Parth Goyal
Introduction
In November, 1949, Dr. B.R. Ambedkar delivered his final remarks as Chairman of the Constitutional Drafting Committee before the Constituent Assembly of India, elaborating a grand and noble vision for the transformative project that was the Indian Constitution. He stressed that India must “hold fast to constitutional methods of achieving [its] social and economic objectives” if it was to rise above its “life of contradictions” — where political equality has for long continued to coexist with deep caste and class inequalities. Similar sentiments were echoed by President Nelson Mandela of South Africa in December, 1996 as he signed into force the post-apartheid state’s newly drafted, transformative constitution: “Let us now, drawing strength from the unity which we have forged, together grasp the opportunities and realise the vision enshrined in this constitution. Let us give practical recognition to the injustices of the past by building a future based on equality and social justice.”
Just as they share transformative constitutional aspirations, India and South Africa share a history of struggle against authoritarian regimes and deeply-embedded social injustices. The similarities run deep: both nations are characterised by their demographically broad ethno-linguistic and cultural diversities, both were formerly subject to colonial dominion and in both nations, successful revolutions prominently called for universal franchise and the abolishment of caste or apartheid-based discriminatory practices. Even the constitution-making efforts of each nation were led by what Bruce Ackerman (albeit somewhat reductively) calls “movement-parties” and their “charismatic leaders” — Nehru’s INC in India and Mandela’s ANC in South Africa. Their mutually converging histories thus help explain their similar efforts towards designing transformative, “post-liberal” constitutions. There are, however, two key differences setting apart the Indian and South African constitutional experiences. Firstly, unlike South Africa’s constitution, which was drafted in accordance with principles of an interim-constitution and then ratified by the SACC, India’s constitution was ratified and drafted by a Constituent Assembly with an unlimited mandate — and with its constitution-making process not involving the same degree of public participation as in South Africa either. Secondly, unlike South Africa’s, India’s Constitution prefigured (and perhaps, rather contributed to developments in International law and globalization. So, while similar in many aspects of their social and political histories, India and South Africa primarily diverge in their constitution-making contexts.
Nevertheless, for the purposes of our study here, the transformative constitutional emphasis on civil-political rights in each nation should provide us with a grounded means of comparing India and SA as ‘prototypical cases’ for a congruent human rights framework, allowing us to test whether a constitutional idea in one jurisdiction can find fertile soil in the other. By examining instances of inter-judiciary dialogue between the Indian Supreme Court (ISC) and the South African Constitutional Court (SACC) on matters relating to civil-political constitutional rights, this article shows that constitutional ideas have indeed migrated well between the two jurisdictions.
Democracy, Constitutional Transformation, and Foreign Laws
At the outset, two objections may be raised, in light of democratic values, to the very scope of our inquiry. Firstly, why, in a representative democracy, should an unelected judiciary be permitted to informally transform the constitution? And secondly,why should a judiciary use foreign laws above robust domestic debates to interpret the constitution towards those transformative ends?
To the first question, we may begin by answering that informal constitutional transformation is a rather natural consequence of common law practice. As David Strauss observes, in common law constitutional adjudication, “the text plays only a nominal role. The issue is decided by reference to ‘doctrine’ — an elaborate structure of precedents built up over time by the courts — and to considerations of morality and public policy.” That is, in established practice, Courts look beyond the text alone to interpret constitutional provisions, and may thereby transform the meaning of the text from its pure originalist understandings. For a ‘living constitutionalist such judiciary-led transformation is indeed welcome and democratic insofar as it updates and legitimises old constitutional principles for newer world orders by reflecting upon progressing standards of morality in constitutional interpretation. Or, as Ronald Dworkin and James Fleming argue, informal constitutional transformation is indeed legitimate and necessary as constitutions embody abstract moral and political principles which require continued deliberative interpretation, across the ages, to make them the best they can be for a given time and people.
Turning to the second question, we can examine the benefits of the comparative constitutional law (CCL), and particularly, a method most familiar to Indian and South African constitutional adjudication: what Mark Tushnet calls bricolage — the judiciary’s citation of a seemingly random or wide array of foreign comparative materials to solve immediate problems that they face. Such a practice, for Tushnet, is a natural and desirable consequence of any creative interpretation, helping to understand the broader phenomenon of constitutional experience across similar legal systems and thus aiding in a judiciary’s transformative constitutionalist project. Accepting this justification, then, we might venture to ask whether bricolage may be an unrestricted practice — for surely, if that were the case, judges could arbitrarily and irresponsibly cherry-pick only those foreign cases which supported their particular interpretative-ideological stances or reasonings.
Here, Rosalind Dixon intervenes by propounding a dynamic-reflective theory of constitutional comparison which is premised on the idea that constitutional trends in certain foreign jurisdictions may “co-evolve” with domestic trends and thereby provide “a valuable source of information about the likely evolution, or non-evolution, of domestic constitutional understandings in a particular context.” While Dixon’s theory stresses the democratic legitimacy of inter-judicial dialogue by showing how it may “counter legislative failures of [democratic] responsiveness” by using foreign legalistic reasonings in place of extensive domestic deliberation, it also restricts the scope of comparison available to only those jurisdictions which are highly-similar at a general constitutional level. Contrastingly, Madhav Khosla offers a more bricolage-friendly theory of inclusive constitutional comparison, which may equally serve our theoretical ends in this study. For Khosla, by citing multiple and diverse foreign sources, a Court may “reduce, rather than increase, the risks with citing foreign law” since its judges would firstly not be restricted to any one judicial network (say, the West or the Global South) in their analyses, and, would secondly, be exposed to a greater variety of reasons to choose from — thereby having to justify the relevance of their most preferred foreign reasonings for application in domestic constitutional law.
In our study, we can draw out the benefits of both Dixon and Khosla’s approaches to comparative case selection: our scope of inquiry is both narrow — flowing from a construction of similar constitutional contexts in the two jurisdictions, but also inclusive in so far as it affirms the value of even decontextualized comparisons. An attempt is made to show how India and South Africa’s Apex courts have cited each other, amongst a long list of other jurisdictions to round out their analyses.
Inter-Judiciary Dialogue in Praxis
Article 39(1) of South African Constitution expressly provides that: “When interpreting the Bill of Rights, a court, tribunal or forum… (c) may consider foreignlaw.” And in India, even without an express constitutional mandate, the discussion of foreign laws has become a standard and routine ISC practice and is evident in landmark judgements such as those on privacy, rule of law, and freedom of press. The ISC’s outlook on the citation of foreign laws may be summarised by Justice E.S. Venkataramiah’s opinion in National Textile Workers vs P.R. Ramkrishnan, where he asserts that “A foreign decision (even though it may not be binding) is either worthy of acceptance or not depending upon the reasons contained in it and not on its origin or age. There is no reason why we should not follow a well reasoned foreign decision unless it is opposed to our ethics, tradition and jurisprudence or otherwise unsuited to Indian conditions.” So, the constitutional cultures of both nations have already accepted, with enthusiasm, the promise and virtues of comparative constitutional analysis and, to such effect, have frequently cited each other’s decisions in their own. The emerging dialogue between these judiciaries, as will be demonstrated by reference to case law below, has catalysed the recognition of broad political rights protections in each jurisdiction.
Such is the case in Navtej Singh Johar vs Union of India, wherein the ISC draws upon the SACC’s explications of transformative constitutionalism to forward its own arguments in favor of reading Indian constitutional provisions on civil-political rights liberally. Building upon the SACC case of Re Hyundai Motor Distributors (Pty) Ltd and others v. Smit NO, wherein it was observed that “the process of interpreting the Constitution must recognise the context in which we find ourselves and the Constitution’s goal of a society based on democratic values, social justice and fundamental human rights,” the ISC too opined in Johar that “The idea [of transformative constitutionalism] is to steer the country and its institutions in a democratic egalitarian direction where there is increased protection of fundamental rights and other freedoms.” Accordingly, in this case the ISC decriminalized homosexual behavior in India by holding relevant criminal law provisions unconstitutional in certain effect. In South Africa, a reciprocal citation to a similar results was put forward in Minister of Health and Others v Treatment Action Campaign wherein the SACC, against charges of ignoring the doctrine of separation of powers, justified its grant of injunctive relief by hailing the “willingness on the part of the Indian courts to grant far-reaching remedial orders.”
Similarly, in the landmark Indian privacy rights case of Justice K.S. Puttaswamy vs Union of India, Justice D.Y. Chandrachud dedicated a section of his majority judgement to analyzing the right to privacy in South Africa — thereafter drawing up a similar construction of the right for the Indian context. Examining SACC decisions such as National Coalition for Gay and Lesbian Equality v Minister of Justice and Minister of Home Affairs v Fouriewhich linked the right to privacy with concepts of human equality and dignity, and noting the transformative value of such an expansive reading of right to privacy for a post-apartheid state like South Africa, Justice Chandrachud concludes his judgement by holding that in India “Privacy is a constitutionally protected right which emerges primarily from the guarantee of life and personal liberty in Article 21 of the Constitution. Elements of privacy also arise in varying contexts from the other facets of freedom and dignity recognised and guaranteed by the fundamental rights contained in Part III.” As such, constitutional comparison with South Africa was indeed helpful in construing the scope of the right more broadly in India too. Congruently, in the South African case of S v Makwanyane, while considering whether the death penalty went against restrictions on cruel and unusual punishment in section 11(2) of the interim South African Constitution, the SACC broadly surveyed Indian judgements on the constitutionality of the death penalty. Then, distinguishing the text and history of the Indian Constitution from South Africa’s and noting that the Indian constitution had “express indications of the acceptability of the death sentence in Article 21,” Justice Chaskalson of the SACC observed that:
It is therefore understandable that the Supreme Courts of [USA and India] have found themselves unable to hold that the death penalty is per se unconstitutional. Nonetheless, in our attempt to identify objectively the values of an open and democratic society what I find impressive is that individual judges of great distinction such as Brennan J in the United States and Bhagwati J in India have held, notwithstanding those constitutional provisions, that the death penalty is impermissible when measured against the standards of humanity and decency which have evolved since the date of their respective constitutions.
Referring to Justice Bhagwati’s dissenting opinion in Bachan Singh v State of Punjab which fiercely condemned the constitutionality of the death penalty, Justice Chaskalson further evolves a constitutional principle that had failed to take hold in India but could be made relevant for the emerging South African democratic state. In this way, the SACC incorporated a dynamic-reflective theory of comparison with India to define the scope of the right to life in South Africa — showing that even failed ideas in one jurisdiction can indeed prosper in another when constructively read into a constitutional analysis.
Conclusion
So, here we have seen the makings of a sustained dialogue about constitutional futures between two rather nascent democracies — each seeking to remedy the injustices of the past by recognizing greater political freedoms for the people of the present. Inter-judicial dialogue has then served to embolden their judiciaries in realizing the transformative goals of their respective constitutions: by citing the other Court’s constitutional analyses as an example to build upon, the apex courts of each nation were able to justify their own expansive, positive reading of a constitutional right.
The author is a student at the O P Jindal Global Law School.
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