THE CONSTITUTIONAL GUARANTEES OF RIGHTS AND

POLITICAL FREEDOMS
Working paper submitted for the programme to mark the 40
th
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,-.0.
*his progression in international cooperation coincided with the era of
1
decoloni2ation, 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 internali2e the practice of
democracy while also guaranteeing a set of substantive rights to their
citi2ens. 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((6.0 and the International
(ovenant on !conomic, Social and (ultural .ights /I(!S(.0.
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 Austin
2
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
1
See ruce Ac"erman, #*he .ise of 'orld (onstitutionalism$, 9: Virginia Law Review
;;13;7; /177;0
2
See< )ranville Austin, The Indian Constitution: Cornerstone of a nation /=xford
University 6ress, 17>>0
2
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 /!(-.0. (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 citi2ens of the !uropean Union /!U0 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(?0 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 citi2ens 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 ,enationali2ation$,
Constellations, @ol. 12, +o. 8 /200A0 at p. 88;38>:B A related development has been the
emergence of U+ mandated tribunals following the conflicts in Cugoslavia, .wanda,
Sierra Deone and (ambodia E followed by the establishment of the International (riminal
(ourt /I((0 under the .ome Statute, with all these bodies being empowered to prosecute
individuals for the commission of grave crimes such as genocide and war crimes.
-owever, the evolution of International (riminal Daw does not have a direct interface
with domestic law unless a particular country specifically incorporates its obligations and
nature of involvement with an ad5udicatory institution.
:
(onstitution, it is also important to understand the motives of the
framers in incorporating the same. It also becomes necessary to refer
to 6art I@ of the (onstitution which deals with the non35usticiable
#directive principles of state policy$. *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$
8
acts as a catalyst for recogni2ing an
international consensus on the understanding of rights.
8
*he phrase #trans5udicial communication$ was coined by academic Anne34arie
Slaughter 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$, 27 University of Richmond Law Review 77 /17780
8
'ith regard to the protection and promotion of individual rights and
freedoms, the framers of the Indian (onstitution did indeed ta"e some
progressive steps for their time. *he inclusion of #fundamental rights$ of
citi2ens was the sub5ect of extensive discussions on the floor of the
(onstituent Assembly. It must be noted that the demands for a charter of
citi2ens$ 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 17
th
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 197A 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 mobili2ation 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.
A
Attempts to lobby for an inclusion of an express guarantee of rights were
renewed in anticipation of the )overnment of India Act, 17:A.
A
-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 citi2ens 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 citi2ens to approach the courts to
see" remedies against the violation of these rights. Article 1:/20 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.
A
&or a bac"ground on the demands for a bill of rights during the freedom struggle, see
S.6. Sathe, #?udicial Activism< *he Indian !xperience$, > Washington University ournal
of Law and !olicy 27310; /20010
>
*his position which preferred #legislative supremacy$ has been diluted in recent years,
with the United Fingdom becoming party to the !uropean (onvention on -uman .ights
/!(-.0. *he !(-. lays down 5usticiable rights and most of them have been
incorporated in the -uman .ights Act, 1779. *he implication of this is that citi2ens of the
United Fingdom can %uestion the legislative and executive acts of their own government
before a supranational tribunal /!uropean (ourt of -uman .ights located in Strasbourg0
on the ground of violation of the rights enshrined in the said (onvention. .
>
*he (onstitutional text also facilitated India$s transition into a
democratic republic. *he most important mar"er of a constitutional
democracy is the conduct of fair elections where all citi2ens can vote freely
in order to determine the composition of government. ,uring the latter
stages of colonial rule, periodic elections had been held for the composition
of the provincial assemblies and a (entral Degislature but the voting rights
were lin"ed to educational %ualifications and ownership of property, thereby
limiting the same to a miniscule part of the population. !ven in the
(onstituent Assembly, there was some support for the idea of #limited
franchise$ 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# $a%ha& /-ouse of the 6eople0
truly represents all of India$s diversity while the upper house i.e. the "Ra'ya
$a%ha& /(ouncil of States0 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 citi2ens. *he language of many of these rights
incorporated that of the Universal ,eclaration of -uman .ights /17890 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
;
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 citi2ens and the
government /i.e. #vertical application of rights$0 as well as between citi2ens
themselves /i.e. #hori2ontal application of rights$0. &urthermore, Indian
(ourts have interpreted these rights not only in a #negative$ dimension, i.e.
in terms of protection against violations of guaranteed rights by the state and
other citi2ens but also in a #positive$ dimension which places obligations on
the state to ensure the availability of socio3economic entitlements to citi2ens.

Article 18 of the (onstitution of India provides a guarantee of #e%ual
protection before the law$, Article 1A prohibits discrimination on the
grounds of religion, race, caste, class and gender E but at the same time
permits the State to ma"e special provision for the advancement of women
as well as #socially and educationally$ bac"ward sections of society. *he
language of Article 1A has been interpreted in the spirit of #substantive
e%uality$ which allows #differential treatment$ in order to address prevalent
social ine%ualities. -ence Article 1A forms the basis of policies such as
reservations to facilitate the entry of candidates belonging to historically
disadvantaged sections such as Scheduled (astes /S(0 and Scheduled *ribes
/S*0 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< 6armanand
Singh, #!%uality and (ompensatory ,iscrimination< *he Indian !xperience$ in (. .a5
Fumar G F. (hoc"alingam /eds.0, (uman Rights) ustice and Constitutional
*m+owerment /+ew ,elhi< =xford University 6ress, 200;0 at p. 12>31A2
9
caste3based #untouchability$ whereas Article 19 abolished titles /with the
exception of military and academic titles0. Articles 1; and 19 can be
enforced against private parties.
Article 17 safeguards the liberties of citi2ens 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$s restrictions on the functioning of
newspapers, the organisation of political rallies and the mobili2ation of trade
unions. *he protection of these liberties was synonymous with the ethos of
the freedom struggle in the subcontinent. *he right to livelihood which
primarily has socio3economic implications has been guaranteed in the form
of the citi2ens$ 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
7
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$. *he scope
of the protection under Article 21 has been progressively expanded by the
Supreme (ourt of India and in a later segment of this paper I will refer to
some cases wherein the same has been done. Article 22 protects citi2ens
against unlawful detention and also provides safeguards in instances of
#preventive detention$ 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
#hori2ontally$ 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 ha2ardous employment. *hese rights have been the sub5ect of
some prominent decisions given by our Supreme (ourt in 6ublic Interest
Ditigation /6ID0 cases.
Articles 2A3:0 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 2A 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
10
#religious$ and #secular$ activities associated with religious identity. In
several cases, the (ourts 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.
9


Article 2; prohibits the accumulation and use of public finances in order
to support religious activities. (ontinuing with the ob5ective of creating a
separation between state and religion, Article 29 prohibits religious
instruction in government3run educational institutions. Articles 27 deals with
the rights of religious and linguistic minorities to preserve their culture and
language, while Article :0 recognises the freedom of religious minorities to
establish and administer educational institutions, free from state interference.
*his entails that in addition to the assurance of administrative autonomy, the
minority3run 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.
*he power of the higher 5udiciary to enforce these fundamental rights is
derived from Article :2 of the (onstitution. It gives citi2ens the right to
approach the Supreme (ourt in order to see" a remedy against the violation
of fundamental rights. *his #right to constitutional remedy$ is itself a
fundamental right and can be enforced in the forms of writs evolved in
common law E such as ha%eas cor+us /to direct the release of a person
9
See< .a5eev ,havan and &ali S. +ariman, #*he Supreme (ourt and )roup Dife<
.eligious &reedom, 4inority )roups and ,isadvantaged (ommunities$ in .+. Firpal et.
al. /eds.0, $u+reme %ut not Infalli%le: *ssays in (onour of the $u+reme Court of India
/+ew ,elhi< =xford University 6ress, 20000 at p. 2A>329;
11
detained unlawfully0, mandamus /to direct a public authority to do its duty0,
,uo warranto /to direct a person to vacate an office assumed wrongfully0,
+rohi%ition /to prohibit a lower court from proceeding on a case0 and
certiorari /power of the higher court to remove a proceeding from a lower
court and bring it before itself0. esides the Supreme (ourt, the -igh (ourts
located in the various States are also designated as constitutional courts and
Article 22> permits citi2ens to file similar writs before the -igh (ourts.
!vidently, the -igher ?udiciary in India /consisting of the Supreme (ourt
and the various -igh (ourts0 performs the "ey tas" of protecting and
interpreting the fundamental rights under their writ 5urisdiction. 'ith the
advent of 6ublic Interest Ditigation /6ID0 in recent decades, Article :2 has
been creatively read to shape innovative remedies such as a #continuing
mandamus$ for ensuring that executive agencies comply with 5udicial
directions. In this category of litigation, 5udges have also imported private
law remedies such as #in5unctions$ and #stay orders$ into what are essentially
public law3related matters.
7


'hile the fundamental rights of citi2ens enumerated in 6art III of the
(onstitution are 5usticiable before the higher 5udiciary, 6art I@ deals with
the #,irective 6rinciples of State 6olicy$ that largely enumerate ob5ectives
pertaining to socio3economic entitlements.
10
*he ,irective 6rinciples aim at
creating an egalitarian society whose citi2ens are free from the ab5ect
7
See< Asho" -. ,esai and S. 4uralidhar, 6ublic Interest Ditigation< 6otential and
6roblems$ in .+. Firpal et. al. /eds.0, $u+reme %ut not Infalli%le - *ssays in (onour of
the $u+reme Court of India /=U6, 20000 at p. 1A73172B Also see F.). ala"rishnan,
#)rowth of 6ublic Interest Ditigation in India$, .ifteenth /nnual Lecture) $inga+ore
/cademy of Law /=ctober 9, 20090, *ext available from Hwww.sal.orgI
10
*he framers included #,irective 6rinciples of State 6olicy$ following the example of
the Irish (onstitution.
12
physical conditions that had hitherto prevented them from fulfilling their
best selves. *hey are the creative part of the (onstitution, and fundamental
to the governance of the country. -owever, the "ey feature is that the
,irective 6rinciples are #non35usticiable$ 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 (onstitution, some of the provisions which are presently
part of the ,irective 6rinciples were part of the declaration of fundamental
rights adopted by the (ongress party. F.4. 4unshi /a noted lawyer and a
member of the (onstituent Assembly0 had even included in his draft list of
rights, the #rights of wor"ers$ and #social rights$, which included provisions
protecting women and children and guaranteeing the right to wor", a decent
wage, and a decent standard of living.
11
Subse%uently, the ob5ective of
ensuring these entitlements was included in the ,irective 6rinciples. *he
primordial importance of these principles can be understood by the
following words of ,r. .. Ambed"ar, when he insisted on the use of the
word #strive$ in the language of Article :9 which mentions the governmental
ob5ective of an e%uitable distribution of material resources<
0We have used it %ecause it is our intention that even when there are
circumstances which +revent the 1overnment) or which stand in the way of
the 1overnment giving effect to these directive +rinci+les) they shall) even
under hard and un+ro+itious circumstances) always strive in the fulfillment
of these directives2 3 4therwise it would %e o+en for any 1overnment to
say that the circumstances are so %ad) that the finances are so inade,uate
that we cannot even ma#e an effort in the direction in which the Constitution
11
At the same time, even some controversial as well as communally sensitive issues such
as the desirability of enacting a Uniform (ivil (ode /Article 880 and the prohibition of
cow3slaughter /Article 890 came to be included in the non35usticiable ,irective
6rinciples.
1:
as#s us to go25 J(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 citi2ens 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&s case,
12
the 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 ordinance0 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+alan v. $tate of 8adras, AI. 17A0 S( 2;
18
different from the #substantive due process$ guarantee provided under the
18
th
amendment 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 in 8ane#a 1andhi&s case.
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 hagwati<
1A

0we thin# that the right to life includes the right to live with human
dignity and all that goes along with it) namely the %are necessities of life
such as ade,uate nutrition) clothing and shelter over the head and facilities
for reading) writing and e7+ressing oneself in diverse forms25
4oreover, through innovative and creative strategies, the (ourts have
expanded the scope of the &undamental .ights, in order to render 5ustice to
women, children, bonded laborers and other oppressed sections of society.
1:
8ane#a 1andhi v. Union of India, AI. 17;9 S( A7;
18
See< *... Andhyaru5ina, #*he !volution of ,ue 6rocess of Daw by the Supreme (ourt$
in .+. Firpal et. al. /eds.0, $u+reme 9ut 6ot Infalli%le - *ssays in (onour of the
$u+reme Court of India /=U6, 20000 at p. 17:321:
1A
=bservations in .rancis Coralie v. Union Territory of Delhi) /17910 1 S(( >99
1A
+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 the Kesavananda 9harati case,
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 Unni Krishnan) 2!2 v.
$tate of /ndhra !radesh,
1;
, ?ustice ?eevan .eddy declared<
0The +rovisions of !arts III and IV are su++lementary and
com+lementary to each other and not e7clusionary of each other and that
the fundamental rights are %ut a means to achieve the goal indicated in !art
IV52
*his approach of harmoni2ing the fundamental rights and directive
principles has been successful to a considerable extent. As indicated earlier,
the Supreme (ourt has interpreted the #protection of life and personal
liberty$ as one which contemplates socio3economic entitlements such as the
#right to livelihood and housing$,
19
the #right to health$
17
and the #right to a
clean environment$
20
among others. *he court has gone to the extent of
1>
/17;:0 8 S(( 22A
1;
/177:0 1 S(( >8A
19
4lga Tellis v. 9om%ay 8unici+al Cor+oration, AI. 179A S( 190 /a 5ournalist had filed
a petition on behalf of hundreds of pavement3dwellers who were being displaced due to
construction 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.0
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 many
hospitals were refusing to admit patients in medico3legal cases.0
20
82C2 8ehta v. Union of India, /177>0 8 S(( ;A0B In this 6ublic Interest Ditigation, the
Supreme (ourt ordered the relocation of ha2ardous industries located near residential
1>
recogni2ing 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
citi2ens. !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 citi2ens$ liberties, has
become part of the !uropean (onvention on -uman .ights /!(-.0. In
areas in +ew ,elhi. In the process, it spelt out the citi2ens$ #right to clean environment$
which was in turn derived from the protection of life and liberty enumerated in Article
21.
21
2!2 Unni#rishnan v. $tate of /ndhra !radesh, /177:0 1 S(( >8A
1;
doing so it has for all practical purposes accepted the philosophy of #5udicial
review$, notwithstanding that the same is exercised by a supranational
tribunal.
22
*he doctrine of #5udicial review$ which originated in an early
5udgment of the U.S. Supreme (ourt in 8ar%ury v. 8adison,
2:
was not only
adopted by several newly independent nations in the decoloni2ation3era but
has also been incorporated through constitutional reforms that have ta"en
place in countries such as (anada and South Africa in recent decades.
,he importance of .0udicial revie-/' In India, the inclusion of
#5udicial review$ was a necessary device to give teeth to the fundamental
rights. ,r. ... Ambed"ar described the provision enabling the same as the
#heart of the (onstitution$. -owever, across several 5urisdictions %uestions
have been as"ed about the proper understanding of this doctrine. *here are
two principled ob5ections offered against the very idea of #5udicial review$ in
a democratic order. *he first idea is that the 5udiciary being an unelected
body is not accountable to the people through any institutional mechanism.
In most countries 5udges are appointed through methods involving selection
or nomination, in which ordinary citi2ens do not have a say. It is argued that
allowing the 5udiciary 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$. *his criti%ue locates the role of the 5udiciary as
purely one of resolving disputes between parties and deferring to the
prescriptions of the elected legislature while doing so. In the (ommon Daw
realm, this criti%ue is based on the age3old notion of #parliamentary
22
As mentioned earlier, individual citi2ens of countries which are party to the !uropean
(onvention on -uman .ights /!(-.0 can %uestion the actions of their respective
governments on the ground of violation of the rights enumerated in the said (onvention.
2:
8ar%ury v. 8adison, A U.S. 1:; /190:0
19
sovereignty$. 'ith respect to the inherent value of a written constitution that
also incorporates #5udicial review$, it would be appropriate to reproduce a
%uotation by ?ustice Aahron ara", formerly of the Supreme (ourt of Israel<
0To maintain real democracy and to ensure a delicate %alance %etween
its elements :a formal constitution is +refera%le2 To o+erate effectively) a
constitution should en'oy normative su+remacy) should not %e as easily
amenda%le as a normal statute) and should give 'udges the +ower to review
the constitutionality of legislation2 Without a formal constitution) there is no
legal limitation on legislative su+remacy) and the su+remacy of human
rights can e7ist only %y the grace of the ma'ority&s self:restraint2 /
constitution) however) im+oses legal limitations on the legislature and
guarantees that human rights are +rotected not only %y the self:restraint of
the ma'ority) %ut also %y constitutional control over the ma'ority2 (ence) the
need for a formal constitution25
28
-owever, we must also consider another nuanced ob5ection to the
doctrine of #5udicial review$. 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. -owever, it is not necessary that the intent of the framers
corresponds to the will of the ma5ority of the population at the time. In the
Indian setting, it is often argued that the members of the (onstituent
Assembly were overwhelmingly drawn from elite bac"grounds and hence
did not represent popular opinions on several vital issues. &urthermore, the
adoption of a constitution entails a country$s precommitment to its contents
28
(ited from< Aharon ara", #A 5udge on 5udging< *he role of a Supreme (ourt in
,emocracy, 11> (arvard Law Review 1> /20020
17
and the same become binding on future generations.
2A
(learly the
understanding and application of constitutional principles cannot remain
static and hence a constitutional text also lays down a procedure for its
amendment. -owever, this power of amendment by the legislature is not
unlimited and the idea of #5udicial review$ designates the higher 5udiciary as
the protector of the constitution. *his scheme wor"s smoothly as long as the
demands and aspirations of the ma5ority of the population correspond with
the constitutional prescriptions. -owever, a cause for dissonance between
the wings of government arises when ma5oritarian policy3choices
internali2ed in legislative or executive acts tend to infringe on constitutional
provisions. In discharging its$ role as the protector of the (onstitution, the
5udiciary is then re%uired to scrutini2e the actions of its co3e%ual branches of
government. Some scholars have argued that fact3situations of this type
involve tensions between the understanding of the words #constitutionalism$
and #democracy$ respectively. -ence, it is postulated that the provision for
#5udicial review$ gives a self3contradictory twist to the expression
#constitutional democracy$.
2>

In this regard the role of the 5udiciary can be described as one of
protecting the counterma5oritarian safeguards enumerated in the
(onstitution. It is apt to refer to an opinion given by ?ustice .obert ?ac"son
where it was held that citi2ens could not be compelled to salute the U.S.
2A
See< Stephen -olmes, #6recommitment and the 6aradox of ,emocracy$ in ,ouglas
)reenberg et. al. /eds.0, Constitutionalism and Democracy: Transitions in the
Contem+orary World /=xford University 6ress, 177:0 at p. 17A3280
2>
.efer< ?urgen -abermas and 'illiam .ehg, #(onstitutional democracy< A paradoxical
union of contradictory principlesN$, !olitical Theory, @ol. 27, +o. > /,ecember 20010 at
p. ;>>3;91
20
national flag if the same offended their religious beliefs.
2;
-e observed as
follows<
"The very +ur+ose of the %ill of rights was to withdraw certain
su%'ects from the vicissitudes of +olitical controversy) to +lace them %eyond
the reach of ma'orities and officials and to esta%lish them as legal +rinci+les
to %e a++lied %y the Courts2 4ne&s right to life) li%erty) and +ro+erty) to free
s+eech) a free +ress) freedom of worshi+ and assem%ly) and other
fundamental rights may not %e su%mitted to vote: they de+end on the
outcome of no elections2&
&or example, in India there is considerable disenchantment with the
constitutional provision which places the personal laws of religious groups
beyond the scope of constitutional scrutiny. *he framers preferred this
position in order to protect the usages and customs of religious minorities in
con5unction with the guarantee of #freedom of religion$ under the
(onstitution. -owever, there have been persistent ma5oritarian demands for
a (onstitutional amendment of this position so as to enact a #Uniform (ivil
(ode$ for regulating the private relations of citi2ens belonging to all
religions. *hese demands clearly have connotations of imposition by the
ma5ority and are fiercely contested by those belonging to the religious
minorities. +oted scholar Samuel Isacharoff has argued that in fractured or
pluralist societies it is beneficial to implement a constitutional scheme so as
to restrain destructive ma5oritarian tendencies.
29

2;
West Virginia $tate 9oard of *ducation v. 9arnette, :17 US >28 /178:0
29
See< Samuel Isacharoff, #(onstitutionalising ,emocracy in fractured societies$, 92
Te7as Law Review 19>131971 /20080B In this article he has stressed on the importance of
constitutionalism for ensuring stability in post3apartheid South Africa as well as osnia
after the conflict which accompanied the brea"3up of Cugoslavia.
21
(oming bac" to the role of the 5udiciary, I would li"e to recount some
examples from the Indian (onstitutional experience in order to reflect on the
so3called tensions between constitutionalism and democracy. *he most
prominent challenge to the scope of #5udicial 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 ine%uality in the patterns of
land3ownership in pre3independence India, much of it corresponding to
caste3divisions. 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.
!laborate institutions of landed intermediaries /such as the ;amindari
system0 had become entrenched while cultivators from the lower castes
either had very small landholdings or were forced to wor" as bonded labour
under the control of these ;amindars. After independence, the Union
6arliament as well as the state legislatures sought to tac"le this
institutionali2ed ine%uality by urgently pursuing a policy of agrarian land
reforms, which often overloo"ed %uestions such as the payment of ade%uate
compensation to the landowners whose property was ac%uired for public
purposes as well as for re3distribution among smaller cultivators. Such
governmental excesses prompted the land3owning classes to repeatedly
approach the (ourts to protect their #right to ac%uire, hold and dispose of
property$ which had been enumerated in Article 17/10/f0 of the (onstitution.
'hile the higher 5udiciary repeatedly defended the rights of landowners
against ac%uisition by the State, the 6arliament responded with legislative
changes as well as (onstitutional amendments to address the same. In fact,
legislations pertaining to agrarian land reforms were placed in the +inth
22
Schedule to the (onstitution,
27
a part which was immunised from scrutiny by
the (ourts, and thus formed an exception to the power of #5udicial review$
provided under Article 1:. -owever, the Supreme (ourt repeatedly upheld
challenges against these legislations which %uestioned the procedural
fairness of land ac%uisition.
:0

Since the Union 6arliament was dominated by the ruling (ongress 6arty
till the mid317>0$s, it virtually became a tussle between the !xecutive and
the ?udiciary. 4atters came to a head in the 1ola#nath case,
:1
where the
Supreme (ourt ruled by a narrow ma5ority />3A0 that the power of the
parliament to amend the constitution was limited, and that the (ourts were
within their power to in%uire into such amendments. *he 6arliament
responded with a (onstitutional amendment that extended its own power to
amend any part of the (onstitution by means of the process prescribed under
Article :>9. *his amendment in turn was %uestioned in the much3cited
Keshavananda 9harati case,
:2
where the Supreme (ourt laid down the
doctrine of the inviolable #asic structure$ of the (onstitution which limits
the amending power of the parliament. A narrow ma5ority of the 5udges /;3>0
in this case ruled that certain features of the (onstitution were integral to its
existence and could not be altered by way of amendments by the legislature.
*hey also defended the power of the 5udiciary to in%uire into legislative
27
*he #+inth Schedule$ was inserted into the (onstitution in 17A1, originally to shield
agrarian land reform laws from 5udicial scrutiny. -owever, this scheme, which originally
comprised of thirteen legislations in 17A1, had mushroomed to include 298 laws by 200>,
many unrelated to land reform or ending feudalism. It has thus been the sub5ect of
fre%uent criticism since it curtails the power of #5udicial review$.
:0
See generally< S.6. Sathe, #?udicial Activism< *he Indian !xperience$, > Washington
University ournal of Law and !olicy 27310; /20010
:1
1ola#nath v. $tate of !un'a%, AI. 17>; S( 1>8:
:2
Keshavananda 9harati v. $tate of Kerala, /17;:0 8 S(( 22A
2:
actions for safeguarding this #asic Structure$. -owever, there was some
inconsistency in identifying all the provisions that constituted this #asic
structure$. 'hile later decisions
::
identified basic features such as
democracy, secularism, federalism, 5udicial independence as well as
protection of life and liberty among others, many commentators have drawn
attention to the #open3textured$ nature of this doctrine.
:8
In recent years some
political formulations E especially the Deft3wing parties have publicly
argued that 5udges 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 see"ing to expand the
policy of reservations for disadvantaged sections or land ac%uisition for
developmental purposes. ,espite these misgivings, the coining of the #asic
Structure$ doctrine in the Keshavananda 9harati decision holds immense
significance in our constitutional history since it re3asserted the
independence of the 5udiciary, especially during a period of excessive
interference by the executive.
:A

In recent years, two cases involving the power of the courts to review
6arliament$s legislative and non3legislative functions3 i.e. the opinions in the
::
See the 5udgment in 8inerva 8ills v. Union of India, AI. 1790 S( 1;97
:8
See< .a5u .amachandran, #*he Supreme (ourt and the asic Structure ,octrine$ in
.+. Firpal et. al. /eds.0, $u+reme %ut not Infalli%le : *ssays in (onour of the $u+reme
Court of India /=U6, 20000 at p. 10;31::B It should be mentioned here that by way of the
88
th
amendment in 17;9, the #right to property$ was subse%uently removed from 6art III
of the (onstitution /which deals with the fundamental rights0 and given the status of an
ordinary legal right under Article :00A.
:A
In the early 17;0$s appointments to the higher 5udiciary were controlled by the
executive and three of the 5udges who ruled for the #basic structure$ doctrine were
subse%uently superceded in the matter of appointment to the position of the (hief ?ustice
of India in 17;:. See< )ranville Austin, #*he Supreme (ourt and the struggle for custody
of the (onstitution$ in .+. Firpal et. al. /eds.0, $u+reme %ut not Infalli%le : *ssays in
(onour of the $u+reme Court of India /=U6, 20000 at p. 131A
28
Coelho
:>
and Ra'a Ram !al
:;
cases3 have demonstrated that the Indian
Supreme (ourt is embar"ing on a new and expanded understanding of
#5udicial review$. *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 charges0 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 observed<
The 'uris+rudence and develo+ment around fundamental rights has made
it clear that they are not limited) narrow rights %ut +rovide a %road chec#
against the violations or e7cesses %y the $tate authorities2 The fundamental
rights have in fact +roved to %e the most significant constitutional control on
the 1overnment) +articularly legislative +ower2
It also stated that, 0It cannot %e said that the same Constitution that
+rovides for a chec# on legislative +ower) will decide whether such a chec#
is necessary or not2 It would %e a negation of the Constitution25
In the Ra'a Ram !al case, the Supreme (ourt disposed of the arguments
regarding the unconstitutionality of the expulsion of 4embers of 6arliament
while simultaneously upholding the principles of 5udicial review. *he court
:>
I2R2 Coelho <Dead= 9y Lrs v2 $tate of Tamil 6adu > 4thers, /200;0 2 S(( 1
Jhereinafter CoelhoK
:;
Ra'a Ram !al v. (on&%le $+ea#er) Lo# $a%ha > 4thers, /200;0 : S(( 198 Jhereinafter
Ra'a Ram !alK
2A
began by stating that the (onstitution was the Lsupreme le7 in this countryM
and went on to state that<
0!arliament is a coordinate organ and its views do deserve deference
even while its acts are amena%le to 'udicial scrutiny 222 mere co:ordinate
constitutional status 222 does not disentitle this Court from e7ercising its
'urisdiction of 'udicial review52
*he court also ac"nowledged that although it may not %uestion the truth
or correctness of the material 222 ?nor@ su%stitute its o+inion for that of the
legislature, proceedings of 6arliament which may %e tainted on account of
su%stantive or gross illegality or unconstitutionality could still be reviewed
by the 5udiciary. *hese two decisions reassert the (onstitutional scheme of a
balance of power between the legislative and 5udicial branches, and also
ensure that legislators will now no longer be able to evade the scrutiny of a
watchful 5udiciary.
:9

,he transformation in the character of 0usticiable rights' It can be
postulated that the doctrine of #5udicial review$ helps in binding a polity to
its core constitutional principles. In the post 'orld 'ar II era, the memory
of devastating conflicts and oppressive colonialism ensured that these
principles were initially centered on the protection of basic civil3political
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 extra35udicial "illings. *he growth of
(onstitutionalism has also been synonymous with that of liberal values
:9
See generally< 4artin -. .edish, #6olitical (onsensus, (onstitutional formulae, and the
rationale for ?udicial .eview$, 99 8ichigan Law Review 1:80 /17700
2>
which privilege an individual$s dignity as well as collective welfare. In
highly disparate and ini%uitous societies, such a commitment also re%uires
some counterma5oritarian safeguards. ,epending on the social profile of a
country$s population, these safeguards may be of the nature of those
guaranteeing the rights of ethnic, religious and cultural minorities as well as
measures for the advancement of historically disadvantaged communities
and poorer sections of society. Such safeguards which are meant to tac"le
social differences based on factors such as religion, caste, gender, class and
region among others, also have clear socio3economic dimensions. -ence, the
role of the (ourts in protecting constitutional values goes beyond the
enforcement of clearly defined civil3political rights applicable to individual
citi2ens and extends towards an engagement with the continuously evolving
understanding of #group rights$ which necessarily have socio3economic
dimensions.
*o appreciate the transformation in the substantive nature of 5usticiable
rights, it is necessary to reiterate the theoretical distinction between their
#negative$ and #positive$ dimensions.
:7
*he 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$. *he
language of a substantive right usually indicates whether it is directed
against state agencies, private actors or both. &or instance in the Indian
(onstitution, civil3political rights such as #freedom of speech, assembly and
association$ are directed against the State, since the text expressly refers to
the State$s power to impose reasonable restrictions on the exercise of the
:7
*he distinction between the notions of #negative$ and #positive$ rights in legal theory
was first prominently discussed by 'esley +ewcomb -ohfeld.
2;
same. *his implies that under ordinary conditions the State has an obligation
not to infringe on these liberties. *his #duty of restraint$ forms the basis of
rights with a #negative$ dimension. -ence 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 citi2ens. -owever, in
contrast to these 5usticiable #negative$ rights the directive principles of state
policy allude to several socio3economic ob5ectives which had a #positive$
dimension. !ven though the directive principles are non35usticiable, there
language is couched in the terms of positive obligations on governmental
agencies to enable their fulfillment.
80

As mentioned earlier, the Indian (ourts have responded to this hierarchy
between #negative$ and #positive$ rights by trying to collapse the distinction
between the same. *he inclusion of the #substantive due process$ guarantee
in the 8ane#a 1andhi decision was the precursor to the 5udicial adoption of
the approach of #harmonious construction$ between the fundamental rights
and the directive principles. *he focal point of this approach has been the
interpretation of the protection against deprivation of life and liberty in
Article 21. *he understanding of this protection has been radically
transformed to include a wide range of socio3economic entitlements such as
housing, shelter, education and environmental protection. 4uch of this
constructive reading has relied on the egalitarian orientation of the directive
principles and in the case of the #right to education$, an express provision.
*he advancement of #5udicial activism$ through this means has of course
80
See generally< (hapters :,8 and 9 in Sandra &redman, (uman rights transformed -
+ositive rights and +ositive duties /+ew ,elhi< =xford University 6ress, 20090
29
raised the popular profile of the higher 5udiciary in India. -owever, doubts
are perpetually raised about the expansion of the scope of 5usticiability.
Arguments are routinely made against the accommodation of #aspirational$
directive principles within the ambit of 5udicial enforcement.
*here are two conceptual ob5ections against extending constitutional
5usticiability to these positive obligations. *he first is that if 5udges 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$s tas" and that the 5udiciary
should refrain from the same. &urthermore, it is posed that executive
agencies are unfairly burdened by the costs associated with these positive
obligations, especially "eeping in mind that these obligations were
enumerated as directive principles by the framers on account of practical
considerations. *his criticism mirrors the familiar philosophy of #5udicial
restraint$ when it comes to constitutional ad5udication. -owever, the second
ob5ection to the reading in of positive obligations raises some scope for
introspection amongst 5udges. It can be argued that the expansion of
5usticiability to include rights that are difficult to enforce ta"es away from
the credibility of the 5udiciary in the long3run. *he 5udicial inclusion of
socio3economic ob5ectives as fundamental rights can be criticised as an
exercise merely on paper, which may have no bearing on ground3level
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 5udiciary.
81

81
*he following article encapsulates the arguments offered against the constitutional
prescription of aspirational rights, such as directive principles< ?effrey Usman, #+on3
5usticiable ,irective 6rinciples< A constitutional design defect$, 1A 8ichigan $tate
27
*he prescription of normative rights always carries the ris" of poor
enforcement. -owever, the %uestion we must as" ourselves is whether poor
enforcement is a sufficient reason to abandon the pursuit of rights whose
fulfillment enhances social and economic welfare. At this point, one can
recount .oscoe 6ound$s thesis on law as an agent of social change. *he
express inclusion of legal rights is an effective strategy to counter3act social
problems in the long3run. At the level of constitutional protection, such
rights have an inherent symbolic value which goes beyond empirical
considerations about their actual enforcement.
82
*he colonial regime in the
Indian subcontinent periodically made legislative interventions to discourage
retrograde and exploitative social practices such as Sati /immolation of
widows0, prohibition of widow3remarriage and child marriage. !ven 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 un5ust 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.
8:
In the same way the framers of our (onstitution sought to depart from
the ine%uities of the past by enumerating a whole spectrum of rights and
entitlements. 'hile the understanding of ideas such as #social e%uality$ and
ournal of International Law >8: /200;0
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 Review 197A /20080
8:
See< S.. urman, #Symbolic dimensions of the enforcement of law$, 9ritish ournal of
Law and $ociety, @ol. :, +o. 2 /'inter 17;>0 at p. 208321;
:0
#religious freedom$ 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 citi2enship 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(0 and Scheduled *ribes /S*0. !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 internali2ed 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
/6ID0 cases has actually expanded the scope and efficacy of constitutional
rights by applying them in previously unenumerated settings. In recogni2ing
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
:1
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 prioriti2ing 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.
8A

*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
88
See generally< (lair D$-ereux3,ube, #-uman .ights< A worldwide dialogue$ in .+.
Firpal et. al. /eds.0, $u+reme %ut not Infalli%le: *ssays in (onour of the $u+reme Court
of India /=U6, 20000 at p. 21832:1
8A
See generally< 4ar" *ushnet, #*he possibilities of (omparative (onstitutional Daw$,
109 Aale Law ournal 122A /17770B Su5it (haudhary, #)lobalisation in search of
5ustification< *oward a theory of (omparative (onstitutional Interpretation$, ;8 Indiana
Law ournal 917 /17770B 4artha +ussbaum, #Introduction to (omparative
(onstitutionalism$, : Chicago ournal of International Law 827 /20020
:2
incorporation and 5udicial invocation. 'hile a country$s assumption of
obligations under international instruments /treaties, conventions0 is largely
in the domain of executive functions, legislative incorporation is also
considered a democratic means of internali2ing 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 $immons,
8>
where the ma5ority opinion delivered by ?ustice
reyer referred to several international instruments as well as foreign
decisions to rule against the constitutionality of administering the death
penalty to 5uveniles. In the said opinion the "right against cruel) inhuman
and degrading +unishment& enumerated in the 9
th
amendment of the U.S.
(onstitution was read expansively by way of reliance on foreign materials.
Since the delivery of that opinion, ?ustice Scalia$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>
12A S. (t. 119: /200A0, ?ustice Scalia$s dissenting opinion starts at p. 1227B &or an
academic opinion against the citation of foreign precedents, see Steven ). (alabresi and
Stephanie ,otson Oimdahl, #*he Supreme (ourt and foreign sources of law< *wo
hundred years of practice and the 5uvenile death penalty decision$, 8; William and 8ary
Law Review ;8: /,ecember 200A0
::
(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$, A> /merican
University Law Review AA: /200;0
89
Arguments based on the #exceptionalism #of American (onstitutional Daw have been
put forward in the following article< Steven ). (alabresi, #A shining city on a hill<
American !xceptionalism and the Supreme (ourt$s practice of relying on foreign law$,
9> 9oston University Law Review 1::A /,ecember 200>0
:8
doctrinal borrowing for many liberal constitutional systems that were created
after it. ?udges in India routinely cite precedents from U.S. (ourts besides
other foreign 5urisdictions and international law.
87
It is obvious that the mere
citation of a foreign decision does not imply that a domestic court is bound
by the former. A domestic court$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
socio3political conditions prevailing in different 5urisdictions 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
tac"ling them. 'ith the ever3expanding 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 cross3
border investment disputes among others, there is a concomitant trend
towards convergence in the domestic constitutional law of different
countries. In this era of globali2ation of legal standards, there is no reason to
suppress the 5udicial dialogue between different legal systems.
A0


In &ebruary 1799, the first (ommonwealth 5udicial collo%uium held in
angalore was attended by several eminent 5udges from different countries E
among them being ?ustice 6.+. hagwati, ?ustice 4ichael Firby, Dord
87
See< Adam 4. Smith, #4a"ing itself at home< Understanding foreign law in domestic
5urisprudence E *he Indian case$, 28 9er#eley ournal of International Law 219 /200>0B
Also see Arun *hiruvengadam, #*he )lobal ,ialogue among (ourts< Social .ights
?urisprudence of the Supreme (ourt of India from a comparative perspective$ in (. .a5
Fumar G F. (hoc"alingam/eds.0, (uman Rights) ustice and Constitutional
*m+owerment /=U6, 200;0 at p. 2>83:07
A0
See< @ic"i ?ac"son, #(onstitutions as #Diving *rees$N (omparative (onstitutional Daw
and interpretive metaphors$, ;A .ordham Law Review 721 /+ovember 200>0
:A
Dester, ?ustice -aleem and ?ustice .uth ader )insburg. *hat collo%uium
resulted in the declaration of the 9angalore !rinci+les which deal with how
national courts should absorb international law to fill existing gaps in
domestic law.
A1
Special 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$s decisions. *he growth
of constitutionalism will be better served with less resistance to the
increasingly important discourse of comparative constitutional law. It is
through this framewor" of recogni2ing a growing international consensus on
the understanding of individual as well as group rights that 5udges in
constitutional courts can lead the way in advancing socio3political reforms in
their respective countries.
A1
*he text of the principles has been reproduced in< 4ichael Firby, #,omestic
Implementation of International human rights norms$, 1777 /ustralian ournal of
(uman Rights 2;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
272 /17770
:>