‘the constitutional guarantees of rights and political freedoms’

8/11/2019 THE CONSTITUTIONAL GUARANTEES OF RIGHTS AND POLITICAL FREEDOMS

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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

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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

‘the constitutional guarantees of rights and political freedoms’

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