For example, restrictions may lawfully apply to the free exercise of religion on the basis of public order, morality and health and the regulation of economic, financial, political and secular activities of the religion But in cases of doubt, as Chief Justice Latham pointed out … the court should take a common sense view and be actuated by considerations of practical necessity. The religion of a majority can look after itself.
Protecting the Human Rights in Australia
Section is required to protect the religion or absence of religion of minorities, and, in particular, of unpopular minorities" Another area of jurisprudence which was called in aid in the early days of the Indian Constitution concerned the constitutional guarantee of just terms for any law providing for federal acquisition of property This is still good law in Australia.
It has been applied recently The broad view adopted in the Australian decisions concerning the meaning of "property" for the purpose of constitutional provisions relating to compulsory acquisition of property undoubtedly influenced many early decisions of the Indian Court. In Dwarkadas Shrinivas v Sholapur Spinning and Weaving Co 23 , MahajanJ expressed the opinion that "the true concept of the expression 'acquisition' in our Constitution … is the one enunciated by RichJ and the majority of the court in Dalziel's Case 24 ".
Of course, care must be taken in adapting words used in relation to a different constitutional text, expressed in different terms and applicable to utterly different social circumstances and needs. Special care must be taken in the case of India because of the successive amendments to the provisions of the Constitution relating to the compulsory acquisition of property However, the use of the jurisprudence of the High Court of Australia indicates the particular open-mindedness of the early judges of the Supreme Court of India and their willingness to look beyond the traditional sources of the English judiciary.
One of the most vexed areas over the course of federation has been the guarantee in s92 of the Australian Constitution of absolute freedom of interstate trade, commerce and intercourse. The adoption of a counterpart provision in the Indian Constitution Article made it natural enough that attempts would be made, in the early days, to borrow from the meandering course of Australian case law for the guidance which it could give to the Supreme Court of India.
In Automobile Transport Rajasthan Ltdv State of Rajasthan 26 , DasJ referred to the need to read the Indian provision in a constitutional context which acknowledged the need and legitimacy of a measure of regulatory control, whether by the Union government or by the governments of the States.
We boast of being an absolutely free people, but that does not mean that we are not subject to law. As such, it is necessary "to add certain qualifications subject to which alone that freedom may be exercised" Subba RaoJ, in his opinion in the Automobile Transport Case , undertook an extensive review of the Australian case law on freedom of trade, commerce and intercourse. He noted that "some of the leading Australian decisions contain an interesting and instructive exposition of the conflict of jurisdiction and useful suggestions for resolving it" This was necessitated because there were no statutory provisions limiting the absolute freedom and, as uncontrolled freedom may lead to chaos, limitations on the freedom were evolved to save the said freedom.
The scope of the limitations so evolved would be useful to construe the relevant provisions of our Constitution". However, like the Australian decisions, HidayatullahJ concluded that a law which targeted interstate trade and commerce as such would be invalid This is still the law in the Australian Commonwealth. However, since the early borrowings from our jurisprudence a new enlightenment has been reached in Australia This is a difficult and controversial area, littered with legal tombstones, I hesitate to suggest that great help will be procured by Indian lawyers.
The provision of s92 of the Australian Constitution being in terms unlimited and unqualified the judicial authorities interpreting the same had to import certain restrictions and limitations dictated by common sense and the exigencies of modern society". There is another particular area of constitutional jurisprudence in which the Supreme Court of India has found useful the decisions of the Australian High Court.
It concerns inconsistency or repugnancy of State and federal or Central laws. The provision of the Indian Constitution in this regard Art is similar to that of s of the Australian Constitution. The analysis of s offered by Dixon J seventy years ago in Ex parte McLean 36 has proved as powerful an influence upon the minds of successive generations of Indian judges as it has upon those of Australia. There, K Ramaswamy J, in dissent as to the outcome, examined closely the history of Australian jurisprudence on the subject of constitutional inconsistency of laws.
The need to approach inconsistency and repugnancy in the constitutional sense in the context of a federal polity which is expected to work harmoniously as between the several parts, has been emphasised both in Australian and in Indian jurisprudence The inconsistency does not lie in the mere co-existence of two laws which are susceptible of simultaneous obedience.
Coper, Michael: Encounters with the Australian Constitution
It depends upon the intention of the paramount Legislature to express by its enactment, completely, exhaustively, or exclusively, what shall be the law governing the particular conduct or matter to which its attention is directed". The metaphor used in Ex parte McLean, by which the federal or central law will expel its state competitor if its clear purpose was to "cover the field" has entered Indian jurisprudence on this subject, just as, for seventy years, it has influenced countless Australian decisions where the like problem has presented.
Thus in Bropho v Western Australia 41 , the Court had to consider the application of the principle of statutory interpretation that general words in a statute will ordinarily be construed as inapplicable to the Crown ie the State.
The majority of the High Court, comprising MasonCJ, Deane, Dawson, Toohey and McHughJJ pointed to the fact that "there has been a growing tendency to question the appropriateness of the old rule of immunity to modern circumstances" In the Tasmanian Dam Case 44 , MurphyJ referred to the developed jurisprudence in a number of countries, including India by which the constitutionality of legislation is presumed unless the contrary is demonstrated. In the context of equality before the law, a number of decisions of the Australian High Court have drawn upon opinions in the Supreme Court of India.
Thus in the important case of Dietrich v The Queen 50 , DeaneJ noted that reasoning similar to that in the United States which upheld the right of indigent prisoners to state-funded legal representation had "prevailed in India". Justice Deane also drew upon the decision of the Supreme Court of India in Maneka Gandhi v Union of India 53 in support of the principle that a constitutional guarantee, such as that contained in s of the Australian Constitution, should be interpreted broadly and not confined to "narrow technicality or legalism" In the same case, GaudronJ 55 referred to the jurisprudence of the Supreme Court of India on the notion of equality before the law.
Applying a passage in the reasoning of MathewJ in Kerala v Thomas 58 , WilsonJ observed that "formal equality before the law does not always achieve effective and genuine equality … The extension of formal equality in law to a disadvantaged group may have the effect of entrenching inequality in fact" This same point was made by BrennanJ in the Australian High Court in his decision in Gerhardy v Brown 60 where he referred to the "pithily observed" remarks of RayCJ that "[e]quality of opportunity for unequals can only mean aggravation of inequality" BrennanJ remarked that "[t]he validity of these observations is manifest" As I have already explained, in each country the courts have applied tests to uphold, where constitutionally required, the legislative supremacy of the federal or Central laws.
It is a marvellous stimulus to Australian judges and lawyers looking at their own Constitution and seeking guidance from the analogous reasoning of others. The common features of the constitutions of the common law federations of the Commonwealth of Nations make it specially useful to study the decisions and textual commentaries applicable to the constitutions of other lands. As Australian federal constitutional jurisprudence enters its second century, with confidence born of true intellectual independence in all legal matters, it seems inevitable that Australian judges and lawyers will look increasingly to India.
This is why Seervai's work must not be permitted to become an historical time capsule. While there is a strong separation judicial power under the Australian Constitution, the system of parliamentary responsible government means that there is, to a large extent, a practical fusion of executive and legislative power.
And while there is no bill of rights that limits the legislative powers of the Parliament, the federal distribution of power means that neither the Commonwealth nor the State legislatures are sovereign in the fullest sense of the word. In this respect, federalism -- like the rule of law -- is both fundamental and pervasive. The whole point of the Australian Constitution was to unite the Australian States in a 'federal commonwealth' and virtually every provision of the Constitution reflects in some way its federal character.
Keywords: rule of law, federalism, democracy, responsible government separation of powers, judicial review, parliamentary sovereignty. Suggested Citation: Suggested Citation. Constitutional Law eJournal. Subscribe to this fee journal for more curated articles on this topic. Philosophy of Law eJournal.
Local Government Referendum
Skip to main content. Copy URL. Abstract It is widely recognised that constitutions cannot be understood without consideration of the fundamental principles that inform them.
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