The most essential maneuver to be undertaken in the field of law is to develop
various administrative and judicial techniques to interpret the statutes. Courts
are always busy in the endeavor to unfold the meanings, expressions and removing
inconsistencies. Interpretation helps or rather opens the doors for the Court to
explore the possibilities beyond the words of the legislation or the statute
itself. In a way, interpretation of statutes has revolutionaries the legal
system in our country by constantly ameliorating the laws according to the
The general rule applied before interpretation of a statute is that prima facie
the statutes must be given an ordinary meaning. But if the meaning of the
provisions in the statutes is unclear, ambiguous, or cannot be understood in its
plain reading then the tools or aids of interpretation are resorted. There are
various tools or aids that are used to interpret the statues. These aids of
interpretation are broadly classified into:
- external aid and
- internal aid.
Internal aids are the aids that are found within the Act or Statute. For
instance, the title of an Act, headings or the titles prefixed to the provisions
in the Acts, punctuations, marginal notes, illustrations, the definition section
or any other tool that is within the Act itself constitutes an internal aid.
Whereas external aids are the ones that are found outside the Act, i.e foreign
judgments, international treaties, parliamentary history, historical facts, etc.
The Supreme Court in the case of B. Prabhakar Rao v. State of Andhra Pradesh
Where internal aids are not forthcoming, we can always have
recourse to external aids to discover the object of the legislation. External
aids are not ruled out.
“It has to be insisted that the aim and purposes of the legislative to enact a
law or a statute is an important guidepost for the statutory
interpretation.” This is where the external aids of interpretation enter the
picture. “It is important that the external aids be consulted not only for
making the choice between various possible meanings of the text itself, but in
checking up an apparently plain and explicit meaning, in finding other possible
meanings not apparent in the text, and in applying the chosen meaning to the
case at hand.”
While using extrinsic aids it is to be kept in mind that they
are to be applied to the Indian facts and circumstances especially when it comes
to the aid of foreign judgments. A blind application of a foreign judicial
decision will be detrimental to the purpose of interpretation.
Foreign Judgments As An Aid To Interpretation
Need, Relevance and
With the growing interconnectedness of the laws and treaties, Nations are
familiarizing themselves within the international platform by mutually agreeing
to cooperate, agree and follow. The text and interpretations of various
international instruments like the UDHR, Geneva Conventions, European
Conventions, etc. are being referred and borrowed by countries from the ones
that are party's to the same.
In this process the judiciary of one country may
borrow foreign judicial decisions of other nations or international adjudicatory
bodies to understand how they interpret the treaties a, laws, doctrines, etc.
However, there is not much debate when it comes to the use of foreign judgments
as a tool for interpretation while referring to international laws but there are
reservations when it comes to the domestic law.
The scientific, social, philosophical and economical changes that happen in a
nation are not always incorporated into or as legislations. To expect such
changes to reflect in the legislations would take a lot of time and often
involves, a huge procedure. Hence, we can say that the connection between the
social conditions and the legal standards is’nt always present. But when a
problem arrives at the doors of justice, the lack of a clear legal solution is
not relevant for the judges. In such a case the judiciary may use the decisions
of the foreign Courts where such a conflict or dispute was resolved. In today’s
changing times where very less problems are limited to a single country, which
is likely to have already arisen and been solved in other countries. The foreign
decisions may act as guideposts for the judiciary while deciding the case and
the direction it is going in.
Trans Judicial communication can be understood as the communication between the
judicial organs of different nations and organizations across the globe. Anne
Slaughter an international lawyer, political analyst and a political scientist
wrote an article on trans-judicial communication in 1994 where she described
the three different approaches that a Court can consider to use foreign
- Vertical means:
This approach is used when the courts refer to the decisions given by the
international institutions that adjudicate like the ICC,
ICJ, etc. whether or not their countries are in fact parties to that particular
adjudicatory institution functions.
- Horizontal means:
the domestic courts use the judicial decisions given by other nations to
interpret its own laws. Such borrowing of constitutional cases between the
nations will introduce a new line of thinking.
- Mixed horizontal and vertical means:
the domestic courts may cite foreign decisions from other nations with
respect to the interpretation of obligations applicable to both the
jurisdiction under international instruments or law.
To understand this in an easier way we can say that the judges directly
refer to the applicable international obligations and are also free to refer to
the decisions of the courts of the foreign nations to understand how those
nations interpreting and implementing the obligations are created by such
These are the three means of trans-judicial communication, by examining these
three means one can notice and understand how the reference to foreign law is
contemplated both in international and national law. More seeds are being sown
for more trans-judicial communication because of the growing trend of
internationalization of legal education. One more reason that is attributing to
this communication is the increase in the easy accessibility of foreign legal
material for the judges to refer to.
Significance Of Foreign Judgments: An Aid To Interpretation In India
Over the years Statutory Interpretations has clawed its way into the legal
consciousness of the Indian judiciary. It is often witnessed that the judiciary
in India refers to the foreign judgments given by the Courts of other Nations to
construct the statutes in our country. There is no denying that the major part
of law in India has been borrowed from the common law system.
independence, it was a common practice that the judiciary would borrow the
judgments decided in England and apply them in India for interpreting statutes.
But after independence with the introduction to our Constitution, the Supreme
Court started to lean on and gave more access to the precedents set by the
American and other Courts in the world.
Indian Courts have openly sought for
guidance from the foreign decisions in cases where similar disputes that arose
before our Courts were already dealt by foreign Courts. The Indian Constitution
draws inspiration from the Constitutions of many Nations like the United States,
Canada, Australia, etc. When a country’s Supreme Law is inspired from many
foreign nations then it is pertinent that the Indian judiciary would look for
guidance from these nations with regard to constitutional matters from these
nations. Ever since the promulgation of the Constitution in the year 1950, the
Indian Courts have often depended on the decisions of other common law
The Indian Judiciary in some of its most important landmark judgments used a
myriad of foreign decisions to interpret law, introduce doctrines and understand
the possibilities of adopting new ideas of approach.
The following are some of
the most prominent judgments that used and discussed about foreign judicial
decisions as an important aid of interpretation:
The Puttaswami judgment
Justice K S Puttaswami and Others v. Union of India and Others
 is a historic
judgment that reaffirmed the ‘right to privacy’ as a fundamental constitutional
right. The Court in this case held that ‘right to privacy’ is an integral part
of the fundamental rights guaranteed by the Constitution. The Court even made a
comparative analysis of the concept of privacy in other jurisdictions from
comparative law perspective and limited such an analysis to United Kingdoms,
United States, South Africa and Canada.
It also went on to examine the judicial
decisions made by the European Court of Human Rights, the inter-American Court
of Human Rights, etc. This probe of the Court was indicative of the fact that
the Apex Court wanted to be thorough with the way in which the concept of right
to privacy was pursued in various places across the globe based on the histories
of the societies they govern and the challenges before them.
Some of the important judicial decisions borrowed from the United Kingdom
include Semayne’s Case, Entrick v. Carrington, Prince Albert v.
Strange and many plethora of cases dealing with the right to privacy right
from the 17th century to the current day. From the United States cases from as
early as 1886 to the current day were explored, for instance, Boyd v. United
States, Griswold v. Connecticut, United States v. Miller, etc. While
studying the right to privacy in South Africa, the Supreme Court of India though
it fit to refer to cases such as National Media Ltd. v. Jooste where the
Court observed that the right to privacy is an individual condition of life;
Bernstein v. Bester and Ors where the Court held that the scope of privacy
can be closely associated or related to the concept of identity; NM and Ors. v.
Smith and Ors., among other cases. Some of the landmark cases referred to
from Canada include Her Majesty, The Queen v. Brandon Roy Dyment, R v.
This judgment can essentially serve as a comprehensive document that records
historical landmark cases from foreign countries, international bodies,
doctrines and laws related to the privacy laws. The essence of this decision
lies in the fact that the Indian Court was open to referring to foreign
decisions and use them to guide the Court in the right direction.
Navtej Singh Johar and Ors. v. Union of India
The Supreme Court through this case decriminalized homosexuality by saying that
the LGBTQ community has the same rights as that of any ordinary citizen and that
sexual orientation is an crucial aspect to privacy. In declaring this judgment
the Apex Court considered the International perspective of this issue and
studied the laws in the United States, Canada, South Africa, United Kingdom and
other Courts and Jurisdictions. The Court specially considered the decisions of
the foreign Courts in Law v. Canada, James Egan and John Norris Nesbit v.
Her Majesty The Queen in Right of Canada and Anr., Paris Adult Theatre I v.
Slaton, A.R. Coriel v. The Netherlands, etc. where the cases upheld the
right to privacy to individuals and reiterated that the choice of their sexual
identity is a very personal matter.
Moreover in cases like Ashok Kumar Thakur v. Union of India and Others where
the Court on record reiterated the importance of the foreign decisions for
interpretation and also the relevance and applicability of such foreign
decisions to the facts and circumstances of the domestic case must be kept in
mind before applying such foreign decision. The Honorable Judge in this case
stated that, “…the judges in every case must look into the heart of things and
regard the facts of every case concretely much as a jury would do; and yet, not
quite as a jury, for we are considering here a matter of law and not just one of
fact; Do these "laws" (foreign judicial decisions) which have been called in
question offend a still greater law before which even they must bow?”
In Forasol v. ONGC, General Electric Company v, Renusagar Power
Company and many other landmark cases the Court considered the foreign
decisions to have the persuasive value and used such decisions as a guiding
light while treading in new areas of law or existing ones.
The Use Of Foreign Decisions As An Aid To Interpretation By Different Nations: A Comparitive Analysis
Countries like Canada, South Africa, Nicaragua, India, France, Germany, England
and Wales are known to openly and often use foreign decisions as an aid to
interpretation. Over the years the constitutional systems in several nations
across the globe, especially the ones that follow a common law legal system have
been borrowing foreign doctrines and decisions very often from each other.
A civil law country, Argentina sometimes uses the support of the foreign
decisions to interpret the domestic laws in the country. Most importantly such
foreign decisions are used or cited to demonstrate how various countries around
the globe are dealing with particular problems or issues. The Argentinian
Courts have used foreign judgments (mostly form the United Nations) especially
in cases dealing with the Constitutional matters as the Constitution of the
country was inspired from that of the United States Constitution.
mid-1930’s the Supreme Court of Argentina applied the precedents from the
America as a means of Constitutional interpretation. But with regards to the
civil and commercial matters it is witnessed that the European continental law
is referred to by the domestic Courts.
A foreign Court’s decision can be effectively used in Argentina provided that
the following conditions are met with:
- The foreign law on which the foreign decision is relevant must bare a
close resemblance between the national laws from a statutory point of
- The facts of the case in the foreign judicial decisions coincide with
that of the case or dispute before the domestic judge.
- If the concept or idea of justice is either similar to or equivalent in
the foreign jurisdiction to that of the domestic Court.
Once these conditions are fulfilled or met with then foreign law (referring to
case laws here) can become a valid argument supporting the conclusion being
drawn by the domestic Court.
The attitude adopted by Canada with respect to the transnational judicial
dialogues is that of a constant source of inspiration and happiness reinforced
into the judicial legitimacy. Canada’s judicial recourse to foreign law has
influenced and helped the country to cultivate a more open and multi-cultural
approach towards the law. The country is known for readily accepting the
transfer of legal ideas without inhibitions.
Out of the 10 provinces in Canada,
except for Quebec which has the civil law jurisdiction rest 9 follow the common
law. So for a foreign case law to be adopted by more than one province, it must
obtain the recognition on a provice-by-province manner. Until the 1970’s the
Canadian Courts routinely followed the judgments of the highest Court’s in Wales
and England. But, even till this date the judicial decisions from England and
Wales are followed twice more than any other country in the decisions made by
the Courts in Canada.
The resemblance between the American Bills of Rights and the Canadian Charter
has encouraged the Courts in Canada to refer to the decisions taken by the
Courts in the United States with regards to the matters relating to it. The
Judges of the Canadian shows have been consistent in showing their interest in
the American law. The statistics shows that the Canadian judges have cited
American case laws forty times more than that of the American Judges citing a
Canadian case law. The “next frontier,” as it were, for expansion of the
enforcement of foreign judgments in Canada probably lies in the penal, revenue
and other public laws defense to enforcement.
In Germany the Courts occasionally use foreign decisions to interpret the
Constitutional Law. It uses a comparative method to interpret the Constitutional
Principles. The Federal Constitutional Court, i.e. the Court that has exclusive
jurisdiction over constitutional matters also uses foreign decisions to
determine or understand the content of international law especially the
developing sphere of human rights. Over the years the Federal Constitutional
Court has taken judgments or decisions from the Supreme Court in America than
that of any other country or jurisdiction.
China follows a civil law model which means the legal system is primarily
sourced from the law and not the case laws. The Courts in China rarely cite
foreign decisions directly in their judgments compared to other civil law
countries like Spain, France, etc. but there does exist a nexus between how the
foreign decisions are influencing the judges while making their
The defamation laws America have has played an important role in
a few domestic judgments of the Chinese Court. So it can be said that though the
Chinese Courts with respect to the use of foreign decisions is not a direct one
but undoubtedly there is an indirect impact of the decisions made by the Chinese
Courts as they have on very rare occasions have leaned towards concepts and
principles developed in foreign nations.
In France the Courts do not cite the decisions of the foreign Courts or academic
authorities as a rule. If such a citation is used in the decision arrived at by
the Court then may lead to ir being legally challenged for annulment. But,
the references to the foreign decisions as an aid to interpretation can be
noticed in the material they prepare for a particular case or other studies
conducted by various prestigious institutions that especially specialize in
In a few cases the Courts however did cite foreign decisions
braking, the tradition of not citing. The only exception to this being that,
the Courts are allowed to use the case laws from the European Court of Human
Rights. However, the judiciary in France keeps themselves informed of the
growing trends in the judicial system and changing law in all parts of the
Observations And Suggestions
While applying foreign judgments to interpret statues or legal aspects, the
judiciary must make sure that the facts of the judgment being applied are
similar to or relevant while using them. A blind application of a foreign
judicial decision will be detrimental to the purpose of interpretation.
The judiciary is responsible for the socio-legal developments of the nation.
Hence, it must be very vigilant and aware of the socio legal developments around
the globe and must adopt these changes though the decisions it takes. This is
where the foreign judicial decisions come into picture.
For instance, the LGBTQ+
momentum around the globe influenced the judiciary to recognize the right of an
individual to associate him/herself to a particular gender under Article 21 of
the Constitution, the Court referred to various foreign decisions while deciding
The trend of using foreign judgments in the decisions taken by the judiciary in
India is followed by the judiciary at the higher levels of hierarchy and it can
be seen that the lower judiciary does not indulge in using such decisions much
comparatively. Though the judiciary at the lower level refers to the judgments
passed by the higher judiciary, its application of such decisions would create
an open mind even at the lower level where the scope to look for different
meanings in interpreting will be high.
The socio-historical context of every country is very different form one
another. With the growing increase in the overwhelming weight of international
opinions and the recognition of some rights and legal aspects by nations is
enabling the Judiciary to engage and exchange the methods applied to solve an
issue before the court. This accumulation of wisdom through the system of
borrowing judicial decisions to interpret law is one of the best ways to
internationalize the legal system.
The Indian Court’s openness towards accepting or using foreign judicial
decisions while interpreting statues/ law reflects upon the interconnectedness
between the legal systems of different regions. It is important to remember that
the foreign judgments have an influential value and are not obligatory or
binding decisions in India, they can act as important guideposts to interpret in
Over the years the Constitutional Courts in the countries that follow a common
law legal system such as India, United Kingdom, Canada, have become some of the
most important promoters of the increasing importance of the comparative
constitutional law. In these countries the reliance on foreign precedents is
becoming a common place in the public litigation. This trans-judicial
communication among nations is pushing or rather encouraging the Nations to rely
upon such precedents and laws.
- Erra R, 'The Use Of Comparative Law Before The French Administrative
Courts' (2004) 156 Brit. Insti, & Comp.
- Judicial Recourse To Foreign Law: A New Source Of Inspiration? (UCL
- K. Tripathi P, 'Foreign Precedents And Constitutional Law' (1957) 57
Columbia Law Review
- K.G. Balakrishnan C, 'The Role Of Foreign Precedents In A Country's
Legal System' (2010) 22 National Law School of India Review accessed 12 October
- Koehnen M, and Klein A, The Recognition And Enforcement Of Foreign
Judgments In Canada (International Bar Association Annual Conference
2010) accessed 12 October 2020
- Leibman B, 'Innovation Through Intimidation: An Empirical Account Of
Defamation Litigation In China' (2006) 33 Harvard International Law Journal
- Landis.J, A Note on "Statutory Interpretation”, 46 HARWARD L.R.,
- Miller J, 'R, Judicial Review And Constitutional Stability: A Sociology
Of The U.S. Model And Its Collapse In Argentina' (1997) 21 HASTINGS INT’L &
COMP. L. REV
- Slaughter A, 'The Typology Of Transjudicial Communication' (1994) 29 U
Richmond L. R.
- The Impact Of Foreign Law On Domestic Judgments' (Loc.gov,
2010) accessed 12 October 2020
- Tushnet M, 'The Possibilities Of Comparative Constitutional Law'
(1999) 108 Yale Law Journal
- Forasal v Oil and Natural Gas Commission (1984) Supreme Court, AIR
- Justice KS Puttaswamy and Ors v Union of India (UOI) and Ors (2018)
Supreme Court, 9 SCJ (Supreme Court)
- Navtej Singh Johar and Ors. v. union of India (2018) Supreme Court,
AIR 2018 SC 4321
- B. Prabhakar Rao v. State of Andhra Pradesh (2018)Supreme Court, 1985
S.C.R. Supl. (2) 573.
- B. Prabhakar Rao v. State of Andhra Pradesh, 1985 S.C.R. Supl. (2) 573.
- Landis.J, A Note on "Statutory Interpretation”, 46 HARWARD L.R., 881,
- De Sloovère, F.. Extrinsic Aids in the Interpretation of Statutes.
88 University of Pennsylvania L. R., 527, 527-555 (1940).
- Anne Slaughter, The Typology of Transjudicial Communication, 29 U Richmond
L. R. , 99 (1994).
- Chief Justice K.G. Balakrishnan, The Role of Foreign Precedents in a
Country's Legal System, 22 National Law School of India Review , 7,9 (2010),
(last visited Oct 12, 2020)
- Justice K.S. Puttaswamy and Ors. v. Union of India (UOI) and Ors., AIR 2017
- Peter Semayene v. Richard Gresham, 77ER 194.
- Entrick v. Carrington, (1765) 19 St. Tr. 1029. The Court in this case
held that, “By the laws of England, every invasion of private property, be
it ever so minute, is a trespass.
- Prince Albert v. Strange, (1849) 41 ER 1171
- Boyd v. United States, 116 US 616 (1886). The Supreme Court of the
United States laid down some principles in the cases that state the very
essence of the constitutional liberty and security, “The principles laid
down in this opinion affect the very essence of constitutional liberty and
security... they apply to all invasions on the part of the government and
its employees of the sanctity of a man's home and the privacies of life. It
is not the breaking of his doors and the rummaging of his drawers that
constitutes the essence of the offence, but it is the invasion of his
indefeasible right of personal security, personal liberty, and private
property,-it is the invasion of this sacred right...”
- Griswold v. Connecticut, 381 US 479 (1965). The Court in this case
observed that right to privacy emanated from ‘penumbras ’ of the fundament
constitutional rights and guarantees in the Bill of Rights, which altogether
create the zones of privacy.
- United States v. Miller, 425 US 435 (1976).
- National Media Ltd. v. Jooste, 1996 (3) SA 262 (A).
- Bernstein v. Bester and Ors., 1996 (2) SA 751 (CC)
- NM and Ors v. Smith and Ors., 2007 (5) SA 250 (CC). The Court stated
that the more intimate the information, the more important it is in
fostering privacy, dignity and autonomy that an individual makes primary
decision whether to release the information.
- Her Majesty, the Queen v. Brandon Roy Dyment, (1988) 2 SCR 417. Privacy is
at the heart of liberty in a modern state.
- R v. Spencer, (2014) SCC 43.
- Navtej Sigh Johar v. Union of India, AIR 2018 SC 4321
- Law v. Canada (Minister of Employment and Immigration), 1999 1 S.C.R.
- James Egan and John Norris Nesbit v. Her Majesty The Queen in Right of
Canada and Anr.  2 SCR 513
- A.R. Coeriel and M.A.R. Aurik v. The Netherlands
- Ashok Kumar v. Union of India and Ors., (2008) INSC 614
- Forasol v. Oil and Natural Gas Commission, AIR 1984 SC 241
- General Elctric Company v. Renusagar Power Company, (1987) 4 SCC 137
- The Impact of Foreign Law on Domestic Judgments Loc.gov,
(last visited Oct 12, 2020)
- Patricia Marcel Casal, Recepcion Del Derecho Extranjero Como Argumento:
Derecho Comprando (Editorial Belgrano) (1997)
- Judicial Recourse To Foreign Law: A New Source Of Inspiration? (UCL Press)
- Markus Koehnen & Amanda Klein, The Recognition And Enforcement Of
Foreign Judgments In Canada (International Bar Association Annual Conference, 2010).
- The Impact of Foreign Law on Domestic Judgments Loc.gov,
- Markus K.& Amanda Klein, The Recognition And Enforcement Of Foreign
Judgments In Canada, Saturday 2 October, 2010
- Benjamin L. Leibman, Innovation Through Intimidation: An Empirical Account
of Defamation Litigation in China, 33 Harvard International Law Journal , 104
(2006). The Fan Zhiyi Case introduced the concept of ‘public person’ through the
decision. It could be pointed out that the concept of a ‘public person’ is not
included in the Chinese Laws, Regulations, or legal interpretations. It is
interesting to note that this concept evolved under the First Amendment Law of
the United States. When China used this concept in this case (Fan Zhiyi Case),
the Supreme People’s Court (the highest Court in China) it provided guidelines
to all its lower Courts thereby making it a judicial precedent binding on
similar cases that might arise in the future.
- The Impact of Foreign Law on Domestic Judgments Loc.gov, available at:
(last visited Oct 12, 2020).
- Roger Erra, The Use of Comparative Law Before the French Administrative
Courts, 156 Brit. Insti, & Comp. (2004)
- M. Tushnet, The Possibilities of Comparative Constitutional Law, 108 Yale
Law Journal , 1225 (1999).