Sunday, September 11, 2016

Australian Correspondence: Lessons for ‘Trade and Commerce’ in India from Cole v Whitfield


As Vikram has previously noted, Part XIII of the Indian Constitution (regarding trade, commerce and intercourse within India) has once again arisen for interpretation. These provisions draw upon (but are not precisely equivalent to) section 92 of the Australian Constitution, which reads as follows:
On the imposition of uniform duties of customs, trade, commerce, and intercourse among the States, whether by means of internal carriage or ocean navigation, shall be absolutely free.

But notwithstanding anything in this Constitution, goods imported before the imposition of uniform duties of customs into any State, or into any Colony which, whilst the goods remain therein, becomes a State, shall, on thence passing into another State within two years after the imposition of such duties, be liable to any duty chargeable on the importation of such goods into the Commonwealth, less any duty paid in respect of the goods on their importation.

The brevity of the clause belies the heat and contention that has accompanied its interpretation. At his retirement in 1952, Chief Justice John Latham (himself a deeply conservative figure and former Opposition Leader) declared (in light of the trouble and controversy that the section had caused lawyers and judges alike) that '[w]hen I die, s. 92 will be found written on my heart': (1952) 85 CLR ix. In the same year, Geoffrey Sawer observed that s 92 had ‘caused more differences of judicial opinion and greater conflict between decisions than any other provision of the Constitution’ (cited in Buck v Bavone (1976) 135 CLR 110) – arising, in large part, from the charge that the section had been employed to frustrate attempts at economic regulation in Australia (by federal and state governments alike), serving as ‘the bulwark of private enterprise’ and an impediment to socialist reforms.

That is to say, Australia’s equivalent to article 301 of the Indian Constitution was both interpreted more broadly than article 301 itself (with s 92 at one stage afforded the de facto status of an ‘individual right’, rather than a mere constraint upon particular exercises of state power) and was, in large part, not subject to the constraints imposed by articles 302 and 304. There are hence differences both in terms of text and political climate (with the latter contributing to the ‘individual rights’ theory of the clause employed in mid-20th century Australia), both of which must be given substantial regard in any attempt to employ Australian caselaw or Australian understandings of the guarantee to its Indian equivalent. (Vikram has previously criticised over-reliance on Australian cases in this regard. As flattering as it was for me to arrive at NLSIU and meet students who were more familiar with Australian caselaw than their counterparts in Sydney might have been, there are definite limits to comparativism in this regard.)

In recent decades, a relative ceasefire has prevailed in Australia regarding section 92 after decades of contention (albeit with some continued controversy). This owes, in large part, to the High Court of Australia’s unanimous decision[1] in Cole v Whitfield (1988) 165 CLR 360. This post briefly examines the potential salience of the High Court’s decision in Cole v Whitfield to the interpretation of Part XIII, in terms of methodology and substance.

Cole v Whitfield concerned a challenge to a clause of the Sea Fisheries Regulations 1962 (Tasmania) prohibiting the taking or possession of undersized fish. The respondents were charged (in Tasmania) with the possession of undersized crayfish imported from South Australia. The Court noted (at 384-385) that ‘judicial exegesis of [s 92] has yielded neither clarity or meaning nor certainty of operation’, despite approximately 140 decisions of the High Court and Privy Council on its interpretation. In reconsidering its approach, the High Court had regard (exceptionally and unusually, from an Australian standpoint) to the history of the drafting of the section, including the political and economic climate at the time of Australia’s Federation, late-19th political divides over ‘protectionism’ between the Australian colonies, and debates at the Constitutional Conventions (at 385-391). The Court’s conclusion (at 391) as to the purpose of the section – ‘to create a free trade area throughout [Australia] and to deny to [the Central government] and States alike a power to prevent or obstruct the free movement of people, goods and communications across State boundaries’ – is presented both as the product of this political and drafting history and as justification for departure from the failed interpretive models of the past.

The eventual model arrived at – which may be summarised (as at 400) as the prohibition of ‘interstate border duties and other burdens of a discriminatory kind’ – may appear relatively simple, but amounted to a substantial departure from eighty years’ worth of controversy, discarding failed models of the section as a guarantee of individual rights or by reference to the ‘criterion of operation’ of laws impugned.

What lessons can be learned from the Australian experience? First, method. The unanimity of the justices was matched, to an unusual degree, by unanimity among the States and Central government (appearing as interveners in the hearing), whose Solicitors-General ‘grasped the nettle and decided to present a united front’ in seeking a new approach.[2] The decision itself drew upon both existing disenchantment with orthodoxy (or the lack of any accepted interpretation) and upon scholarly critiques, particularly those of Michael Coper (who appeared as junior counsel for NSW during Cole v Whitfield). Within the relatively staid, traditionalist environment of Australian constitutional law, Cole v Whitfield represents something of a revolution; it is telling (and instructive if any similar, lasting shift is sought in India) that the revolution occurred amid relative consensus as to the undesirability of the existing model, and was able to command and draw upon historical and legal scholarship. Cole v Whitfield hence both prefigured an end to partisan contestation over the meaning of the section and grew from a consensus among governments of all ideological stripes that something must be done. India’s ‘jungle of jurisprudence’ concerning Part XIII may ultimately be susceptible only to a similar moment of consensus.

In terms of the outcome reached, I emphasise, again, the textual differences between the Australian and Indian clauses (despite their genealogical relationship). This difference is relevant both insofar as the unique restrictions upon article 301 in the Indian context ought to lead to different results and in that the words of section 92 and Part XIII are (as the High Court emphasised in Cole v Whitfield) the results of particular historical and political contexts. If nothing else, the Indian Supreme Court may, in considering Cole v Whitfield (and its emphasis upon historical context), judge that the Australian provision is the product of unique Australian conditions and that precedents emerging from that context should be weighed in light of the very different political and historical exigencies prevailing in India.

The revolution in Australian constitutional law represented by Cole v Whitfield should not, however, prove effective solely within Australia, just as prior Australian decisions were not restricted in their influence to this nation. To the extent that prior Australian orthodoxies (and efforts to evade those orthodoxies, including the notion of ‘compensatory tax’) have been taken into account by the Supreme Court – as in Automobile Transport (Rajasthan) Ltd v State of Rajasthan, in which the Court cited and drew upon Australian caselaw even while cautioning as to the limits of comparative experience – the Supreme Court must reckon to the extent to which its precedents have been shaped by understandings of section 92 that no longer hold true even in that section’s birthplace.


[1] Unanimous judgments of all seven judges of the High Court are relatively rare: see e.g. Lynch and Williams (2015).
[2] Michael Coper, ‘Cole v Whitfield’ in Blackshield et al, The Oxford Companion to the High Court of Australia (2003) 108.
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