Functioning and Constitutional Reasoning: Comparing French, German and Indian ‘Constitutional’ Courts

 

In civil law tradition, law is a very specialized discipline. As opposed to common law tradition in which the courts have general jurisdiction, courts in civil law have narrow and specific jurisdiction. In most of the civil law countries of Western Europe except the Netherlands and the Nordic countries, the power of constitutional review is exercised by a single judicial body typically called a constitutional court (also ‘constitutional tribunal’ or ‘constitutional council’).^[i] As per the Kelsenian model, a constitutional court has only moderate powers of judicial review and is also not very insulated from the influence of political actors.^[ii] However, after the horrors of totalitarianisms, constitutional court now enforces the fundamental rights which in turn provide a wide range of opportunities to engage in the judicial review of legislations. In this regard, they have become notably more powerful than they were meant to be in Kelsen’s initial plan.^[iii]The German Federal Constitutional Court (Bundesverfassungsgericht) was the first entirely new constitutional jurisdiction established in post-war Europe.^[iv]It is the final authority to determine and be responsible for the interpretation of the Basic Law. However, the Basic Law doesn’t lay down any procedure for how the interpretation is to be done.

Although the founding fathers of the Fifth Republic did not intend to establish a constitutional court on the German model^[v], France developed its Constitutional Council (Conseil Constitutionnel) into a genuine constitutional jurisdiction.^[vi] The idea for creating the Councilwas not to protect the rights and the freedom of the people rather to check the encroachment of the executive upon the legislature and vice versa. However, the Council’s review powers were enlarged by the 2008 constitutional revision which introduced a system of preliminary referral bringing the French model closer to the institutional configuration of other European constitutional courts. As opposed to jurisdictions having concrete review (like India), where any judge can refer a constitutional issue directly to the constitutional tribunal or court, France has a referral mechanism “question prioritaire de constitutionnalite” which has been characterised as “filtered concrete review”.^[vii] It only has jurisdiction to review a statute before it has been promulgated (preventive review) except for the disputes related to the distribution of law-making competences between the parliament and the cabinet.^[viii] However, the Council has arrogated to itself the right to raise constitutional issues suaspontewhen the litigants elect to challenge only a fraction of the provisions contained in a referred bill.^[ix]

In India, which is often considered as a common law country, the Supreme Court has jurisdiction in all matters and is arguably the most powerful court in the world.^[x] Unlike the above constitutional courts, the Supreme Court does not grant time to the legislature to correct the violation of constitutional norms and strikes it down immediately. As an ordinary court having jurisdiction to try all kinds of matters, the Supreme Court is over-burdened with cases, to tackle which there is a docket management system.^[xi] The Constitution makers posed their trust on an independent and impartial judiciary which is the ultimate guarantor of fundamental rights. In Germany too, the idea of judges being professionals was quite explicit for almost two to three centuries which was not the case in France where there was distrust towards the judges which led to the establishment of a ‘weak’ court which have reservations about to what extent judges can have a say in interpretation of laws.

Constitutional reasoning of the courts

In India, the judgment of the Supreme Court has both the formalist and policy discourse in the same document as opposed to France, where the decision-making has two parallel portraits. The official portrait is the one expressed in the laconic, rigidly formalistic opinion of the council whereas the non-official portrait offers a much more realistic picture of adjudication which includes the considerations of policy, consequentialist reasoning and the repercussions of past, present and future decisions.^[xii] The Supreme Court is the protector of the fundamental rights enshrined under Part III of the Constitution of India and reinforces the rule of law in the country. Although the German Federal Court was initially conceived as an ordinary court guarding the organizational divisions between the different governmental branches,^[xiii] it gradually developed the indirect horizontal effect of constitutional rights with the expansion of its jurisdiction under Article 2GG of the Basic Law as a broad residual right to liberty.^[xiv] The German concept of Rechtsstaat which is somewhat distinct from the rule of law is typically employed as a basis for procedural rights.^[xv] The French Constitutional Council can be differentiated from the above two courts as the principles of fundamental rights as an inviolable core and the rule of law are absent from its conceptual repertoire.

In India, the law declared by the Supreme Court is the law of the land and is binding on all the courts. This is the same in the Federal Court as their rulings are binding on the other courts in matters of law. But instead of precedents, it follows massseab which includes previous jurisprudence and constitutes academic doctrines. This is different from the Indian position as precedents provide an idea about how the court is going to approach a particular issue which is not the case in Germany where there is no certainty as the court can approach it in a different manner too. As opposed to the Federal Court and the Supreme Court, the Council does not cite scholarly works, foreign legal material, international law norms, decisions by foreign courts, etc. even on the interpretation of the constitutional provisions. The Council does not normally cite its own rulings or those of other domestic courts.^[xvi]

However, both in India and Germany, reference to foreign legal material has only persuasive value and is not a decisive factor. The decisions of the Federal Court are usually considerably longer than those of the Council and are written in legal jargon with an audience of lawyers rather than laypeople in mind.^[xvii] The focus is on the scientific reference to law and the rhetoric arguments are generally absent. The decisions of the Supreme Court are even lengthier than those of the Federal Court.^[xviii] As opposed to the exhaustive decisions of the Supreme Court and the Federal Court, an opinion of the Council is a summary of the outcome rather than a reasoned and candid essay.^[xix] The role of the opinion is to apply settled law to create the appearance that the court is merely applying law to the fact. It has been argued that the decisions of the Council are certainly closer to the decision making style of the European Court of Justice than to that of the German Constitutional Court.^[xx]

The Council uses deductive logic and follows pseudo-syllogistic form of reasoning. This perpetuates their image as neutral as they are deciding on the merits. On the other hand the Federal Court follows a syllogistic style of argument where they deduce and identify the relevant norms related to the issue. They usually go for general reasoning i.e. they just check and refer to the competency of the statute and don’t provide reasons, rather than multi-level reasoning. In France, constitutional law professors rarely criticise the decisions of the Council and the reasoning followed by it. In fact, when the Council comes under attack in the media, they often go out of their way to defend the institution and its members.^[xxi]This is not the case in India as the judgments of the Supreme Court are often criticised especially by the law professors and scholars.

Conclusion          

The functioning, jurisdiction and the reasoning of a court largely depend on its historical background. This can be argued in the case of the three countries. As opposed to the members of the Federal Court and the judges of the Supreme Court who have always enjoyed great reputation, there was distrust towards the members of the Council who were believed to be corrupt. The nature of a court depends on the provisions of the Constitution of the country. A court is not a ‘constitutional court’ merely by reason of it being established under the Constitution. Unlike the Federal Court and the Council, the Supreme Court is an ordinary court having jurisdiction in all matters.

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[i] Lech Garlicki, Constitutional courts versus supreme courts 5(1) Int’l J. of Const. L. 44-68, 44 (2007)

[ii]Pablo Castillo-Ortiz, The dilemmas of constitutional courts and the case for a new design of Kelsenian institutions, Law and Philosophy (2020).

[iii]V Ferreres Comella, The Consequences of Centralizing Constitutional Review in a Special Court: Some Thoughts on Judicial Activism 82Texas Law Review 1705-1736, 1728 (2004).

[iv]Id. at 50.

[v]AndrásJakab, The French Constitutional Council in Comparative Constitutional Reasoning 323-355, 324 (AndrásJakab, Arthur Dyevre&GiulioItzcovich eds., 2017).

[vi]Supra note 1.

[vii] Arthur Dyevre, Filtered Constitutional Review and the Reconfiguration of Inter- Judicial Relations 61 Am. J. of Comp. L. 729 (2013).

[viii]Fr. Const. art.37(2).

[ix]Thierry Di Manno, Le Conseil constitutionnel et les moyens et conclusions soulevesd’office (1994).

[x] G Gadbois, Supreme court decision making 1 Banaras Law Journal 10 (1974).

[xi] There is no such system in France.

[xii]Supra note 5 at 335.

[xiii] Michaela Hailbronner and Stefan Martini, The German Federal Constitutional Court in Comparative Constitutional Reasoning 356-393, 359 (AndrásJakab, Arthur Dyevre&GiulioItzcovich eds., 2017).

[xiv]Id. at 359.

[xv]Id. at 383.

[xvi]AndrásJakab, The French Constitutional Council in Comparative Constitutional Reasoning 323-355, 344 (AndrásJakab, Arthur Dyevre&GiulioItzcovich eds., 2017).

[xvii]Id. at 353.

[xviii]Supra note 13 at 381.

[xix]Michael Wells, French and American Judicial Opinions 19 Yale J. of Int’l L.81, 92 (1994).

[xx]Supra note 16 at 353.

[xxi]Id. at 330.

(Shantanu Pachauri is an LLM student from NLU Delhi)