Reliance on foreign precedents is necessary in certain categories of appellate litigation and adjudication.
Reliance on foreign precedents is necessary in certain categories of appellate litigation and adjudication. ~ Chief Justice K.G. Balakrishnan, The Role of Foreign Precedents in a Country’s Legal System, Lecture at Northwestern University (Oct. 28, 2008)
Indian legislation is under the strong influence of British and American law, and judges often rely on foreign court rulings, though the foreign judgments are only persuasive in nature and not authoritative, especially in cases related to the protection of human rights, privacy, gender justice, child custody, family related disputes, environment and litigation pertaining to cross-border business dealings.
Many features of the Indian Constitution are borrowed from different countries. Features like ‘Parliamentary government’, ‘Rule of Law’, ‘Legislative procedure’, ‘Single citizenship’, ‘Prerogative writs’ are taken from Britain. Features like ‘Impeachment of the president’, ‘Functions of president and vice-president’, ‘Removal of Supreme Court and High court judges’, ‘Fundamental Rights’, ‘Judicial review’, ‘Independence of judiciary’ are taken from the U.S.A. ‘Concept of Concurrent list’ and ‘Freedom of trade and commerce’ are the features taken from Australia. ‘Directive Principles of State Policy’ are taken from Ireland.
As a result, it is imperative that the higher judiciary in India follow the precedents of foreign courts in clarifying the parameters of statutes applied. Courts are also required to review the text and interpretations of international instruments, e.g., treaties, conventions, and declarations. The Chief Justice of India K.G. Balakrishnan has once stated, “In recent years, the decisions of Constitutional Courts in common law jurisdictions such as South Africa, Canada, New Zealand and India have become the primary catalyst behind the growing importance of comparative constitutional law.”
In a much-cited article published in 1994[1], Anne-Marie Slaughter used the expression ‘trans-judicial communication’ to describe this trend and described three different ways through which foreign precedents are considered, namely:
The Indian Supreme Court often put reliance on foreign precedents in its decisions as it is well recognized how the protection of life and liberty guaranteed by Article 21 of the Constitution of India has evolved over the years.
From the beginning, Courts in independent India have repeatedly relied on decisions from other common law jurisdictions, the most prominent among them being the United Kingdom, United States of America, Canada and Australia. The opinions of foreign courts have been readily cited and relied on in many landmark constitutional cases dealing with questions such as –
and many more.
There is no principle of law which seeks to restrict a constitutional Court from referring to foreign judgments, yet the law itself demands that this exercise must proceed with caution, and carefully examine the structural similarities before applying the decision of a foreign Court to a domestic question.
Access to foreign legal materials has become much easier because of the development of information and communications technology. Thus, the Indian courts can more easily obtain and review foreign judgments and precedents for use in domestic law interpretations. However as held by the Supreme Court of India in catena of cases, for example in State of West Bengal vs. B.K. Mondal and Sons [AIR 1962 SC 779] that the assistance of such decisions is subject to the qualification that prime importance is always to be given to the language of the relevant Indian Statute, the circumstances and the setting in which it is enacted and more importantly the Indian conditions.
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