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The Use of Foreign Judgments As An External Aid Of Interpretation: A Critical Analysis

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 societal needs.

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:
  1. external aid and
  2. 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 opined that:
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.[1]

“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.”[2] 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.”[3]

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 Importance
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

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[4] where she described the three different approaches that a Court can consider to use foreign precedents:
  1. 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.[5]
  2. 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.[6]
  3. 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 international instruments.

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.

Before 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 jurisdictions/nations.

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[7] 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[8], Entrick v. Carrington[9], Prince Albert v. Strange[10] 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[11], Griswold v. Connecticut[12], United States v. Miller[13], 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[14] where the Court observed that the right to privacy is an individual condition of life; Bernstein v. Bester and Ors[15] 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.[16], among other cases. Some of the landmark cases referred to from Canada include Her Majesty, The Queen v. Brandon Roy Dyment[17], R v. Spencer[18], etc.

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[19]

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[20], James Egan and John Norris Nesbit v. Her Majesty The Queen in Right of Canada and Anr.[21], Paris Adult Theatre I v. Slaton, A.R. Coriel v. The Netherlands[22], 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[23] 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?”[24]

In Forasol v. ONGC[25], General Electric Company v, Renusagar Power Company[26] 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.[27] 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.

Argentina

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.[28] 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.

Until the 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 view.[29]
  • 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.

Canada

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.[30] 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.[31] 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.[32] 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.[33]

Germany

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

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 decisions.[34]

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.

France

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.[35] 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 comparative law.

In a few cases the Courts however did cite foreign decisions braking, the tradition of not citing.[36] 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 world.

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 this.

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.

Conclusion
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 India.

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.[37]

Bibliography
  • 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 Press 2006)
  • 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 2020
  • 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., 886-893 (1930).
  • 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 (Supreme Court)
  • 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.

End-Notes:
  1. B. Prabhakar Rao v. State of Andhra Pradesh, 1985 S.C.R. Supl. (2) 573.
  2. Landis.J, A Note on "Statutory Interpretation”, 46 HARWARD L.R., 881, 886-893 (1930).
  3. De Sloovère, F.. Extrinsic Aids in the Interpretation of Statutes. 88 University of Pennsylvania L. R., 527, 527-555 (1940).
  4. Anne Slaughter, The Typology of Transjudicial Communication, 29 U Richmond L. R. , 99 (1994).
  5. 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), http://docs.manupatra.in/newsline/articles/Upload/DD0D1FD1-B18C-4240-9B41-15C5923FE819.pdf (last visited Oct 12, 2020)
  6. Id.
  7. Justice K.S. Puttaswamy and Ors. v. Union of India (UOI) and Ors., AIR 2017 SC 4161.
  8. Peter Semayene v. Richard Gresham, 77ER 194.
  9. 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.
  10. Prince Albert v. Strange, (1849) 41 ER 1171
  11. 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...”
  12. 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.
  13. United States v. Miller, 425 US 435 (1976).
  14. National Media Ltd. v. Jooste, 1996 (3) SA 262 (A).
  15. Bernstein v. Bester and Ors., 1996 (2) SA 751 (CC)
  16. 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.
  17. Her Majesty, the Queen v. Brandon Roy Dyment, (1988) 2 SCR 417. Privacy is at the heart of liberty in a modern state.
  18. R v. Spencer, (2014) SCC 43.
  19. Navtej Sigh Johar v. Union of India, AIR 2018 SC 4321
  20. Law v. Canada (Minister of Employment and Immigration), 1999 1 S.C.R. 497
  21. James Egan and John Norris Nesbit v. Her Majesty The Queen in Right of Canada and Anr. [1995] 2 SCR 513
  22. A.R. Coeriel and M.A.R. Aurik v. The Netherlands
  23. Ashok Kumar v. Union of India and Ors., (2008) INSC 614
  24. Id
  25. Forasol v. Oil and Natural Gas Commission, AIR 1984 SC 241
  26. General Elctric Company v. Renusagar Power Company, (1987) 4 SCC 137
  27. The Impact of Foreign Law on Domestic Judgments Loc.gov, https://www.loc.gov/law/help/domestic-judgment/Impact-of-Foreign-Law-on-Domestic-Judgments.pdf (last visited Oct 12, 2020)
  28. Patricia Marcel Casal, Recepcion Del Derecho Extranjero Como Argumento: Derecho Comprando (Editorial Belgrano) (1997)
  29. Id
  30. Judicial Recourse To Foreign Law: A New Source Of Inspiration?  (UCL Press) (2006).
  31. Markus Koehnen & Amanda Klein, The Recognition And Enforcement Of Foreign Judgments In Canada (International Bar Association Annual Conference, 2010).
  32. The Impact of Foreign Law on Domestic Judgments Loc.gov, https://www.loc.gov/law/help/domestic-judgment/Impact-of-Foreign-Law-on-Domestic-Judgments.pdf.
  33. Markus K.& Amanda Klein, The Recognition And Enforcement Of Foreign Judgments In Canada, Saturday 2 October, 2010
  34. 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.
  35. The Impact of Foreign Law on Domestic Judgments Loc.gov, available at: https://www.loc.gov/law/help/domestic-judgment/Impact-of-Foreign-Law-on-Domestic-Judgments.pdf (last visited Oct 12, 2020).
  36. Roger Erra, The Use of Comparative Law Before the French Administrative Courts, 156 Brit. Insti, & Comp. (2004)
  37. M. Tushnet, The Possibilities of Comparative Constitutional Law, 108 Yale Law Journal , 1225 (1999).

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