Talk Held On Comparative Constitutional Contexts Of India & Australia

Project Constitutionalism, a not-for-profit organization working to increase constitutional awareness in India, protect constitutional rights and to strengthen constitutional governance, held its first event on Friday, the 24th of January, at the Australian High Commission. Conducted in conjunction with ANZIBA (Australia-New Zealand-India Business Association) and the Australian High Commission, the event focused on "A Comparative Look at the Constitutional Contexts of India and Australia" in honor of both Republic Day and Australia Day. Speakers present at the event included Mr. Shyam Divan, Senior Advocate at the Supreme Court of India, Prof. Shaun Star, Associate Dean and Executive Director of the Centre for India-Australia studies at Jindal Global University, and Ms. Malavika Prasad, Advocate and Doctoral Fellow at NALSAR, Hyderabad. The event commenced with opening remarks by Mr. Vikram Gera, director ANZIBA, who emphasized the shared values of free press, pluralism and governance structures between India and Australia. This was followed by a statement from Mr. Abishek Jebaraj, founding Trustee of Project Constitutionalism, who provided an insight into the objectives of the organization. INTRODUCTORY REMARKS ELUCIDATING DIFFERENCES AND SIMILARITIES With Ms. Prasad as the moderator, the talk began with Prof. Star referring to statements made by Justice Michael Kirby on the lack of awareness both the countries have regarding the legal systems of the other country, despite the existence of common Common Law roots. It is interesting to note at this juncture that, as per a joint study conducted by Indian and Australian professors, out of the total citations of Indian judgements made by Judges of the Australian High Court, 64% of it can be attributed to Justice Kirby. Prof. Star referred to the similarities between the two legal systems as a consequence of British colonialism: British common law; English as the language used in courts; federal systems; written constitutions; Parliamentary democracy; emphasis on rule of law; tradition of precedents. While Australia's short Constitution came about in the year 1901, India's much longer Constitution came about 50 years later and possessed the opportunity to build upon jurisprudential developments. The similarities and the bond between the two countries did not end there. Prof. Star remarked that four Indians had been bestowed the highest civilian honour of Australia i.e. Order of Australia: Mother Teresa, lawyer Soli Sorabjee, cricketer Sachin Tendulkar, and recently Biocon founder Dr. Kiran Mazumdar-Shaw. Prof. Star also referred to Sir William Burton, a judge of the Supreme Court of New South Wales, who was later appointed to the Madras High Court. With regard to the reliance of Indian judgements on Australian jurisprudence, Prof. Star highlighted freedom of trade, commerce and intercourse provisions enshrined Part XIII, Articles 301-307 of the Constitution of India, which had its foundational basis in Section 92 of the Australian Constitution. Prof. Star also delineated the salient differences between the two Constitutions by referring to the amendability of the same. While the Australian Constitution is harder to amend because of the need of referendum and state votes, Indian Constitution does not require the same rigmarole. Due to this rigidity of the Australian Constitution, it is difficult to introduce new Fundamental Rights, and therefore, Australia can learn from India to guarantee such rights expressly. Currently, provisions such as the separation of powers, right against self-incrimination, right to not be arbitrarily detained and right to due process are merely implied in Australian jurisprudence, while they are expressly guaranteed in India. Australia also has the unswayable right to trial by jury, while India does not. All in all, while there existed multiple similarities, salient differences also existed in the form of amendability and protection of rights. Senior Advocate Shyam Divan then began with his point of view regarding the comparative analysis of the jurisprudence by citing an event with regard to the Female Genital Mutilation PIL. He said that he had meant to place reliance on a New South Wales trial court decision which had convicted three individuals for engaging in it in 2017. However, the same had been reversed by the Australian Criminal Court of Appeal. Fortunately, this has been reversed again. Mr. Divan also referred to Justice Kirby as well as Justice Edwin Cameron of the Constitutional Court of South Africa, and their impact on Indian jurisprudence. For instance, decriminalization of homosexuality by the Delhi High Court in 2009 in the Naz Foundation v. Govt. of NCT of Delhi case could have stemmed from the interaction Justice A.P. Shah had with Justice Cameron, who had publicly come out as homosexual and was also HIV positive. Mr. Divan then elaborated on the importance of the right to ...

Talk Held On Comparative Constitutional Contexts Of India & Australia

Radhika Roy

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