THE AUSTRALIAN AND INDIAN CONSTITUTIONS, SIMILARITIES, DIFFERENCES AND THE CHALLENGE OF CONSTITUTIONAL CHOICE

Abstract

In this article, based on an address to the India Law Institute in New Delhi, the author, a former Justice of the High Court of Australia lists ten features of the constitutions of Australia and India that exhibit similarities; ten features where there are sometimes marked differences; and two areas of operation that illustrate the fact that in constitutional adjudication, especially, judicial decision-makers face what Julius Stone described as “leeways for choice”.  By reference to decisions in Australia and India on issues of race, aboriginality and human sexuality, the article identifies the inescapable challenge of choice and suggests useful guideposts.