Should Canadian Law Matter to Indian Jurists? Advocating for More Substantial Legal Discussion Between the ‘Long Lost Siblings’

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Disclaimer: This work was prepared separately from this author’s employment responsibilities at the Public Prosecution Service of Canada. The views, opinions and conclusions expressed herein are personal to this author and should not be construed as those of the Public Prosecution Service of Canada or the Canadian federal Crown.

Introduction

India and Canada are geographically at the two extreme ends of the world. On the one hand, without delving into the details of its climate as described in the Bāburnāma, which provides “some scattered information about India [including] its different climate”, India is, for the most part but with a few exceptions, a warm country, with sometimes scorching heat.

On the other hand, Canada is a cold, sometimes freezing cold, country. Voltaire even described Canada as “a few acres of snow”.

Therefore, if we were to judge the similarity of these two countries solely based on their climate, we would obviously be obliged to conclude that they have close to nothing in common. But there is more.

India and Canada: ‘Long Lost Siblings’

India and Canada have much in common. As observed in 2017 by the former Chief Justice of the Supreme Court of Canada, the Right Honorable Beverley McLachlin, both India and Canada “are made up of people who speak different languages and come from different cultural backgrounds”. These two countries also share the colonial legacy of the British Empire, which includes the use of common law. In addition, as Martha A. Field observes, “[t]here are many levels on which to compare our court systems. In both systems, the Supreme Court has jurisdiction to review decisions coming from both state and federal courts, and has the power and duty … to depart from legislation that does not conform to the national constitution.”^[1] Further, Canada may be compared with India because “India’s system is particularly well suited to a comparison with the Canadian systems”, and “some even call India and Canada ‘long lost siblings’ because their constitutional dynamics are similar”.^[2]

India and Canada: Is There A ‘Family Feud’?

Because the author of this article has been involved since around a year in authoring and co-authoring book chapters and articles with Indian academics, and more recently in giving several online seminars in India during the COVID-19 international health crisis, he has been struck with the following observation: with a few exceptions, Canadian and Indian academia as well as law practitioners do not seem to usually work as closely as the author would have first expected. While the author would be immensely happy to be proven wrong, the constant seems to be that the academia and law practitioners of both countries do not work much side by side by learning, for example, from each other’s experience of the past and about how to approach the future in light of the present when it comes to the evolution of their fields of interest in law, or by sharing their knowledge and expertise about a wide array of legal issues, which are oftentimes quite similar in both countries. Why is it so? Are the ‘long lost siblings’ experiencing a ‘family feud’? Not that the author is aware of.

The Approach Adopted in Comparing India’s and Canada’s Constitutional Law

As Mark Tushnet put it, “Why study comparative constitutional law? For a scholar, of course, the value seems obvious: more knowledge is generally better than less. Others have a more instrumental interest. They might want to know whether studying comparative constitutional law might improve our ability to make domestic constitutional law.” ^[3] Therefore, the author takes the gap described above about the lack of collaboration between the two countries in the legal field as an invitation to remind the readers of the close proximity of the legal system in both India and Canada, more specifically regarding their respective constitutional law. Summarily, the approach adopted in this brief paper is “to see how constitutional ideas developed in one system might be related to those in another”^[4], i.e. in India and Canada, acknowledging at the same time some of their differences.

Comparing A Few Core Elements of Indian and Canadian Constitutional Law

Foundational Principles

First, in the landmark decision of Kesavananda Bharati v. State of Kerala [AIR 1973 SC 1461], the Supreme Court of India held that a constitutional amendment may not alter the basic structure of the Constitution, including the guarantee of fundamental rights. The basic structure doctrine of the Indian constitution was born. The Apex court of India decided that “[t]his [structure] cannot by any form of amendment be destroyed” (at paragraph 303), which is comprised of the supremacy of the Constitution; the republican and democratic forms of government; the secular character of the Constitution; the separation of powers between the legislature, the executive and the judiciary; and the federal character of the Constitution (at paragraph 302). As noted by Sudhir Krishnaswamy, “Since that ruling, the [basic structure] doctrine has been used by the Supreme Court in several significant constitutional law cases not all of which relate to constitutional amendments.”^[5]

Likewise, the Supreme Court of Canada in the landmark decision Reference re Secession of Quebec [1998 (2) SCR 217], also recognized constitutionalism and the rule of law, democracy and federalism as foundational principles whereas the same court stated – which should be distinguished from what was stated in Kesavananda Bharati v. State of Kerala and also from the fact that “the Indian version of secularism differs from the American or the European model”^[6] – that “the Canadian Constitution does not insist on a strict separation of powers” (at paragraph 15). In addition, rather than providing for the secular character of the Constitution, the Supreme Court of Canada decided, in the decision Syndicat Northcrest v. Amselem [2004 (2) SCR 551], that “the State is in no position to be, nor should it become, the arbiter of religious dogma” (at paragraph 50).

In spite of their few differences that do not make every single core foundational principle of both countries identical, it remains true that their proximity is confirmed. To make an analogy with the world of fruits, the foundational constitutional principles of both countries may be different apples, Ber, Wax, Wood, Cashew apples, etc., but they are still apples.

Asymmetrical Federalism

Secondly, with respect to the division of powers in federal States in general, Louise Tillin notes that “Asymmetry – the granting of differential rights to certain federal sub-units, and the recognition thereby imparted for distinct, territorially concentrated ‘ethnic’ or ‘national’ groups – is a common feature of federalism in pluri-ethnic or pluri-national settings.”^[7] More specifically, she recalls that “the Supreme Court [of India] has upheld the constitutionality of asymmetric arrangements that allow for the protection of group rights in certain territories”.^[8]

Likewise, Canada being a multicultural State may have made Charles Taylor, a famous Canadian philosopher, state that real equality means that certain groups will have the right to be recognized in their difference^[9], then causing de facto an asymmetry in the recognition of their rights.^[10] The most prominent example of asymmetric federalism in Canada is that the Supreme Court Act provides that three of the nine judges of the Supreme Court of Canada must be appointed “from among the judges of the Court of Appeal or of the Superior Court of the Province of Quebec or from among the advocates of that Province” (See also Reference re Supreme Court Act, ss. 5 and 6, [2014] 1 SCR 433).

Language Rights

Thirdly, Sujit Choudhry, a renowned Canadian professor of law of Indian origin, comments on Indian constitutional law as follows: “Studying the constitutional politics of official language status is necessary to come to grips with the Indian constitutional experience. In addition, the constitutional politics of official language status provides insights into the broader forces shaping Indian political development.”^[11] Not surprisingly, and also because “the importance of language rights is grounded in the essential role that language plays in human existence, development and dignity” (Reference re Manitoba Language Rights, [1992] 1 SCR 212, at p. 744:), the exact same statement could have been made about Canada, with the slight distinction that Canada is not only officially a bilingual country that includes different ethnic minorities living side by side, but it is also a country where “bilingualism is coupled with the co-existence of two different legal systems”^[12], the common law and the civil law system. Figuratively, to illustrate the differences with the legal system in Québec, one of the ten Canadian provinces where French is predominantly spoken, the former Chief Justice of Québec, the Honorable Michel Robert writes: “When I asked my researcher, lawyer Sébastien Lafrance, to find me an image to express this reality, he suggested ‘pâté chinois’! So, the pâté chinois (literally Chinese pie… but called ‘shepherd’s pie’ in English) has three ingredients: first the mashed potatoes – you know or you remember Mr. Parmentier; I think he was a Frenchman who popularized the use of potatoes for human consumption. At the bottom of this pie is the minced beef of Lord Sandwich, who invented what we eat every day and which is named after him. And between the two, there is a very American ingredient – the corn – which is the aboriginal contribution to our legal system and which binds both the French part and the English part. So that our French friends from France aren’t totally lost with this pâté chinois, because the name isn’t common in France, I have reproduced something that is found more commonly in France and which is called hachis parmentier, which is very similar to pâté chinois; however, you will notice that there is no corn in hachis parmentier” (Actes du Conseil de la Magistrature, 2008, at p. 23:). Having said that about the specificity of the hybrid characteristics of the Quebec system of law, let us recall, for the purpose of clarity, that “there is only one criminal law for all Canada and for all Canadians” (R. v. J.S.B., [1985] 3 C.N.L.R. 121 (N.W.T.S.C), at p. 125, cited in R. v. Kahpeechoose, 1997 CanLII 17198 (SK PC), at paragraph 20:).

Conclusion

The author respectfully submits, in light of the few similarities identified in broad terms above between the Indian and Canadian constitutional law, that both the academia and law practitioners of these countries, commit to more extensive collaboration with each other not only for the benefit of the legal science, but also for the sake, to a greater extent, of the evolution of justice as a whole. For example, the solution proposed by one legal system to a specific constitutional law issue could potentially, on some occasions, perfectly fit in the other legal system; or, if not, it could give an example of the rationale used to find a solution to a similar or identical issue, which could eventually constitute a great source of inspiration either for the law practitioner or the judicial decision-maker. The author believes that this would be of great assistance on the challenging and sometimes perilous road leading to justice. The Rubicon should be crossed, together.

[This post has been authored by Sébastien Lafrance. Sébastien is a Crown Counsel (Prosecutor) at the Public Prosecution Service of Canada. He is a professor of law at Université Libre d’Haïti and a former part-time professor of law at University of Ottawa (2010-2013). He is a former clerk for the Honourable Marie Deschamps of the Supreme Court of Canada (2010-2011) and former clerk for the Honourable Michel Robert, Chief Judge of the Quebec Court of Appeal (2008-2009)]

References

1. Martha A. Field, ‘The Differing Federalisms of Canada and the United States’, (1992) 55 Law & Contemp. Probs. 107, at pp. 114-115. ↑

2. Isabelle Gilles, Lessons from India’s Constitutional Culture: What Canada Can Learn, Faculty of Law, LLM Thesis, McGill University, 2012, at p. 10. ↑

3. Mark Tushet, ‘Some reflections on method in comparative constitutional law’ in Sujit Choudhry (ed.), The Migration of Constitutional Ideas, Cambridge University Press, 2006, at p. 67. ↑

4. Ibid. ↑

5. Sudhir Krishnaswamy, Democracy and Constitutionalism in India, Oxford University Press, 2009, at p. 2. ↑

6. Ronojoy Sen, ‘Secularism and Freedom of Religion’, at p. 1, in Sujit Choudhry, Madhav Khosla and Pratap Bhanu Mehta (eds), The Oxford Handbook of the Indian Constitution, Oxford University Press, 2016. ↑

7. Louise Tillin, ‘Asymmetric Federalism’, at p. 2, in Sujit Choudhry, Madhav Khosla and Pratap Bhanu Mehta (eds), The Oxford Handbook of the Indian Constitution, Oxford University Press, 2016. ↑

8. Ibid., at p. 4. ↑

9. Charles Taylor, ‘The Politics of Recognition’ in A. Gutmann (ed.), Multiculturalism, Princeton University Press, 1994, at p. 25. ↑

10. For a more detailed discussion of linguistic rights of minorities in India and Canada, see Shruti Bedi and Sébastien Lafrance, ‘The Linguistic Diversity of Pluralist Cultures: Comparing the Status of Linguistic Minorities in India and Canada’ in Santoshi Haldar, ed., Diversity and Inclusion: Designing and Implementing Inclusive Education in International Contexts, Springer International, (Forthcoming) 2021. ↑

11. Sujit Choudhry, ‘Language’, at p. 2, in Sujit Choudhry, Madhav Khosla and Pratap Bhanu Mehta (eds), The Oxford Handbook of the Indian Constitution, Oxford University Press, 2016. ↑

12. Riccardo De Caria, ‘The Case Law of the Supreme Court of Canada on Minority Linguistic Rights: An Attempt to Disseminate Charter Patriotism, and Its Inconveniences’, CDCT working paper 5-2012 European Legal Culture, 1-90, 2012, at p. 7. ↑