Encouraging a strong judicial exchange between diverse systems is crucial in
this age of legal globalization, especially for those systems that hold common
beliefs and ideals. Although the Indian Supreme Court isn't obligated to comply
with any foreign rulings, they can be highly persuasive and serve as valuable
references for courts. It's important, however, to assess these foreign
precedents against India's domestic laws and legal processes, as well as the
practical challenges of litigation in the Indian legal framework.
The Indian legal landscape can be enriched through the exchange of ideas and
insights from different legal traditions and jurisdictions. This
cross-pollination of legal principles fosters innovation in legal reasoning and
addresses complex legal issues, guaranteeing the adaptability and receptiveness
of the Indian legal system to international legal developments. Formulated from
a global standpoint, it adds to the establishment of a well-rounded and
all-encompassing collection of legal precedents.
Looking at foreign legal precedents requires caution and insight for Indian
court cases. We must be prudent and ensure that any foreign decisions fit with
the principles and ideals of the Indian legal structure. It's not simply a
matter of copying other countries' legal principles, but we have to carefully
choose which foreign experiences we can use to help develop the Indian legal
system to meet the requirements of our unique features. This method will
reinforce the authenticity of India's legal customs while still permitting them
to adjust as the world becomes more connected.
In 2008, Northwestern University attendees received a lecture from the then
Chief Justice of India K.G. Balakrishnan, who stressed the value of employing
overseas legal precedents in certain categories of appellate litigation and
Using this strategy enables judges and legal experts to gain a more
comprehensive understanding when encountering complicated legal dilemmas and
bridge gaps in domestic law. Additionally, it allows them to compare disparate
legal systems and gain inspiration. The manner in which these foreign precedents
are incorporated can differ based on a country's attitude towards external legal
influences and its legal culture.
Impact of Foreign Courts' Judgments
From the beginning, Courts in independent India have repeatedly relied on
decisions from other common law jurisdictions, mostly of the United Kingdom,
United States of America, Canada and Australia. The opinions of foreign courts
have been readily cited and relied on in landmark constitutional cases dealing
with questions of law.
A few cases of impact of foreign courts' judgments on Indian Supreme Court are
- The importance of the right to travel as a fundamental right under the
Indian Constitution was highlighted in the Maneka Gandhi v. Union of India case by the
Supreme Court of India in 1978. The Indian court's stance on the right to travel
was shaped by a foreign court judgment that greatly influenced it. The U.S.
Supreme Court case Kent v. Dulles recognized a citizen's "liberty" to travel as
a fundamental right under the Fifth Amendment, which cannot be taken away
without legal procedures. This position is reinforced by the judgment of Maneka
Gandhi case, which invoked a foreign court judgment to assert the integral
nature of personal freedom with the right to travel. Nonetheless, the degree to
which this freedom can be restricted still remained uncertain.
- The Supreme Court of India studied different court judgments from abroad
to effectively express the Basic Structure Doctrine and the restraints on
the Indian Parliament's amendment ability in Keshavananda Bharati v. State of Kerala
(1973). The verdict mentions the idea of unstated barriers on modification
powers from various international domains, such as the U.S. Supreme Court's
rulings and other countries' courts. Although specific overseas cases are not
mentioned, the ruling focuses on the universal concepts and worldwide
recognition of the limitations to constitutional amendment powers, rather than
creating an all-inclusive list of foreign instances.
The Indian Supreme Court's stance on the Basic Structure doctrine in Kesavananda
Bharati v. State of Kerala and Anr. was uncompromising. Any queries regarding
ambiguity or lack of clarity were dismissed. Apparently, the mere inability to
enumerate all fundamental components of the doctrine was of no consequence.
According to the court's judgment, the said components are evidently in
existence. "I would regard opinions that suggest natural justice is practically
meaningless in modern times as tainted by a perennial fallacy," observed Sikri
C.J., quoting Lord Ried from Ridge v. Baldvin.
- The Supreme Court's ruling in M.H. Hoskot v. State of Maharashtra utilized
American precedents to establish that impoverished individuals were entitled to
free legal assistance. The concept of 'substantive due process' was construed to
imply that free legal aid was a critical aspect of criminal justice and falls
under the purview of Article 21. This decision was reinforced in Khatri v. State
of Bihar, where the Court held that the government could not cite a shortage of
funds as an excuse to deny legal services to destitute individuals.
in the case of M.H. Hoskot v. State of Maharashtra quoted the United States
Supreme Court ruling of 1972 on John Richard Argersinger v. Raymond Hamlin,
recognized as Argersinger v. Hamlin, which observed that legal representation is
crucial for guaranteeing fairness in criminal proceedings, regardless of the
severity of the allegations. In fact, it's now considered a landmark ruling that
has substantially broadened the right to counsel in criminal cases. Article 8 of
the Universal Declaration on Human Rights and Article 14 (3) of the
International Covenant on Civil and political Rights were also referred to in
the case of M.H. Hoskot v. State of Maharashtra.
- The Indian Supreme Court delivered a momentous verdict in the Vellore
Citizens Welfare Forum v. Union of India (1996) case. It underscored the
importance of the 'Precautionary Principle' and 'Polluter Pays Principle' in the
country's environmental law, contributing significantly towards sustainable
development. The court's allusion to the Australian High Court's ruling in Mabo
v. Queensland (No 2) (1992) 175 CLR 1 added to the discourse on
intergenerational equity relating to environmental issues. The doctrine of terra
nullius, which essentially meant that Australia belonged to no-one, was rejected
by the Mabo decision in Australia. This decision reshaped land law in Australia
and introduced the legal doctrine of native title. In India, an Australian
ruling was used as a reference to promote the notion of intergenerational equity
in environmental jurisprudence.
- Several foreign court judgments were used as persuasive authority in NALSA v.
Union of India (2014) by the Supreme Court of India. Upholding the dignity of
transgender individuals was recognized by the court, citing decisions from other
countries and US jurisdictions to support their legal principles. Even foreign
court cases and international instruments like the Yogyakarta Principles were
included to back the court's stand on upholding the rights of transgender
individuals. On April 15, 2014, a two-judge bench, including Justice K.S.
Radhakrishnan and Justice A.K. Sikri, made the ruling in NALSA v. Union of
India. However, Justice Sikri expressed his views separately and added remarks.
The ruling was a landmark decision that took cues from similar judgments in
Malaysia, Pakistan, New Zealand, Australia, and England to ensure that
transgender people's rights are acknowledged.
- The Indian Constitution's fundamental right of speech and expression was
the focus of the Supreme Court's attention in the Shyam Narayan Chouksey v. Union of
India (2017) case. Accounting for a particular case ruling, in Texas v. Johnson,
from the U.S. Supreme Court was part of what they deliberated.
Burning the American flag in protest was the topic of Texas v. Johnson, which
surveyed the grounds of political expression. A law in Texas deemed the
defacement of the flag a crime, but the U.S. Supreme Court decided on the
legality of this issue. The First Amendment shields the act of burning the flag
as an expression of individuality and the court upheld this decision in Gregory
Lee Johnson's case. Free speech preservation necessitates the utmost importance
of one's expressive capacity.
- Examining the death penalty's legality, the Supreme Court of India
referenced the U.S. Supreme Court's Furman v. Georgia ruling during Bachan Singh v. State
of Punjab in 1982.
In Furman v. Georgia, the Supreme Court declared capital punishment's
consistency and fairness unlawful. Consequently, the United States relinquished
its temporary employment of the death penalty. This judicial milestone marked a
pivotal shift in the nation's attitude towards capital punishment.
The convergence between the U.S. and Indian Supreme Courts during the Bachan
Singh case was intriguing, particularly regarding Furman v. Georgia and the
death penalty. Both institutions acknowledged the vital role of impartiality and
justice in administering capital punishment. The Court emphasized its plan to
declare the death penalty unconstitutional if it was proven to be utilized
unfairly or with bias, according to a per curiam opinion. It was determined that
using the death penalty proved to be unjustly harsh on individuals from diverse
ethnic backgrounds and disadvantaged communities.
In order to maintain impartiality and prevent chance features from interfering,
the death penalty was kept in India through the outcome of the Bachan Singh
The impact of foreign judicial views on the Indian Supreme Court's decisions is
exemplified by this citation of a foreign court's judgment. It serves as
testimony to how complicated and delicate areas like the death penalty can be
significantly affected by international legal perspectives and rulings.
- The Indian Supreme Court's momentous ruling in Justice K.S. Puttaswamy (Retd.)
v. Union of India (2017) relied on various foreign court decisions. Echoing the
sentiment of the American court's verdict, the Indian court drew inspiration
from the Griswold v. Connecticut (1965) decision. The draconian nature of the
Connecticut contraception law infringed on the privacy of married couples and
was deemed unconstitutional by the Indian judiciary. Using the helpful framework
provided by the Griswold verdict, the Indian court arrived at its ruling without
explicitly referring to it.
Privacy rights were recently established as a fundamental right in the Indian
Constitution, following the example of the U.S. Supreme Court and their landmark
case of Griswold v. Connecticut. This critical moment in history occurred in
1965 and focused on the importance of privacy rights regarding marriage and
contraception. Interestingly, the Indian Supreme Court's ruling, although not
explicitly citing Griswold v. Connecticut, was seemingly heavily impacted by
this previous decision. Consequently, this outcome marks a significant milestone
for privacy rights in India.
In India, the Puttaswamy case was key in establishing and safeguarding the right
to privacy, drawing mainly on Indian legal principles and jurisprudence but also
acknowledging international legal perspectives. The conversation on privacy
rights in India was shaped by international cases like Griswold v. Connecticut,
leaving a noticeable impact.
- Various foreign court decisions managed to play a role on the verdict of
the Navtej Singh Johar v. Union of India (2018) by the Supreme Court of India,
including the Lawrence v. Texas (2003) case from America. This case carried
tremendous importance as it is applicable to the Indian context regarding the
decriminalization of same-sex activities. By unanimous decision, India's Supreme
Court has ruled that Section 377 from the Indian Penal Code of 1860 is
unconstitutional. This clause once classed same-sex adult consensual physical
interaction as "carnal intercourse against the order of nature," thus rendering
- Established as a result of the Schenck v. United States case in 1919, the
'clear and present danger' criteria has been utilized by the Indian Supreme
Court in various cases concerning 'freedom of speech and expression', often with
reference to the First Amendment of the US Constitution. This case saw the
necessity of limiting speech since it had the potential to harm society.
example demonstrating this idea is Indian Express Newspapers v. Union of India,
where the Court established that imposing a tax on newspapers went contrary to
people's constitutional liberties to free speech and press. The principle of
freedom of expression was reaffirmed in the case of Rangarajan v. Jagjivan Ram
and Union of India. This occurred when a government-imposed ban on a film
criticizing the caste-based reservation policy in public employment was
challenged. The case highlighted situations where the right to freedom of
speech, guaranteed by the First Amendment, may be subject to limitations.
The reliance on foreign precedents during India's early years of the Supreme
Court has gradually decreased with the emergence of a body of local precedents.
However, the heavy dependence on foreign precedents in the past has been
essential to establishing the current judicial system. Nevertheless, it is worth
noting that foreign case citations are on the rise in the current judicial
It is entirely reasonable to consider foreign precedents within the
context of an increasingly globalized world. There are two reasons why caution
is advised when judges employ foreign decisions. Initially, there is the
potential for cherry-picking if judges selectively reference decisions that
match their own viewpoints, leading to a flawed examination of domestic
precedents. Additionally, if foreign constitutional principles are transplanted
without proper care and consideration, it can be problematic.