However, the second
objection to the reading in of positive obligations raises some scope for
introspection amongst judges. It can be argued that the expansion of
justiciability to include rights that are difficult to enforce takes away from
the credibility of the judiciary in the long-run. The judicial inclusion of
socio-economic objectives as fundamental rights can be criticised as an
exercise merely on paper, which may have no bearing on ground-level
conditions. In turn the inability of state agencies to protect such aspirational
rights can be said to have an adverse effect on public perceptions about the
efficacy of the judiciary.41
The following article encapsulates the arguments offered against the constitutional
prescription of aspirational rights, such as directive principles: Jeffrey Usman, ‘Nonjusticiable Directive Principles: A constitutional design defect’, 15 Michigan State
41
29
The prescription of normative rights always carries the risk of poor
enforcement. However, the question we must ask ourselves is whether poor
enforcement is a sufficient reason to abandon the pursuit of rights whose
fulfillment enhances social and economic welfare. At this point, one can
recount Roscoe Pound’s thesis on law as an agent of social change. The
express inclusion of legal rights is an effective strategy to counter-act social
problems in the long-run. At the level of constitutional protection, such
rights have an inherent symbolic value which goes beyond empirical
considerations about their actual enforcement.42 The colonial regime in the
Indian subcontinent periodically made legislative interventions to discourage
retrograde and exploitative social practices such as Sati (immolation of
widows), prohibition of widow-remarriage and child marriage. Even though
there have been persistent problems in the enforcement of these legislations,
in the long run they have played an important part in reducing the incidence
of these unjust customs. It is evident that in the short run even the coercive
authority of law may not be enough of a deterrent, but in the long run the
very fact of the continued existence of such authority helps in creating
public opinion against the same practices.43
In the same way the framers of our Constitution sought to depart from
the inequities of the past by enumerating a whole spectrum of rights and
entitlements. While the understanding of ideas such as ‘social equality’ and
Journal of International Law 643 (2007)
42
For a theoretical defence of bringing social-welfare oriented rights within the purview
of ‘judicial review’, Refer: Mark Tushnet, ‘Social Welfare Rights and the forms of
Judicial Review’, 82 Texas Law Review 1895 (2004)
43
See: S.B. Burman, ‘Symbolic dimensions of the enforcement of law’, British Journal of
Law and Society, Vol. 3, No. 2 (Winter 1976) at p. 204-217
30
‘religious freedom’ is keenly contested in the legislative as well as judicial
domains, there is no doubt that constitutional rights have been an important
tool of social transformation in India. The enumeration of the various civil
liberties and protections against arbitrary actions by the state are now
identified as core elements of citizenship and violations provoke a high
standard of scrutiny both by the judiciary as well as civil society groups. The
inclusion of entitlements such as universal adult franchise have greatly
reduced the coercive power of casteist and feudal social structures and
empowered political parties that represent historically disadvantaged
sections such as the Scheduled Castes (SC) and Scheduled Tribes (ST). Even
though practices such as untouchability, forced labour and child labour have
not been totally eradicated, our constitutional provisions prohibiting the
same are the bedrock behind legal as well as socio-political strategies to curb
the same. The Supreme Court of India has further internalized the
importance of laying down clear normative standards which drive social
transformation. Its interventions through strategies such as the expansion of
Article 21 and the use of innovative remedies in Public Interest Litigation
(PIL) cases has actually expanded the scope and efficacy of constitutional
rights by applying them in previously unenumerated settings. In recognizing
and enforcing rights for the weakest sections in society, the activism of the
Indian judiciary has actually improved its own public standing.
Increasing importance of comparative constitutional law: In addition to
the questions posed by the changing substantive character of justiciable
rights, it is apparent that constitutional systems in different countries
routinely borrow doctrine and precedents from each other. In the early years
of the United Nations system, many new Constitutions incorporated
31
mutually similar provisions by drawing upon international instruments such
as the UDHR, ICCPR and ICESCR as well as the then long-established
constitutional systems such as those of the United States of America. The
inclusion of substantive rights in national constitutions became an
alternative method for the assumption of treaty obligations, while allowing
countries the right to selectively choose amongst the evolving international
human rights norms.44 While this transplantation of constitutional doctrines
was most evident in the case of newly liberated colonies, the Soviet-led bloc
followed a divergent path by prioritizing collective socio-economic
objectives over basic individual rights. Since the 1990’s, the dismantling of
communist rule in the former USSR and Eastern Europe has prompted a new
wave of constitutionalism, with several countries adopting written
constitutions that provide for basic civil-political rights enforceable through
judicial means. In recent years, the decisions of Constitutional Courts in
common law jurisdictions such as South Africa, Canada, New Zealand and
India have become the primary catalyst behind the growing importance of
comparative constitutional law. In these jurisdictions, reliance on foreign
precedents has become commonplace in public law litigation.45
The absorption of foreign law into domestic legal systems takes place
through multiple means. These means can be classified under three broad
categories – assumption of treaty obligations, express legislative
See generally: Clair L’Hereux-Dube, ‘Human Rights: A worldwide dialogue’ in B.N.
Kirpal et. al. (eds.), Supreme but not Infallible- Essays in Honour of the Supreme Court
of India (OUP, 2000) at p. 214-231
45
See generally: Mark Tushnet, ‘The possibilities of Comparative Constitutional Law’,
108 Yale Law Journal 1225 (1999); Sujit Chaudhary, ‘Globalisation in search of
justification: Toward a theory of Comparative Constitutional Interpretation’, 74 Indiana
Law Journal 819 (1999); Martha Nussbaum, ‘Introduction to Comparative
Constitutionalism’, 3 Chicago Journal of International Law 429 (2002)
44
32
incorporation and judicial invocation. While a country’s assumption of
obligations under international instruments (treaties, conventions) is largely
in the domain of executive functions, legislative incorporation is also
considered a democratic means of internalizing international norms.
However, there is some resistance against the judicial invocation of
international and comparative law. While reference to evolving international
human rights norms and decisions of international adjudicatory institutions
is accorded a certain degree of legitimacy in most liberal constitutional
systems, there has been considerable opposition to the citation of precedents
from foreign jurisdictions. Especially in the United States, there has been a
prominent debate over the citation of foreign precedents between Supreme
Court Justices Stephen Breyer and Antonin Scalia. Justice Scalia registered
his opposition to the citation of foreign precedents in his dissenting opinion
in Roper v. Simmons,46 where the majority opinion delivered by Justice
Breyer referred to several international instruments as well as foreign
decisions to rule against the constitutionality of administering the death
penalty to juveniles. In the said opinion the ‘right against cruel, inhuman
and degrading punishment’ enumerated in the 8th amendment of the U.S.
Constitution was read expansively by way of reliance on foreign materials.
Since the delivery of that opinion, Justice Scalia’s viewpoint has found more
support with the appointment of Justice John Roberts Jr. and Justice Samuel
Alito Jr. to the U.S. Supreme Court, who expressed their opposition to the
citation of foreign precedents during the Senate hearings for the
confirmation of their appointments.
125 S. Ct. 1183 (2005), Justice Scalia’s dissenting opinion starts at p. 1229; For an
academic opinion against the citation of foreign precedents, see Steven G. Calabresi and
Stephanie Dotson Zimdahl, ‘The Supreme Court and foreign sources of law: Two
hundred years of practice and the juvenile death penalty decision’, 47 William and Mary
Law Review 743 (December 2005)
46
33
Chief Justice John Roberts Jr. has put forward two arguments against
the practice of ‘transjudicial communication’. According to him, since
foreign judges are not even remotely accountable to the electorate or any
public agency, reliance on their decisions amounts to an anti-democratic
exercise. The second objection is that if judges freely rely on foreign
precedents, then they tend to arbitrarily cite decisions favourable to their
personal viewpoints, often from jurisdictions where the societal conditions
are entirely different from those in the United States. In such a scenario,
judges would be free to indulge in ‘cherry-picking’ for justified their
decisions rather than engage in a rigorous inquiry into domestic precedents.47
This criticism also draws from the idea of ‘exceptionalism’ or the unique
status of the United States amongst the comity of nations. A rhetorical line
of reasoning is that the framers of the United States Constitution aimed to
establish a polity which was a radical departure from the political
institutions of the ‘Old World’ and that the American system was meant to
lead the way for other countries and not vice versa.48 The partisan character
of the judicial appointment process has ensured that this issue draws a clear
wedge among the justices of the U.S. Supreme Court.
It is disappointing to learn of the extent of distrust of foreign
precedents amongst some prominent members of the legal community in the
U.S.A. American Constitutional Law has been a source of inspiration and
Cited from: Mark C. Rahdert, ‘Comparative Constitutional Advocacy’, 56 American
University Law Review 553 (2007)
48
Arguments based on the ‘exceptionalism ‘of American Constitutional Law have been
put forward in the following article: Steven G. Calabresi, ‘A shining city on a hill:
American Exceptionalism and the Supreme Court’s practice of relying on foreign law’,
86 Boston University Law Review 1335 (December 2006)
47
34
doctrinal borrowing for many liberal constitutional systems that were created
after it. Judges in India routinely cite precedents from U.S. Courts besides
other foreign jurisdictions and international law.49 It is obvious that the mere
citation of a foreign decision does not imply that a domestic court is bound
by the former. A domestic court’s citation of a foreign precedent may result
in an approval or distinction from the fact situation before it. In any case, a
foreign precedent should only be assigned persuasive value and cannot be
relied on when it runs contrary to existing domestic law. It is true that the
socio-political conditions prevailing in different jurisdictions will pose legal
problems particular to them, but there is no reason why constitutional courts
in these countries should not benefit from each other’s experiences in
tackling them. With the ever-expanding scope of international human rights
norms and transnational institutions dealing with disparate issues such as
trade liberalisation, climate change, war crimes, law of the sea and crossborder investment disputes among others, there is a concomitant trend
towards convergence in the domestic constitutional law of different
countries. In this era of globalization of legal standards, there is no reason to
suppress the judicial dialogue between different legal systems.50
In February 1988, the first Commonwealth judicial colloquium held in
Bangalore was attended by several eminent judges from different countries –
among them being Justice P.N. Bhagwati, Justice Michael Kirby, Lord
See: Adam M. Smith, ‘Making itself at home: Understanding foreign law in domestic
jurisprudence – The Indian case’, 24 Berkeley Journal of International Law 218 (2006);
Also see Arun Thiruvengadam, ‘The Global Dialogue among Courts: Social Rights
Jurisprudence of the Supreme Court of India from a comparative perspective’ in C. Raj
Kumar & K. Chockalingam(eds.), Human Rights, Justice and Constitutional
Empowerment (OUP, 2007) at p. 264-309
50
See: Vicki Jackson, ‘Constitutions as ‘Living Trees’? Comparative Constitutional Law
and interpretive metaphors’, 75 Fordham Law Review 921 (November 2006)
49
35
Lester, Justice Haleem and Justice Ruth Bader Ginsburg. That colloquium
resulted in the declaration of the Bangalore Principles which deal with how
national courts should absorb international law to fill existing gaps in
domestic law.51 Special emphasis was laid on the handling of unenumerated
norms so as to strengthen the ‘rule of law’ and constitutional governance.
Despite immense opposition on their declaration, these principles have
gradually found wide acceptance with judges in many jurisdictions looking
towards the growing body of international human rights law to streamline
their domestic laws. This also creates compelling reasons for constitutional
courts in different jurisdictions to look to each other’s decisions. The growth
of constitutionalism will be better served with less resistance to the
increasingly important discourse of comparative constitutional law. It is
through this framework of recognizing a growing international consensus on
the understanding of individual as well as group rights that judges in
constitutional courts can lead the way in advancing socio-political reforms in
their respective countries.
The text of the principles has been reproduced in: Michael Kirby, ‘Domestic
Implementation of International human rights norms’, 1999 Australian Journal of
Human Rights 27; Also see – Lord Lester of Herne Hill, ‘ The challenge of Bangalore –
Making human rights a practical reality’, 3 European Human Rights Law Review 273292 (1999)
51
36