Impact of Foreign Law on Domestic Judgments

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:

• First, through vertical means, i.e., when domestic courts refer to the decisions of international adjudicatory institutions, irrespective of whether their countries are parties to the international instrument under which the said adjudicatory institution functions. For example, the decisions of the European Court of Human Rights and European Court of Justice have been extensively cited by courts in several non-European Union countries as well. This also opens up the possibility of domestic courts relying on the decisions of other supranational bodies in the future.
• Secondly, through horizontal means, i.e. when a domestic court looks to precedents from other national jurisdictions to interpret its own laws. In common law jurisdictions where the doctrine of stare decisis is followed, such comparative analysis is considered especially useful in relatively newer constitutional systems which are yet to develop a substantial body of case law. For example, the Constitutional Courts set up in Canada and South Africa have frequently cited foreign precedents to interpret the bill of rights in their respective legal systems. Comparative analysis is also a useful strategy to decide hard constitutional cases, where insights from foreign jurisdictions may insert a fresh line of thinking.
• Thirdly, through mixed vertical-horizontal means, i.e. when a domestic court may cite the decision of a foreign court on the interpretation of obligations applicable to both jurisdictions under an international instrument. For example, courts in several European countries freely cite each other’s decisions that deal with the interpretation of the growing body of European Community law. It is reasoned that if judges can directly refer to applicable international obligations, they should also be free to refer to the understanding and application of the same in other national jurisdictions.

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 –

1. Right to privacy: The Supreme Court in a recent judgment passed in the case of ‘Justice K.S. Puttaswamy (Retd) vs Union of India [Writ Petition (Civil) no. 494 OF 2012 decided on 24th August, 2017] declared that the Right to Privacy is a Fundamental Right. The Apex court made reference to many U.S. judgments while coming to the conclusion.
2. Declaring Section 66A of the Information Technology Act, 2000 as unconstitutional: The Supreme Court in the case of ‘Shreya Singhal vs. UOI [Writ Petition (Criminal) no.167 OF 2012 decided on 24th March, 2015] declared Section 66A of the Information Technology Act, 2000 as unconstitutional. While reaching to the conclusion the Apex Court noted the difference in law regarding free speech in the US and India, it said, “It is significant to notice first the differences between the US First Amendment and Article 19(1)(a) read with Article 19(2). The first important difference is the absoluteness of the U.S first Amendment – Congress shall make no law which abridges the freedom of speech. Second, whereas the U.S. First Amendment speaks of freedom of speech and of the press, without any reference to “expression”, Article 19(1)(a) speaks of freedom of speech and expression without any reference to “the press”. Third, under the US Constitution, speech may be abridged, whereas under our Constitution, reasonable restrictions may be imposed. Fourth, under our Constitution such restrictions have to be in the interest of eight designated subject matters – that is any law seeking to impose a restriction on the freedom of speech can only pass muster if it is proximately related to any of the eight subject matters set out in Article 19(2).”
3. Restraints on foreign travel: ‘Maneka Gandhi v. Union of India [AIR 1978 SC 597]’ – The Apex court’s decision heavily drew from U.S. decisions and laid down the position that governmental action is subject to scrutiny on multiple grounds such as fairness, reasonableness and non-arbitrariness.
4. Freedom of press: ‘Bennett & Coleman v. Union of India [AIR 1973 SC 106]’ – The Apex court relied on the U.S. Supreme Court’s decision in Kovacs v. Cooper.
5. Constitutionality of the death penalty: ‘Bachan Singh v. Union of India [AIR 1980 SC 898]’ – the Apex court while upholding the death sentence, relied on the U.S. cases of
6. Furman v. Georgia, Arnold v. Georgia, and Proffitt v. Florida.
7. In M.H. Hoskot v. State of Maharashtra [AIR 1978 SC 802] the Supreme Court explicitly relied on American decisions to hold that indigent persons were entitled to receive free legal services.

and many more.

Conclusion

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.

1. Slaughter, The Typology of Transjudicial Communication, 29 U. RICHMOND L. R. 99 (1994).