Interoperability of Indian and Australian Constitution

INTRODUCTION

The constitution of any country is the fundamental law of the land. The whole system of a country operates according to the Constitution of that country and it intends to preserve not only practical rights but substantial rights of its citizens. A constitution is a living document as it ensembles everything in it that is required by nation and its citizens. It keeps growing and it is necessary as well to keep revising and modifying it as per the demands and needs of the citizens. Although the base remains the same, the guiding principles remain the same but the interpretations and additional clauses keep on making it a young document.

Indian society is the world’s most diversified and challenging society. Hence for such a challenging society, a relatively more powerful judiciary was required. The Constitution of India provided our society that kind of judiciary which acts like a guardian angel. It protects the Constitution. This judiciary decoded the Constitution’s language in the form of interpretation as was coded by those who made the Constitution and discovered thee hidden principles and rights for this most populous State.

The Indian and Australian Constitution are interoperable in various jurisprudential concepts. A few concepts as examples can be quoted as of fundamental rights, rights related to property, freedom related to trade and commerce, related to inconsistency of laws, application of International laws to the domestic law, etc. In this paper, an attempt to understand the interoperability of both the Constitutions is made.

 

A BRIEF TO THE CONSTITUTION OF INDIA AND AUSTRALIA

As stated in the famous fundamental rights case KesavanandaBharati v. State of Kerala[1] by Shelat and Grover JJ that our Constitution is one of its kind apart from being the longest written Constitution of the world and it suits the country with the second largest population in the world. It suits the needs of the diversified people and processing varying religions. It can be said so because it was chiseled by and sculptured by those great minds who saw a bright future of its upcoming generations for centuries. They were the great legal luminaries and leaders who suffered the atrocities of the British and took an active part in the freedom struggle. The Constitution of India seeks to establish a welfare State where in there should be justice, liberty, equality and fraternity which is the essence of justice that lies in the attainment of happiness and good of all as distinguished from happiness of an individual or of that majority. This presupposes equality of status and of opportunity which in turn presupposes equality in position and circumstances to benefit there from. The salient characteristics of the Indian Constitution includes the Preamble, the welfare State, Republic, single citizenship, universal adult suffrage, quasi-federal form of Government, the flexibility as well as rigidity of the Constitution, fundamental duties, fundamental rights, Judicial review, impartial and independent Judiciary, Directive Principles of State Policy and many more.

 

The Australian government is one of the oldest democracy that is still continuing. This democracy was formed when the federations that were formerly Colonies of the British Empire like the United States agreed to the federate. It was in the year 1901 when Australia decided to be another State to form into a federation. It has a written Constitution which has defined the responsibilities and duties that a federal government must fulfill like that of foreign relations, defense, immigration, trade, and commerce, etc. The Government of the States and the Territories adhere to those principles which are fundamental to the governance and form a part of a responsible government. This Government is responsible to deal with matters which are not assigned to the Commonwealth. The Queen is represented by a Governor for each State. The High Court of Australia, which is the apex court in Australia has the power to arbitrate on the matters and disputes that arise between the Commonwealth and the States.

With the help of the court decisions, the scope of the Constitutional powers and the responsibilities that a federal government has, is being expanded. The same kind of system of Government can be found in India where the Supreme Court has the original jurisdiction in the matters involving the disputes between the government and the State, or between two or more States on one side and the Government on the other side.

Created in the year 1901, the Commonwealth of Australia was united when the ‘six colonies’ became the ‘six States’ which are Western Australia, South Australia, Victoria, Queensland, New South Wales and Tasmania. It can be said that it was far more developed than what we had in India in the year 1950. Alike India, the Australian Constitution has also borrowed some of its features from the already established democracies and federal States in the world.

The government of Common wealth of Australia and its relationship with the six States of Australia operates under the Australian Constitution. It comprises of several documents. The most significant is the Constitution of the Commonwealth of Australia. A series of referendum were held by the people residing in the Colonies of Australia during the time period of 1898-1900 thereafter which this Constitution was accepted. In these series of referendum, the people of Australia voted for a national Constitution.

The questions that were answered by this Constitution of Australia includes the composition of the Parliament, how the Parliament would work, what all powers would it have, how the power among various organs including the powers between the State and Federal Parliament will be shared, roles that an Executive Government will play, the powers of the High Court, etc. Any politics in Australia takes place within the framework of a Constitutional Monarchy, which a federal constitutional parliamentary democracy lays down. The parliamentarians to the Federal Parliament of Australia are chosen by the people. The Parliament of Australia is a bicameral body that has inherited from the Westminster System the elements of fused executive and a strong Senate adopted from the United States Congress. This whole system is based on the liberal democratic tradition.

Beginning from the freedom of speech and association, the rule of law to the values that show the principles of religious tolerance depicts that how the Institutions in Australia and the conduct of the Government depicts the North American and British models. To state an example, the residuary powers are with the States, the Governor for every State is elected by the people of Australian States and formally appointed by the Queen of Britain. This all has resulted in the growth of Cooperative Federalism.

Like in India we have Preamble which declares that the constitution is given to its citizens by themselves the said phrase is “We the People of India…Hereby Adopt in Act and Give to Ourselves this Constitution”, similarly the Constitution of Australia is the product of the hard work of the people of Australia even though it was legislated by British Parliament. The opening words proclaim that the Australian Constitution is founded on the spirit of the Australian people.

Indian and Australian Constitution shares similarities in their Constitutions from the very conception of idea of rule of law to the government system, common law tradition of precedents, borrowings from various other constitutions, in deciding the cases by referring to various precedents of both the countries mutually.

 

HISTORY SHARED BY THE CONSTITUTION OF INDIA AND THE CONSTITUTION OF AUSTRALIA.

A cliché that is used for instating the current usual business between Australia and India was earlier and in fact now to some extent is based on three C’s-  Cricket, Curry and the Commonwealth. This is not a business at all when it comes to this ‘three C’s relationship.

The Constitution of India in its early stages was not much developed, it was yet to be interpreted in various senses. Therefore, the judges of India would usually look for decisions for seeking guidance to other federal supreme courts including the High Court of Australia. In fact, various decisions were referred for the purpose of clarification and better judgement in certain case. Also to begin with, the earliest connection between the legal histories of both the nations can be traced back to the appointment of Sir William Burton as the Judge of Madras High Court in 1884. It can be said that the British experiences shared through history of British colonial and imperial rules brought the English language common law system and similar professional traditions and legal classification. Also John Lang was one Australian barrister who had a successful career as a barrister in India. What survives in India as well as in Australia is a judiciary which is characterised as an independent and uncorrupted that was introduced by the British.

 

In the case of Bangalore water supply and sewerage board v. A. Rajappa[2], Justice Krishna Iyer of the Supreme Court noticed that in interpretation we may refer the Australian cases and the English laws as well. He shared the commonality of the features of legal systems of the two countries represented in colonial flavour and represents English law copy.

Building a nationwide Constitutionalism and unity under a new Supreme Court created in 1950 constitutes (which secularism civil governance the rule of law and repeated National elections) an astonishing achievement.

In the case of Attorney General of New South Wales v. Collector of Customs for New South Wales[3], Justice O’Connor observed that whenever it is required for the purpose of effective and efficient exercise of Commonwealth power that a State Power should be restricted, it must be understood in the light that the State was provided with such power in the restricted form. In that case the general words conferring the Commonwealth power will be interpreted in the wider and not in the narrower sense. It is, therefore, essential at the outset to see what is necessary for the effective exercise of the Commonwealth power to impose customs, duties and to regulate trade and commerce with foreign countries. In this connection other powers expressly conferred on the Commonwealth may be considered, and taken as a whole, they vest in the commonwealth, the power of controlling in every respect Australia’s relation with the outside world.

CONCLUSION

The achievement of the Australian Constitution with respect to a century that has passed after the becoming of Australia a free country is remarkable. Not only the text of the Constitution of Australia but the cultural values and character of Australian people says more about this achievement. The acceptance of the Constitution by the people of the respected country is in itself a great achievement because it’s the people who make the Constitution and it is they who leads the way for the further development of their respective Constitution. Like it was observed in this paper that how with changing times and decades, the development in both the Constitutions can be seen. It was possible, and is possible in years to come because of two main reasons. Firstly, because of the inclusion of the great structure in the form of Judiciary which interpreted it in various circumstances so as to meet the needs of the people that keeps on changing and makes the nature of Constitution a dynamic one. It is because of this Judiciary that the laws are harmoniously constructed and the threshold of a peaceful coexistence of not only people but the laws is ensured. Secondly, the people of that nation plays a very important role in ascertaining the effectiveness of the Constitution. Like in the case of Australia, the people on the electoral roll decided the alteration in any proposed law. In India, people decide as to who will make law and what law or change is required which is ascertained in the form of promises that their representatives make. And then of course, it is the Legislature and the Executive together to complete the scene of a fantastically designed nation that will keep itself moving towards achieving anything it requires to make itself a harmonious, peaceful nation that is the ultimate requirement of any nation to survive and keep its flag high in the sky in the international arena. The Constitution of every country when put together proves to be abundant for what the world requires. Therefore, this approach of studying the different constitutions of the world and borrowing features from each other is an interesting part to make an affluent Constitution.

[1] AIR 1973SC 1461

[2](1978) 2 SCC 213 at 225

[3](1908) 5 CLR 818, 842

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