Democratic Migration of Trans-Constitutional Ideas

Ashwini Jaiswal[1] & Mayukh Awode[2]

Abstract

Migration of Constitutional ideas is a common occurrence; drawing parallels between various constitutions forms a key and intricate part of the development of a Constitution. The Constitution of a country is its highest Grundnorm and forms the basic norm from which intricate norms are derived. The article explains as to how the Integrity of the Constitution, Judicial Activism and the inculcation of the principle of Rule of Law plays a key character to keeping the power of the legislature in check and as to how the Migration of ideas from various different constitutions around the world is the key factor which keeps the balance of the Constitution. An example of it would be the reflection of America’s Due Process in the Fundamental Rights of the Constitution of India. This paper will articulate how the constitutional migration of ideas has taken place with reference as to how there has been a steady growth of these ideas and how this development of the Constitution keeping the judiciary and Dicey’s Rule helps in maintaining a balance and equity in the Rule of Law. Thus this article will majorly showcase as to how the Migration of Constitutional ideas plays a key and very important role in keeping the integrity of the Constitution intact and to see that there is no misuse of the power vested with the legislature.

Introduction

Borrowing of ideas for one country’s constitution and promoting a certain idea in another constitution makes the staple of constitutional decision making. Past precedents, concepts, arguments, all can be carried on across borders to other countries, but the practice of this borrowing or migration of ideas and concepts itself remains under analysed. Drawing parallels to places where the legal mechanisms and concepts migrates between nations and fields of law associated with liberty and equality. The ideas of migration of constitutional ideas are a reflection of the legal process of globalisation of comparative constitutional law. Even when considered one of the three proponents of Dicey’s Rule of Law predominance of legal spirit can be said to be the basic postulate which gives law its concrete form as well as it sets law as actualization of dynamic nature of society and law.

The concept of migration grants equal prominence to the fact of movement of constitutional ideas across legal orders as well as the actual ideas that are migrating[3]. Across many in situations legal actors engage in constitutional borrowing for a range of purposes and with complex effects, some apparent and others less obvious.[4]What is interesting to us is that virtually all discussion surrounding instances of borrowing has concerned the substantive appropriateness of the specific appropriation and not the practice itself.[5] Borrowing is simply assumed to be as legitimate as any other form of referencing. But the borrowing of these constitutional ideas keeps the government in check and sees to the fact that the constitution in itself does not lack behind in the ever evolving society and world. It is also seen that the constitution though being a Grundnorm is kept in check by a variety of principles as to be seen ahead.

But any discussion of constitutional law needs to engage in more than textual analysis. Rainer Wahl, for instance, has argued that a comparison of constitutional law needs to take place on four levels:[6]

  1. Text and interpretation;
  2. The principles and institutions of constitutional law;
  3. The understanding of state and constitution;
  4. Comparative law as comparative culture.[7]

 The architects of Modern India paid close attention to the democratic cornerstones laid by the American jurists. The language of the America’s Fifth Amendment dictating due process of law can be glimpsed in India’s Fundamental Rights.

Over the years it has been a common consensus that India’s Constitution is among the world’s most frequently altered constitution, averaging around two amendments per year. India has not only derived constitutional aspects from the United States of America, but also from other countries like Russia from where the concept of fundamental duties was taken, idea of suspension of Fundamental Rights at the time of emergency was taken from the German Constitution and a plethora of other ideas taken from various other countries. This constant amending of the constitution and the borrowing of ideas is seen as a method of progress wherein the Constitution keeps the balance of the Rule of Law.

But the Historical development of Migration of Constitutional ideas can be primarily be seen through the inculcation of the civil and political rights. According to Professor U.N. Ghoshal’s[8] interpretation of ancient Indian thought, however, individuals, classes, and the community had civil rights but all such rights were referred only to the upper class and caste of people. The first clear statement of the rights of the individual is to be found in the work of Kautilya, the ancient Indian political thinker of the fourth century B.C.

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In the Arthashastra, justice was assured as a fair trial and the right to produce witnesses. Freedom of movement was guaranteed. Citizens had the right to trade and commerce. Rights of inheritance and the right to get standard wages were recognized,[9] These were just some of the rights which were guaranteed and can be traced back in history. The Independence of India saw many scholars coming together in the drafting of its constitution. Whilst at the time of drafting, these learned scholars who had gained knowledge seeing the constitution of other democracies placed a heavy reliance on this knowledge. The common law of England helped their society to upgrade all their shortcomings with respect to their perspective of rule of law. This transfer of power via the Indian Independence Act can be looked at as transfer of philosophy too. This paper will articulate how the constitutional migration of ideas has taken place with reference as to how there has been a steady growth of these ideas and how this development of the Constitution keeping the judiciary and Dicey’s Rule helps in maintaining a balance and equity in the Rule of Law.

Integrity

The development of any legal system depends upon the coherence of the norms and its percolating effect upon the society to hold it compactly and make it upgradeable too. The concept of integrity of legal framework in respect of globalization is with the acceptance of global legal morality within the domestic law to adhere to the aim of global society by creating certain uniform laws for the people anywhere in the world. Human rights can be best example for migration or adoption of legal and moral ideas into constitutional framework post world wars by certain bill of rights. The notion of sovereignty holds much of the shackles over the effect of a foreign judgment in Indian scenario. No doubt, when the test of monism and dualism finds its place in the Indian legal framework, the applicability of foreign judgments is in few of the cases. It can clearly be seen that the picture what these theory of international law portraits is for the adoption of international law in the domestic framework nevertheless it allows for the migration of the legal principles constitutional or civil and political in the pretext of scholarly value. No doubt Justice Scalia view of ‘romanticism of the notion of justice is the favourite past time of the judges’ holds true.[10]

The resort to Migration of legal ideas is for its multi-jurisdictional, cross-cultural, and inter-disciplinary character which transcends the frivolity and ambiguity of the national positive law. Yet the Judges of the court are quite reluctant when it comes to adoption of trans-constitutional ideas into their constitutional framework directly in the guise of sovereign statehood. The old balkanised view which many nations today follow Like USA which treats trans-constitutional migration as a threat to their legal framework whereas the judicial system of common law country permits the flow of legal ideas or principles which best suits their societal framework. Moreover, the permissibility of the ideas in the system highly depends upon legislative intent and the judicial flexibility/activism to upgrade or fill in the lacuna the national positive law fails to remedy. For which the notion of comparative law plays a vital role. Alan Watson was to some extent correct in claiming that “successful borrowing could be made from a very different legal system” since what is borrowed is an “idea” that can be absorbed into the law of a given country.[11] To quote Hart he says that any general term in a natural language has a central “core” of determinate meaning and a surrounding “penumbra” of indeterminate meaning.[12] He is of the view that while deciding the cases which falls under the open texture of law, the judges must show characteristic judicial virtue such as  impartiality and neutrality in surveying the alternatives; consideration for the interest of all who will be affected; and a concern to deploy some acceptable general principle as a reasoned basis for decision.[13] The idea of political morality and judicial accountability reasons the acceptability of the foreign material in the legal framework. For example, the section 23 of the Contracts Act, 1872 can be linked to the English constitutional principle of “everything which is not forbidden by law is allowed”.

The role of foreign judgments in any system where dualist theory of law (international law) follows much value is given to the domestic law and no doubt the Indian judiciary considers it correct in view of the different societal framework and conditions which bi-polarizes the notion of uniformity of law. This notion of duality leaves the law as comparative analysis or repair mechanism and therefore it leaves the law simply at reductionist point of view. Mattias Kumm’s idea concludes that the legal force of moral principles stems not only from their guidance function, but also from their ability to develop legal practice ‘in a way that fulfils its promise of integrity’.[14]

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The view that Jeffery Goldsworthy reminds the readers that Parliament has final legislative authority, and judges are authorised to declare the law and interpret the text (in order to deliver judgment on the consistency of legislation with protected rights). Judicial creativity exists only in two situations: first, in order to update the language of an old statute (purposive interpretation), and second, to remove an ambiguity or fill a gap. For Goldsworthy comparative law is a repair kit with which to cover any indeterminacy (ambiguities, inconsistencies and gaps) in the constitutional order.[15]

Judicial activism and scholarly value

The note at which J. Goldsworthy leaves blurs the line between Judicial Activism and Judicial ingenuity. To him the role of Judicial Activism starts at secondary level after the failure of the national positive law to provide remedy for the mischief in certain case. However, this theory which the Indian judiciary accepts is not predominantly followed in the Indian legal system. In other words, certain cases give wide jurisdiction to the Constitutional Court to take recourse to judicial activism for a remedy which at that point of time is not provided in any legislative acts. Bhopal gas tragedy and the Jessica Lal Murder case are the top two cases wherein Judicial Activism had taken the forefront. From recognising Absolute liability to admissibility of the evidence, the Supreme Court has followed a path which the national law would have or could have made the notion of “Justice redundant. The concept of basic doctrine theory which is laid out in KeshvanandaBharti case[16]can be trace from the judgement in the US court in the case of State of Rhodes Island v. Palmer[17] where “the decision of the Congress on this question as to whether a particular amendment should be ratified by the State Legislatures or by the State Conventions is final. The Constitution makers must have proceeded on the basis that the Congress is likely to require the amendment of basic elements or Fundamental features of the Constitution to be ratified by State conventions. This case served as a basis for scholarly value when the consideration is upon the basic element or Fundamental feature of the constitution.

No doubt the value attached to any foreign judgment is of the persuasive value yet it establishes a base for upgrading or bringing mild or gradual change in the societal perception over certain topics. Zweigert and Kotz claim that ‘the primary aim of comparative law or migration of ideas, as of all sciences, is knowledge’.[18] Yet the notion of Social interest litigation originating in USA is found or adopted in many other countries with certain reservations or up-gradation. In India the concept of Social interest litigation was adopted as Public Interest Litigation giving a broad ambit for Locus Standi in a court.

Rule of Law, Natural Justice, Universal Jurisdiction in case of War Crimes, extradition treaty, and certain other principles which finds its origination in other countries have very much been adopted in the Indian Scenario for institutionalized mechanism and Judicial Activism sets these principles in motion where the positive law fails to govern.

Rule of law and constitutional migration of ideas

The basic idea behind drafting a constitution, whether written of unwritten, is to set up a system of organic laws in a country. The basic principles and state institutions set up in our constitution were not of our own creation. We borrowed modern western concepts and modern institutions from western countries and adopted them from above on our backward, semi- feudal society.[19] The necessary conclusion which the definition of rule of law implores is with respect to the effective administration of Justice and the Courts action to safeguard this principle. And accepted principles by the jurist gathering in Delhi in 1959 also known as Delhi Declaration, 1959 which held that the rule of law is a dynamic concept for the expansion and fulfilment of which jurists are primarily responsible and which should be employed not only to safeguard and advance the civil and political rights of the individual in a free society, but also to establish social, economic, educational and cultural conditions under which his legitimate aspirations and dignity may be realized.[20]What may be derived from the declaration is that the jurist primary duty is concerned to adhere to the principle of rule of law and give meaning to this principle in view of the situation so arise. And while establishing the norms related to the notion of Justice and rule of law, certain principles, not directly provided in the parent act, can be adopted and established to advance the civil and political rights of the individual.

This can be worked through the theory postulated by Mayo Moran on constitutional migration which relates to the idea of conceiving of legal sources in strict hierarchical terms, but developing a more supple system in which constitutional rights migrate.[21] Mayo Moran draws a parallel between the mandatory effect of international and comparative law on domestic constitutional law, and the relationship between constitutional law and the law governing private relations.[22] In jurisdictions which deny the horizontal effect of human rights, individual rights have nonetheless developed an influential authority. Moran promotes the migration of constitutional ideas through an understanding of constitutional law as influential authority’ which she couples with the declining significance of the traditional and hierarchical conception of law. However, in so doing she ignores, for instance, the majority judgments of the US Supreme Court in Lawrence v Texas[23] which cited decisions of the European Court of Human Rights before it struck down the criminal prohibition of homosexual sodomy in Texas and overruled its earlier ruling in Bowers v Hard wick[24] and Roper v. Simmons[25]where the Supreme Court took account of international opinion in finding that the juvenile death penalty was unconstitutional.

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Conclusions and implications

The Supreme Court of India’s judgment in D.K. Basu[26], confirmed the current scholarly classification schemes for comparative constitutional adjudication[27]. The procedural and compensatory regime imposed by the Court tracks a universalist interpretation of rights of criminally accused and the role of courts in preventing the abuse of executive power in the local enforcement of laws.

While the confrontation between civil liberties and the necessity of effective law enforcement faces the vast majority of modern states, the role of the courts is not necessarily a fixed one. D.K. Basu[28]established or solidified the Supreme Court of India’s role as a preeminent player in resolving that confrontation, a role that may be problematic given India’s vast size and recurrent insurrectionary activity. Indeed, the role of courts on that particular issue necessarily involves historical context. Constitutional courts like South Africa’s may engage in comparative jurisprudence in order to “internationalize” their legal regimes to “affirm [their] membership in, or to re-join, the mainstream of international society.”[29]

The idea behind this article was to analyse the validity of migration of constitutional ideas and to what extent can they be held applicable when formal definition of rule of law is considered. The present article though articulates only a certain aspect of migration of these ideas, it is clear from the body of this article that judicial activism plays a crucial role in ascertaining justice and implementation of foreign ideas in concrete structure of law. Though the backbone of it is the integrity between the domestic and international legal principle wherein the maximum implementation occurs. Thus due to globalisation the migration of ideas is a common occurrence and is accepted unequivocally in today’s date with very few critics it is now an essential part of the formation of this Grundnorm.


[1] Student, National University Of Study And Research In Law, Batch 2014-2019.

[2] Student, National University Of Study And Research In Law, Batch 2014-2019.

[3] Printz v. United States, 521 U.S. 898, 2 (1997).

[4] NelsonTebbe & Robert L. Tsai, Constitutional Borrowing, 108MICHIGAN L.R 459, 459-522 (2010).

[5] Id. at 2.

[6] RAINER WAHL, VERFASSUNGSSTAAT; EUROPAISIERUNG; INTERNATIONALISIERUNG 99 (Suhkramp, Frankfurt A.M., 2003).

[7] Id. at 4.

[8] U. N. Ghoshal, A history of Indian political ideas: the ancient period and the period of transition to the middle ages, 25(1) BULLETIN O. T. S. O. ORIEN. A. AFRIC. STUD. 589, 589-577 (1962). 

[9] Satish Kumar, Human Rights and Economic Development: The Indian Tradition, 3, Hum. RIG.QUART. 52, 47–55 (1981).

[10] US Supreme Court Justice Antonin Scalia& Stephen Beyer,A Conversation Between U.S. Supreme Court Justices, 3(4) INTERN. JOUR. O. CONST. LAW 519, 519-541 (2005).

[11] Alan Watson, Legal Transplants and Law Reform, 92 L. Q. REV. 79, 77-81 (1976).

[12] H.L.A. HART, THE CONCEPT OF LAW 266 (Joseph Raz & Penelope A. Bulloch, 3rd ed. 2012).

[13] David Lyon, Open Texture and the Possibility of Legal Interpretation,18 LAW A. PHIL. 299, 297-309 (1999).

[14] Mattias Kumm, European legality and Jurisdictional Justification, CEN. F. EURO. STUD. 115, 115-122 (2011).

[15] JEFFERY GOLDSWORTHY, INTERPRETING CONSTITUTIONS: A COMPARATIVE STUDY 351 (Oxford University Press, 2006).

[16] KesavnandaBharti v Union of India, (1973) 1 S.C. 1461.

[17] Island v. Palmer, 253 U.S.350, (1920).

[18] K. Zweigert & H. Kotz, An Introduction to Comparative Law, 3 OXFORD C.P. 714, (1998).

[19] Markanday Katju, Constitutional Jurisprudence, 87 AMIC.CUIR. 20, 18-21 (2011).

[20] Declaration of Delhi, International Commission of Jurists, New Delhi (1959).

[21] Mayo Moran,Inimical to Constitutional Values: Complex Migrations of Constitutional Rights; Sujit Choudhry, The Migration of Constitutional Ideas, CAMBRIDGE U. P. 235, 233-235 (2006).

[22] Jo Murkens & Eric Kaushal,Neither Parochial nor Cosmopolitan: Appraising the Migration of Constitutional Ideas, 71 THE MODERN L. R. 306, 303–319 (2008).

[23] Lawrence v. Texas, 539 U.S. 558 (2003).

[24] Bowers v. Hardwick, 478 U.S. 186 (1986).

[25] Roper v. Simmons, 543 U.S. 551 (2005).

[26] D.K. Basu & Ors.v. State of West Bengal, (1997) 1 AIR SC 610

[27] Sam F. Halabi, Constitutional Borrowing as Jurisprudential and Political Doctrine in Shri D.K. Basu v. State of West Bengal, 3 NOTRE DAME JOURNAL O.I.A.C.L. (2013).

[28] Id. at 25.

[29] Sujit Choudhry, The Migration of Constitutional Ideas, CAMBRIDGE U. P. 234, 233-235 (2006).