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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 !"# $00"%
&y' Justice )*) &alakrishnan# Chief Justice of +ndia
,he gro-th of .Constitutionalism/
If one traces the evolution of political institutions during the 20
th
century,the most significant development is the proliferation of written constitutions
all over the world. About a century ago, the United States was among the
few prominent nations which had gained considerable experience with
constitutional governance. At the time, the ritish !mpire was at its pea"
and its colonies followed the tradition of adhering to unwritten constitutional
principles and the doctrine of #parliamentary sovereignty$. Subse%uent to the
&irst 'orld 'ar, several countries adopted written constitutions, but the
failure of the 'eimar (onstitution in )ermany prompted considerable
s"epticism about the future of (onstitutionalism. *he turning point came
after the end of 'orld 'ar II. *he extensive suffering and loss of life during
the years of conflict prompted multilateral efforts to ensure the protection
and promotion of human rights. *his was the genesis of the United +ations
system, and the concerns with the protection of individual rights came to be
articulated in the form of the Universal eclaration of -uman ights
/U-.
*his progression in international cooperation coincided with the era of
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decoloniation, since the !uropean powers were far too wea"ened to
continue their control over distant colonies. &urthermore, the liberation of
many colonies was catalysed by nationalist movements all over Asia and
Africa which had espoused the cause of individual civil3political rights as
well as socio3economic entitlements. 4ost 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 internalie the practice of
democracy while also guaranteeing a set of substantive rights to their
citiens. In the framing of these texts, there has been a widespread tendency
to borrow from the constitutional provisions of foreign 5urisdictions as well
as the provisions of international instruments such as the International
(ovenant on (ivil and 6olitical ights /I((6 and the International
(ovenant on !conomic, Social and (ultural ights /I(!S(.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 ine%uality. +oted scholar )ranville Austin2 has
attributed the ob5ectives of creating #unity$, #democracy$ and a #social
revolution$ to the framers of the Indian (onstitution. In relatively recent
times one can point to the example of the new South African (onstitution,
which was adopted in 1778 and mar"s a clear departure from the past history
of racial apartheid. *he framers of the South African (onstitution not only
relied on international instruments but also too" part in extensive
1See ruce Ac"erman, #*he ise of 'orld (onstitutionalism$, 9: Virginia Law Review;;13;7; /177;2 See< )ranville Austin, The Indian Constitution: Cornerstone of a nation /=xford
University 6ress, 17>>
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consultations with 5urists and administrators from other 5urisdictions in order
to learn from their experiences in administering written constitutions.
Another interesting development in this field has been the emergence of
supranational ad5udicatory bodies such as the !uropean (ourt of -uman
ights /!(-. (reated to enforce the rights guaranteed under the !uropean
(onvention on -uman ights, the Strasbourg based (ourt is at the core of
what is perhaps the strongest regional system for protection of human rights
which allows individual citiens of the !uropean Union /!U nations to
institute actions against their own governments. *his creates an active
interface between domestic constitutional law and public international law.
It is of course a clear departure from the modalities of the International
(ourt of ?ustice /I(? which can redress individual grievances only if the
same are espoused by the concerned state parties.:
As a representative of the higher 5udiciary in India, I am in a position to
offer some thoughts on the evolution of #constitutionalism$ in my country. I
would li"e to proceed with this paper in two broad divisions.
*he first segment is an overview of the fundamental rights guaranteed
to citiens under the (onstitution of India. esides briefly
enumerating the content of these rights enshrined in 6art III of the
: See< ieter )rimm, *he (onstitution in the 6rocess of enationaliation$,
Constellations, @ol. 12, +o. 8 /200 at p. 88;38>:B A related development has been the
emergence of U+ mandated tribunals following the conflicts in Cugoslavia, wanda,Sierra Deone and (ambodia E followed by the establishment of the International (riminal
(ourt /I(( under the ome Statute, with all these bodies being empowered to prosecute
individuals for the commission of grave crimes such as genocide and war crimes.-owever, the evolution of International (riminal Daw does not have a direct interface
with domestic law unless a particular country specifically incorporates its obligations and
nature of involvement with an ad5udicatory institution.
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(onstitution, it is also important to understand the motives of the
framers in incorporating the same. It also becomes necessary to refer
to 6art I@ of the (onstitution which deals with the non35usticiable
#directive principles of state policy$. *his is significant since the
higher 5udiciary in India has repeatedly faced fact3situations that
involve a divergence between the 5usticiable fundamental rights and
the #non35usticiable$ directive principles. In many cases, our higher
5udiciary 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 civil3political
rights and #non35usticiable$ socio3economic aspirations.
*he second part of this paper delves into some theoretical debates in
the domain of constitutional theory. 'ith 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 #5udicial review$ in a
constitutional democracy. *he next issue is the transformation in the
substantive character of constitutional rights, since socio3economic
entitlements are progressively being made 5usticiable thereby placing
positive obligations on state agencies that are of a binding nature. *he
third theme to be touched on is the growing importance of the field of
#comparative constitutional law$. 'hen (onstitutional (ourts in
different 5urisdictions increasingly cite each other$s decisions, this
#trans5udicial communication$8acts as a catalyst for recogniing an
international consensus on the understanding of rights.
8 *he phrase #trans5udicial communication$ was coined by academic Anne34arieSlaughter to describe the increasing tendency of (onstitutional (ourts in different
countries to refer to each others$ decisions. efer< Anne34arie Slaughter, #A typology of
trans5udicial communication$, 27 University of Richmond Law Review77 /1778
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'ith regard to the protection and promotion of individual rights and
freedoms, the framers of the Indian (onstitution did indeed ta"e some
progressive steps for their time. *he inclusion of #fundamental rights$ of
citiens was the sub5ect of extensive discussions on the floor of the
(onstituent Assembly. It must be noted that the demands for a charter of
citiens$ rights had been articulated much earlier during the struggle for
independence from ritish ule. Under the rule of the !ast India (ompany
and subse%uently the ritish (rown, there had been a progressive
transplantation of modern government institutions such as legislatures and
formal courts. -owever, these legislatures were elected through a limited
franchise based on education and property related %ualifications, and were
not representative of the people. *he formal (ourts for the most part applied
statutory laws that had been either transplanted from ritain or developed by
government appointed experts in an opa%ue and non3consultative manner.
*owards the end of the 17th century, the nationalist sentiment among
Indians had germinated amongst the educated middle3classes who sought
more participation in governance. emands for a charter of rights were
made as early as 197 when a bill on governmental reforms had been
introduced. =ver the next few decades, the protection of civil3political rights
became the foundational concern of the nationalist mobiliation as 4ahatma
)andhi gained prominence with the (ivil isobedience 4ovement in 1722
and the +on3(ooperation movement in 17:0. *he (ongress 6arty 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 1727 and reiterating it at its$ Dahore Session in 17:1.
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Attempts to lobby for an inclusion of an express guarantee of rights were
renewed in anticipation of the )overnment of India Act, 17:. -owever,
the colonial government did not relent in its stand against the express
guarantee of civil3political rights. *he !nglish 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 ade%uately protected by way of norms
developed through ordinary statutes and 5udicial precedents.>*he framers of
the Indian (onstitution chose to depart from the colonial legacy of
#legislative supremacy$ and adopted a part which enumerated the
#fundamental rights$ of citiens in the newly3created republic. *he status of
these rights was strengthened through a provision for #5udicial review$ over
governmental action as well as the right of citiens to approach the courts to
see" remedies against the violation of these rights. Article 1:/2 of the
(onstitution of India prescribes that the Union or the states shall not ma"e
any law that ta"es 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. *he 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.
&or a bac"ground on the demands for a bill of rights during the freedom struggle, seeS.6. Sathe, #?udicial Activism< *he Indian !xperience$, > Washington University ournal
of Law and !olicy27310; /2001>*his position which preferred #legislative supremacy$ has been diluted in recent years,with the United Fingdom becoming party to the !uropean (onvention on -uman ights
/!(-. *he !(- lays down 5usticiable rights and most of them have been
incorporated in the -uman ights Act, 1779. *he implication of this is that citiens of theUnited Fingdom can %uestion the legislative and executive acts of their own government
before a supranational tribunal /!uropean (ourt of -uman ights located in Strasbourg
on the ground of violation of the rights enshrined in the said (onvention. .
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*he (onstitutional text also facilitated India$s transition into a
democratic republic. *he most important mar"er of a constitutional
democracy is the conduct of fair elections where all citiens can vote freely
in order to determine the composition of government. uring the latter
stages of colonial rule, periodic elections had been held for the composition
of the provincial assemblies and a (entral Degislature but the voting rights
were lin"ed to educational %ualifications and ownership of property, thereby
limiting the same to a miniscule part of the population. !ven in the
(onstituent Assembly, there was some support for the idea of #limited
franchise$ based on the reasoning that the illiterate masses were not mature
enough for modern democracy. -owever, the Indian (onstitution
incorporated the principle of #universal adult franchise$ at a time when even
'estern 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.
*he lower house of parliament i.e. the "Lo# $a%ha&/-ouse of the 6eople
truly represents all of India$s diversity while the upper house i.e. the "Ra'ya
$a%ha& /(ouncil of States provides proportional representation to all the
States.
At this 5uncture, it may be useful to present a brief overview of the
contents of 6art III of the (onstitution of India, which enumerates the
fundamental rights of citiens. *he language of many of these rights
incorporated that of the Universal eclaration of -uman ights /1789 and
also mirrored some of the provisions of the I((6 and the I(!S(, which
were the sub5ect3matter of discussion at the United +ations around that
period. 4ost of these rights are enforceable against the State, while some
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others are directed both against the State and private actors. *he most
important feature however is that the fundamental rights gave the higher
5udiciary a clear set of criteria to regulate relations between citiens and the
government /i.e. #vertical application of rights$ as well as between citiens
themselves /i.e. #horiontal application of rights$. &urthermore, Indian
(ourts have interpreted these rights not only in a #negative$ dimension, i.e.
in terms of protection against violations of guaranteed rights by the state and
other citiens but also in a #positive$ dimension which places obligations on
the state to ensure the availability of socio3economic entitlements to citiens.
Article 18 of the (onstitution of India provides a guarantee of #e%ual
protection before the law$, Article 1 prohibits discrimination on the
grounds of religion, race, caste, class and gender E but at the same time
permits the State to ma"e special provision for the advancement of women
as well as #socially and educationally$ bac"ward sections of society. *he
language of Article 1 has been interpreted in the spirit of #substantive
e%uality$ which allows #differential treatment$ in order to address prevalent
social ine%ualities. -ence Article 1 forms the basis of policies such as
reservations to facilitate the entry of candidates belonging to historically
disadvantaged sections such as Scheduled (astes /S( and Scheduled *ribes
/S* in the legislatures, public employment and higher educational
institutions.;Article 1> 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 1; prohibits the practice of
;&or a brief overview of the development of the law on reservations, See< 6armanandSingh, #!%uality and (ompensatory iscrimination< *he Indian !xperience$ in (. a5
Fumar G F. (hoc"alingam /eds., (uman Rights) ustice and Constitutional
*m+owerment/+ew elhi< =xford University 6ress, 200; at p. 12>312
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caste3based #untouchability$ whereas Article 19 abolished titles /with the
exception of military and academic titles. Articles 1; and 19 can be
enforced against private parties.
Article 17 safeguards the liberties of citiens which have both civil3
political and socio3economic dimensions. Among the enumerated liberties
are the freedom of speech, assembly, association, movement within the
country and the freedom to pursue a livelihood. &reedoms such as those of
#speech, assembly and association$ had special resonance for the members of
the (onstituent Assembly since many of them had first3hand experience
with the colonial government$s restrictions on the functioning of
newspapers, the organisation of political rallies and the mobiliation of trade
unions. *he protection of these liberties was synonymous with the ethos of
the freedom struggle in the subcontinent. *he right to livelihood which
primarily has socio3economic implications has been guaranteed in the form
of the citiens$ freedom to pursue a profession, trade, business or occupation
of their choice. *hese liberties are however sub5ect to #reasonable
restrictions$ by the State on enumerated grounds that mostly pertain to
#public interest$. It goes without saying that most of the constitutional
litigation re%uires a 5udicial determination of the permissible extent of
restrictions on these enumerated freedoms.
Articles 20, 21 and 22 together constitute the #due process$ rights, which
guarantee certain protections to individuals against arbitrary actions by the
State. &or instance Article 20 incorporates the rule against #double35eopardy$
in criminal litigation, prohibits the #retrospective criminalisation$ of acts by
the legislature and also enumerates the #protection against self3
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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$. *he scope
of the protection under Article 21 has been progressively expanded by the
Supreme (ourt of India and in a later segment of this paper I will refer to
some cases wherein the same has been done. Article 22 protects citiens
against unlawful detention and also provides safeguards in instances of
#preventive detention$ by the State.
Articles 2: and 28 see" to restrain exploitative social practices and are
directed against both the state as well as private actors, thereby creating
#horiontally$ applicable rights. Article 2: prohibits the traffic"ing of human
beings and other forms of forced labour while Article 28 prohibits the
employment of children under the age of fourteen in factories, mines and
other forms of haardous employment. *hese rights have been the sub5ect of
some prominent decisions given by our Supreme (ourt in 6ublic Interest
Ditigation /6ID cases.
Articles 23:0 constitute the #religious guarantees$. *he #freedom of
religion$, #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 2 and 2> of the
(onstitution. *he #freedom of religion$ is however sub5ect to governmental
restraints on grounds such as #public order, morality and health$ as well as
considerations pertaining to the other rights enumerated in 6art III. *he
(ourts have also 5ustified intervention with religious practices on grounds
such as social reform and have drawn a demarcation between the purely
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as#s us to go25J(onstituent Assembly ebates, 1731131789K
*hus, the enforceability of measures relating to social e%uality though
incorporated in aspirational terms was never envisaged as being dependent
only on the availability of state resources. In some instances, the (ourts 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 (onstitution which was traditionally invo"ed in the civil3
political context to chec" governmental abuses. *he 5udicially expanded
understanding of the same now includes several socio3economic
entitlements for citiens which place positive obligations on the state. 'hat
is interesting is that the reading in of these socio3economic entitlements by
5udges has often directly referred to the language of provisions contained in
the part dealing with directive principles. In this sense, 5udicial creativity has
transformed the substantive character of the protection of life and liberty.
Article 21 of the (onstitution of India reads as follows< L6o +erson shall
%e de+rived of his life or +ersonal li%erty e7ce+t according to +rocedure
esta%lished %y law2M *he interpretation of this article in the early years of the
Supreme (ourt was that #personal liberty$ could be curtailed as long as there
was a legal prescription for the same. In/2K2 1o+alan&scase,12the Supreme
(ourt 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 (ourt could not in%uire into the fairness of such a
measure. It was held that the words #procedure established by law$ were
12/2K2 1o+alanv. $tate of 8adras, AI 170 S( 2;
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different from the #substantive due process$ guarantee provided under the
18thamendment to the US (onstitution. It was also reasoned that the framers
of the Indian (onstitution consciously preferred the former expression over
the latter. *his narrow construction of Article 21 prevailed for several years
until it was changed in8ane#a 1andhi&scase.1:In that decision, it was held
that governmental restraints on #personal liberty$ should be collectively
tested against the guarantees of fairness, non3arbitrariness and
reasonableness that were prescribed under Articles 18, 17 and 21 of the
(onstitution. *he (ourt developed a theory of #inter3relationship 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 (ourts incorporated the guarantee of #substantive due process$ into the
language of Article 21.18*his 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 6art III. In the
words of ?ustice hagwati99
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+otably, over the decades, the Supreme (ourt has affirmed that both the
&undamental ights and irective 6rinciples must be interpreted
harmoniously. It was observed in theKesavananda 9haraticase,1> 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 ob5ectives which are also enumerated in
the 6reamble to the (onstitution. &urthermore, in UnniKrishnan) 2!2 v.
$tate of /ndhra !radesh,1;, ?ustice ?eevan eddy declared/17;: 8 S(( 221;/177: 1 S(( >8194lga Tellisv.9om%ay 8unici+al Cor+oration, AI 179 S( 190 /a 5ournalist had filed
a petition on behalf of hundreds of pavement3dwellers who were being displaced due toconstruction activity by the respondent corporation. *he (ourt recognised the #right to
livelihood and housing$ of the pavement3dwellers and issued an in5unction to halt their
eviction.17!armanand Katara v. Union of India, AI 1797 S( 20:7 /*he (ourt held that no
medical authority could refuse to provide immediate medical attention to a patient in
need in an emergency caseB *he public interest litigation had arisen because manyhospitals were refusing to admit patients in medico3legal cases.2082C2 8ehtav. Union of India, /177> 8 S(( ;0B In this 6ublic Interest Ditigation, the
Supreme (ourt ordered the relocation of haardous industries located near residential
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recogniing education as a 5usticiable right.21 *his decision prompted a
(onstitutional amendment which inserted Article 213A into the
(onstitutional text, thereby guaranteeing the right to elementary education
for children aged between >318 years. *he (ourts have also pointed to
irective principles in interpreting the prohibitions against forced labour and
child labour. *he 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 li"e to touch on three
issues, namely those of the proper understanding of #5udicial review$, the
transformation of the substantive character of 5usticiable rights and the
increasing importance of #comparative constitutional law$. 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
citiens. !ven the United Fingdom, which for long upheld the tradition of
#parliamentary sovereignty$ and relied on unwritten constitutional
conventions as the basis for the protection of the citiens$ liberties, has
become part of the !uropean (onvention on -uman ights /!(-. In
areas in +ew elhi. In the process, it spelt out the citiens$ #right to clean environment$which was in turn derived from the protection of life and liberty enumerated in Article
21.212!2 Unni#rishnanv. $tate of /ndhra !radesh, /177: 1 S(( >8
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sovereignty$. 'ith respect to the inherent value of a written constitution that
also incorporates #5udicial review$, it would be appropriate to reproduce a
%uotation by ?ustice Aahron ara", formerly of the Supreme (ourt of Israel /ecember 2001 at
p. ;>>3;91
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national flag if the same offended their religious beliefs.2;-e observed as
follows and Ra'a Ram !al:; cases3 have demonstrated that the Indian
Supreme (ourt is embar"ing on a new and expanded understanding of
#5udicial review$. *he Coelho case decided whether the Supreme (ourt
could review acts of 6arliament placed within the +inth Schedule, and the
Ra'a Ram !al case, passed 5udgment on whether 6arliament$s internal
procedures /in this case, expulsion of 4embers of 6arliament on account of
corruption charges were 5usticiable.
In the Coelho decision, the Supreme (ourt held that it could stri"e down
any law inserted into the +inth Schedule if it were contrary to (onstitutional
provisions. It was observedI2R2 Coelho 4thers, /200; 2 S(( 1Jhereinafter CoelhoK:;Ra'a Ram !alv.(on&%le $+ea#er) Lo# $a%ha > 4thers, /200; : S(( 198 Jhereinafter
Ra'a Ram !alK
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began by stating that the (onstitution was the Lsupreme le7in this countryM
and went on to state that8: /200;82&or a theoretical defence of bringing social3welfare oriented rights within the purview
of #5udicial review$, efer< 4ar" *ushnet, #Social 'elfare ights and the forms of?udicial eview$, 92 Te7as Law Review197 /20088:See< S.. urman, #Symbolic dimensions of the enforcement of law$,9ritish ournal of
Law and $ociety, @ol. :, +o. 2 /'inter 17;> at p. 208321;
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#religious freedom$ is "eenly contested in the legislative as well as 5udicial
domains, there is no doubt that constitutional rights have been an important
tool of social transformation in India. *he enumeration of the various civil
liberties and protections against arbitrary actions by the state are now
identified as core elements of citienship and violations provo"e a high
standard of scrutiny both by the 5udiciary as well as civil society groups. *he
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 (astes /S( and Scheduled *ribes /S*. !ven
though practices such as untouchability, forced labour and child labour have
not been totally eradicated, our constitutional provisions prohibiting the
same are the bedroc" behind legal as well as socio3political strategies to curb
the same. *he Supreme (ourt of India has further internalied 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 6ublic Interest Ditigation
/6ID cases has actually expanded the scope and efficacy of constitutional
rights by applying them in previously unenumerated settings. In recogniing
and enforcing rights for the wea"est sections in society, the activism of the
Indian 5udiciary has actually improved its own public standing.
+ncreasing importance of comparative constitutional la-:In addition to
the %uestions posed by the changing substantive character of 5usticiable
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 +ations system, many new (onstitutions incorporated
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mutually similar provisions by drawing upon international instruments such
as the U-, I((6 and I(!S( as well as the then long3established
constitutional systems such as those of the United States of America. *he
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.88'hile this transplantation of constitutional doctrines
was most evident in the case of newly liberated colonies, the Soviet3led bloc
followed a divergent path by prioritiing collective socio3economic
ob5ectives over basic individual rights. Since the 1770$s, the dismantling of
communist rule in the former USS and !astern !urope has prompted a new
wave of constitutionalism, with several countries adopting written
constitutions that provide for basic civil3political rights enforceable through
5udicial means. In recent years, the decisions of (onstitutional (ourts in
common law 5urisdictions such as South Africa, (anada, +ew Oealand and
India have become the primary catalyst behind the growing importance of
comparative constitutional law. In these 5urisdictions, reliance on foreign
precedents has become commonplace in public law litigation.8
*he absorption of foreign law into domestic legal systems ta"es place
through multiple means. *hese means can be classified under three broad
categories E assumption of treaty obligations, express legislative
88See generally< (lair D$-ereux3ube, #-uman ights< A worldwide dialogue$ in .+.
Firpal et. al. /eds., $u+reme %ut not Infalli%le *ssays in (onour of the $u+reme Courtof India/=U6, 2000 at p. 21832:18See generally< 4ar" *ushnet, #*he possibilities of (omparative (onstitutional Daw$,
109 Aale Law ournal 122 /1777B Su5it (haudhary, #)lobalisation in search of5ustification< *oward a theory of (omparative (onstitutional Interpretation$, ;8Indiana
Law ournal 917 /1777B 4artha +ussbaum, #Introduction to (omparative
(onstitutionalism$, : Chicago ournal of International Law827 /2002
:2
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incorporation and 5udicial invocation. 'hile 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 internaliing international norms.
-owever, there is some resistance against the 5udicial invocation of
international and comparative law. 'hile reference to evolving international
human rights norms and decisions of international ad5udicatory 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 5urisdictions. !specially in the United States, there has been a
prominent debate over the citation of foreign precedents between Supreme
(ourt ?ustices Stephen reyer and Antonin Scalia. ?ustice Scalia registered
his opposition to the citation of foreign precedents in his dissenting opinion
in Ro+er v2 $immons,8>where the ma5ority opinion delivered by ?ustice
reyer referred to several international instruments as well as foreign
decisions to rule against the constitutionality of administering the death
penalty to 5uveniles. In the said opinion the "right against cruel) inhuman
and degrading +unishment&enumerated in the 9th amendment of the U.S.
(onstitution was read expansively by way of reliance on foreign materials.
Since the delivery of that opinion, ?ustice Scalia$s viewpoint has found more
support with the appointment of ?ustice ?ohn oberts ?r. and ?ustice Samuel
Alito ?r. to the U.S. Supreme (ourt, who expressed their opposition to the
citation of foreign precedents during the Senate hearings for the
confirmation of their appointments.
8>12 S. (t. 119: /200, ?ustice Scalia$s dissenting opinion starts at p. 1227B &or an
academic opinion against the citation of foreign precedents, see Steven ). (alabresi andStephanie otson Oimdahl, #*he Supreme (ourt and foreign sources of law< *wo
hundred years of practice and the 5uvenile death penalty decision$, 8; William and 8ary
Law Review ;8: /ecember 200
::
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(hief ?ustice ?ohn oberts ?r. has put forward two arguments against
the practice of #trans5udicial communication$. According to him, since
foreign 5udges are not even remotely accountable to the electorate or any
public agency, reliance on their decisions amounts to an anti3democratic
exercise. *he second ob5ection is that if 5udges freely rely on foreign
precedents, then they tend to arbitrarily cite decisions favourable to their
personal viewpoints, often from 5urisdictions where the societal conditions
are entirely different from those in the United States. In such a scenario,
5udges would be free to indulge in #cherry3pic"ing$ for 5ustified their
decisions rather than engage in a rigorous in%uiry into domestic precedents.8;
*his criticism also draws from the idea of #exceptionalism$ or the uni%ue
status of the United States amongst the comity of nations. A rhetorical line
of reasoning is that the framers of the United States (onstitution aimed to
establish a polity which was a radical departure from the political
institutions of the #=ld 'orld$ and that the American system was meant to
lead the way for other countries and not vice versa.89*he partisan character
of the 5udicial appointment process has ensured that this issue draws a clear
wedge among the 5ustices of the U.S. Supreme (ourt.
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 (onstitutional Daw has been a source of inspiration and
8; (ited from< 4ar" (. ahdert, #(omparative (onstitutional Advocacy$, > /merican
University Law Review: /200;89Arguments based on the #exceptionalism #of American (onstitutional Daw have beenput forward in the following article< Steven ). (alabresi, #A shining city on a hill9oston University Law Review1:: /ecember 200>
:8
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Dester, ?ustice -aleem and ?ustice uth ader )insburg. *hat collo%uium
resulted in the declaration of the9angalore !rinci+leswhich deal with how
national courts should absorb international law to fill existing gaps in
domestic law.1Special emphasis was laid on the handling of unenumerated
norms so as to strengthen the #rule of law$ and constitutional governance.
espite immense opposition on their declaration, these principles have
gradually found wide acceptance with 5udges in many 5urisdictions loo"ing
towards the growing body of international human rights law to streamline
their domestic laws. *his also creates compelling reasons for constitutional
courts in different 5urisdictions to loo" to each other$s decisions. *he growth
of constitutionalism will be better served with less resistance to the
increasingly important discourse of comparative constitutional law. It is
through this framewor" of recogniing a growing international consensus on
the understanding of individual as well as group rights that 5udges in
constitutional courts can lead the way in advancing socio3political reforms in
their respective countries.
1 *he text of the principles has been reproduced in< 4ichael Firby, #omestic
Implementation of International human rights norms$, 1777 /ustralian ournal of(uman Rights2;B Also see E Dord Dester of -erne -ill, # *he challenge of angalore E
4a"ing human rights a practical reality$, :*uro+ean (uman Rights Law Review 2;:3