Constitutional rights and guarantees: the contrasting approaches of Australia and India

Abstract

ABSTRACT The Australian and Indian legal systems share much in common given their shared colonial history. However, despite the similarities, both jurisdictions have adopted vastly different approaches in protecting their people under the auspices of constitutional guarantees and the protection of fundamental human rights. This paper will discuss how each jurisdiction protects the fundamental human rights and basic freedoms under their respective constitutions and whether these protections are adequate. The few constitutional guarantees that exist in Australia will be contrasted to the robust fundamental rights enshrined in the Indian constitution. It will be concluded that India sets a stronger example than Australia when it comes to constitutional rights and guarantees for three main reasons; first, the different vision of the constitutional framers of India and Australia; second, India’s Constitution is easier to amend and therefore better placed to evolve and reflect changing societal norms; and finally, the divergent approaches of the Judiciary illustrate the broader interpretation of the scope of constitutional rights by the Indian judiciary. India and Australia can learn much from each other and the ways in which each country protects fundamental rights and basic freedoms are no exception to this.