Role of Foreign Decisions in Interpretation: Waquar Ahmad
Role of Foreign Decisions in Interpretation: Waquar Ahmad
Role of Foreign Decisions in Interpretation: Waquar Ahmad
A research paper submitted in partial fulfilment of the course Interpretation of Statutes and Principles Of
Legislation for the requirement of degree of B.A. LL.B. (Hons.) for the academic session 2021-2022
SUBMITTED BY:
Waquar Ahmad
SUBMITTED TO:
August, 2021
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ACKNOWLEDGEMENT
The present project on the “Role of Foreign Decisions In Interpretation” has been able to get its final
shape with the support and help of people from various quarters. My sincere thanks go to all the members
without whom the study could not have come to its present state. I am proud to acknowledge gratitude to
the individuals during my study and without whom the study may not be completed. I have taken this
opportunity to thank those who genuinely helped me.
With immense pleasure, I express my deepest sense of gratitude to Dr. Fr. Peter Ladis F. Chanakya
National Law University for helping me in my project. I am also thankful to the whole Chanakya
National Law University family that provided me all the material I required for the project. Not to forget
thanking to my parents without the cooperation of which completion of this project would not had been
possible.
I have made every effort to acknowledge credits, but I apologies in advance for any omission that may
have inadvertently taken place.
Last but not least I would like to thank Almighty whose blessing helped me to complete the project.
THANKING YOU,
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DECLARATION
I hereby declare that the work reported in the BA.LLB (Hons.) Project Report entitled
Submitted at Chanakya National Law University is an authentic record of my work carried out under the
supervision of Dr. Fr. Peter Ladis F. I have not submitted this work elsewhere for any other degree of
diploma.
SIGNATURE OF CANDIDATE
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CONTENTS
ACKNOWLEDGEMENT ........................................................................................................................ 2
INTRODUCTION..................................................................................................................................... 5
CONCLUSION...................................................................................................................................... 16
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INTRODUCTION
The most essential manoeuvre to be undertaken in the field of law is to develop various administrative
and judicial techniques to interpret the statutes. 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.
Foreign precedents are necessary in certain categories of appellate litigation and adjudication-
Constitutional systems in several countries, especially those belonging to the common law tradition,
have routinely been borrowing doctrine and precedents from each other. Many new Constitutions
incorporated mutually similar provisions by drawing from ideas embedded in international instruments
such as the United Nations Charter and the Universal Declaration of Human Rights [hereinafter
“UDHR”]. Much of this constitutional transplantation that has taken place by means of international
instruments has also exported certain distinct features of the United States Constitution – such as a Bill
of Rights, ‘judicial review’ over legislation and limits placed on governmental power through principles
such as ‘equal protection before the law’ and ‘substantive due process’
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
• Internal aid
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• The aim of the project is to present an overview of Foreign Decisions through various Statutes,
Guidelines and suggestions and different writings and articles.
• The aim has been to identify the different aspects of the study of decisions in Indian perspective
through the years.
HYPOTHESES
The researcher presumes that-
• The foreign decisions have been the backbone of many major Indian judgments.
• The trend in modern era has been in the direction of enhancing the authoritative foundations of the
international legal system and to moving State practices away from State absolutism.
RESEARCH METHODOLOGY
The research methodology adopted in the project is mainly focused on doctrinal way of research.
References in the project have been taken from web journals, articles, newspaper, websites and books.
However every reference has been taken in an unplagiarized manner and due credit has been given to each
source in the bibliography section. Views have been presented on each topic with no outsourcing of facts.
Every view presented is completely original in form of comments and the facts and other contents are
interpretation of authentic materials.
The reason for choosing doctrinal way of research is because this is such a topic on which facts and data
is already available and it depends on an individual that how he interprets such facts. No discovery or
invention of facts is required for this topic of project
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REVIEW OF LITERATURE
1) K.G. Balakrishnan CJ, 'The Role Of Foreign Precedents In A Country's Legal System'
The Article written by Chief Justice K.G Balakrishnan gave an insight to my Research topic, The article
emphasised on Foreign precedents used in our legal system. The Article coming from Chief Justice had
all the elements about role of precedents of different nations which is followed in Indian courtroom
specially how it influences the judgement. This Article helped the researcher in knowing how a judge
interpret foreign precedents and its impact on our Judiciary.
The book by G.P Singh had less content but important sections of this research portion. This book assisted
the researcher in comprehending the vital topic of Trans-Judicial communication.
SOURCES OF DATA
1. Primary sources
2. Secondary sources: Books, Internet etc.
METHOD OF WRITING
The method of writing followed in the course of this research paper is primarily analytical.
The Researcher as a student has completed the project, he has access to a limited area and having a limited
time.
MODE OF CITATION
For the Purposes of executing this project work the researcher has resorted to a uniform mode of citation.
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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 isn’t 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.1
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
1
K. Tripathi P, 'Foreign Precedents And Constitutional Law' (1957)
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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:
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.2 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.3
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. 4 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.5
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.
2
ibid
3
B. Prabhakar Rao v. State of Andhra Pradesh, 1985 S.C.R. Supl. (2) 573
4
Landis.J, A Note on "Statutory Interpretation”, 46 HARWARD L.R., 881, 886-893 (1930)
5
De Sloovre, F.. Extrinsic Aids in the Interpretation of Statutes. 88 University of Pennsylvania L. R., 527, 527-555 (1940).
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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 1994.6 where she
described the three different approaches that a Court can consider to use foreign precedents:
• 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.7
• 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.8
• 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.
6
Anne Slaughter, The Typology of Transjudicial Communication, 29 U Richmond L. R. , 99 (1994).
7
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)
8
ibid
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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:
Justice K S Puttaswami and Others v. Union of India and Others.9 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.
9
Justice K.S. Puttaswamy and Ors. v. Union of India (UOI) and Ors., AIR 2017 SC 4161.
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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.10 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 Case11,
Entrick v. Carrington12, Prince Albert v. Strange13 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 States14, Griswold v. Connecticut15, United
States v. Miller16, 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 17 where the Court observed that the
right to privacy is an individual condition of life; Bernstein v. Bester and Ors18 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.19 among other cases.
This judgment can essentially serve as a comprehensive document that records historical landmark cases
IDof 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.
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
10
Id at 11.
11
Peter Semayene v. Richard Gresham
12
Entrick v. Carrington, (1765)
13
Prince Albert v. Strange, (1849) 41 ER 1171
14
Boyd v. United States, 116 US 616 (1886)
15
Griswold v. Connecticut, 381 US 479 (1965)
16
United States v. Miller, 425 US 435 (1976)
17
National Media Ltd. v. Jooste, 1996 (3) SA 262 (A)
18
Bernstein v. Bester and Ors., 1996 (2) SA 751 (CC)
19
NM and Ors v. Smith and Ors., 2007 (5) SA 250 (CC)
20
AIR 2018 SC 4321
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Courts and Jurisdictions. The Court specially considered the decisions of the foreign Courts in Law v.
Canada21, James Egan and John Norris Nesbit v. Her Majesty The Queen in Right of Canada and Anr22,
Paris Adult Theatre I v. Slaton, A.R. Coriel v. The Netherlands23, 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 Others24 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 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.
21
Law v. Canada (Minister of Employment and Immigration), 1999 1 S.C.R. 497
22
James Egan and John Norris Nesbit v. Her Majesty The Queen in Right of Canada and Anr. [1995] 2 SCR 513
23
A.R. Coeriel and M.A.R. Aurik v. The Netherlands
24
Ashok Kumar v. Union of India and Ors., (2008) INSC 614
25
AIR 1984 SC 241
26
(1987) 4 SCC 137
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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:
a) 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
b) The facts of the case in the foreign judicial decisions coincide with that of the case or dispute
before the domestic judge.
c) If the concept or idea of justice is either similar to or equivalent in the foreign jurisdiction to that
of the domestic Court.
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 Aug 30, 2021)
28
Patricia Marcel Casal, Recepcion Del Derecho Extranjero Como Argumento: Derecho Comprando (Editorial Belgrano)
(1997)
29
ibid
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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
nine 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 province-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
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
See Supra at 13.
33
Markus K.& Amanda Klein, The Recognition And Enforcement Of Foreign Judgments In Canada,(Visited 30 August, 2021)
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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.
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BIBLIOGRAPHY
Important Cases:
1) Justice K.S. Puttaswamy and Ors. v. Union of India (UOI) and Ors., AIR 2017 SC 4161.
2) Ashok Kumar v. Union of India and Ors., (2008) INSC 614
3) Forasol v. Oil and Natural Gas Commission, AIR 1984 SC 241
4) B. Prabhakar Rao v. State of Andhra Pradesh, 1985 S.C.R. Supl. (2) 573.
5) Navtej Sigh Johar v. Union of India, AIR 2018 SC 4321
1) K. Tripathi P, 'Foreign Precedents And Constitutional Law' (1957) 57 Columbia Law Review
2) K.G. Balakrishnan C, 'The Role Of Foreign Precedents In A Country's Legal System' (2010)
3) Koehnen M, and Klein A, The Recognition And Enforcement Of Foreign Judgments In Canada
(International Bar Association Annual Conference 2010)
4) Tushnet M, 'The Possibilities Of Comparative Constitutional Law' (1999) 108 Yale Law Journal
5) Judicial Recourse To Foreign Law: A New Source Of Inspiration? (UCL Press 2006)
6) Anne Slaughter, The Typology of Transjudicial Communication, 29 U Richmond L. R. , 99
(1994).
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