The Indian Constitution draws on the founding principles of several other nations. The authors of our constitution understood how crucial it was to include global ideas in order to compete with the rest of the world. The current period is characterised as a globalisation of legal norms and is characterised by judicial exchanges between various legal systems founded on comparable concepts and values. It has been noted that many constitutional systems, particularly those following the common law tradition, frequently cite one another’s theories and case law. In fact, the Supreme Court of India has frequently depended on rulings from other courts in a variety of areas, including the protection of life and the rights of individuals, the freedom of speech and expression, and many others. A key tool of commercial integration is the acceptance and enforcement of decisions made by courts of other sovereigns.
CATEGORIES OF JUDGEMENTS
It is advisable to clarify right away that judicial judgements might be categorised as authoritative and persuasive. Judges must abide by official rules whether they agree with them or not. A convincing argument, on the contrary, is one that the judges will analyse and give the importance they think it deserves despite having no legal need to do so. Foreign rulings fall under the latter category.
TRANS JUDICIAL COMMUNICATION
Although there is no legal concept that seeks to prevent a constitutional court from referring to foreign judgements, the law itself requires that this activity be done cautiously and that the systemic resemblance be carefully considered before applying a foreign court’s ruling to a national issue. It has been noted that many constitutional systems, particularly those following the common law tradition, frequently cite one another’s doctrines and judgments. India is not an exception to this phenomenon. Numerous times, Indian courts have relied on decisions made by foreign courts. This trend is referred to as “trans judicial communication” by Anne Marie Slaughter, a professor of politics and international affairs at Princeton University.
It is crucial to note that the contemporary Indian legal system is frequently referred to as a colonial legacy, but that the 1950 ratification of the Constitution brought about some major reforms. The Supreme Court of India’s reliance on decisions made by foreign courts can be attributed to a variety of causes.
NEED FOR RELIANCE
There are some legal concepts which are not yet taken into account. Some areas where there is no legislation yet made. So, when such types of cases appear before the court, the court does not have any cases as precedents to refer to. At such times, foreign judgments come in handy.
The justification for the reliance is that Indian courts frequently refer to the judicial rulings of other nations, such as England, the United States of America, Canada, and others while making judgements. The majority of Indian law was imported from these nations, albeit India modified it before adopting it, which is how this element came to be. The Supreme Court of India has maintained in a number of cases, such as State of West Bengal v. B.K. Mondal and Sons, that the assistance of such decisions is conditional upon the stipulation that always primacy is accorded to the language of the pertinent Indian Statute, the conditions, and the setting in which it is implemented.
The growing globalisation of legal education is another reason. For instance, reputable law institutions in Europe and the US are enrolling students from a rising number of nations, particularly for postgraduate and research courses. The variety in the classroom encourages intellectual exchange between students from various jurisdictions. The concepts they ingested during their education are brought in when students who have profited from foreign education pursue professions in their country’s bar and court.
The availability of international legal documents, which has now become much simpler due to the growth of information and communication technology, is another aspect that supports the developing trend of – what I am determined to name – judicial globalisation. For instance, until a few years ago, many judges and practitioners in India could not afford to subscribe to international law publications and reviews due to their high cost.
The use of the English language as the authoritative text of Indian statutes, in addition to the connection to English common law and the closeness in jurisprudence and political thinking, is another aspect that compels the Indian courts to refer to international judgements from English-speaking nations.
However, the Courts have consistently held that a foreign precedent should only be given a persuasive value and cannot be relied upon when it is obviously at odds with the country’s existing legal system.
RELIANCE IN LANDMARK CASES
- In M.H. Hoskot v. State of Maharashtra, the Supreme Court specifically used American rulings to support its conclusion that those who are impoverished are entitled to free legal representation. Free legal services have been understood to imply that “substantive due process” is an “imperative procedural element of criminal justice” that is inherent in Art. 21. A few years later, in Khatri v. State of Bihar, the Court upheld this right by ruling that the state could not refuse to provide legal assistance to those who could not afford it.
- The Indian Courts have frequently cited rulings involving the First Amendment to the U.S. Constitution when discussing the scope of “freedom of speech and expression.” In Indian Express Newspapers v. Union of India, the Supreme Court ruled that the constitutional right to freedom of speech, which includes freedom of the press, was breached by taxing newspaper publications. In Rangarajan v. Jagjivan Ram and Union of India, the court decided that the banning of a movie that attacked caste-based hiring preferences is incompatible with the principle of free speech. In this case, reliance was put on Schenck v. United States where the idea of “clear and present danger” was developed as criteria for restricting expression.
In the early years after independence, the Supreme Court of India used to rely a lot on foreign precedents, which has increased in recent decades as the judicial system of India developed. It is the era of judicial globalisation and thus there is no debate while relying on foreign judgements. But caution should be followed while referring to cases of other countries because judges will have a chance to act arbitrarily by picking favourable judgements to their viewpoints. And there is also a chance that our whole system of law would not have any significance if we refer to foreign judgements on every single matter.
I, therefore, come to the conclusion that there is no justification for suppressing the judicial discourse between various legal systems that are based on comparable ideals and principles in this era of globalisation of legal standards. However, it is clear that none of these judgements is legally obligatory on the Indian Supreme Court, even though they may serve as very persuasive authorities that courts may validly consult. They must be evaluated, nonetheless, in light of Indian law and judicial practices.
Author(s) Name: Varsha Jain (Pravin Gandhi College of Law, Mumbai)
 Anne-Marie Slaughter, ‘The typology of transjudicial communication’ (1994) 29 University of Richmond Law Review 99-137
 State of West Bengal v B.K. Mondal and Sons (1962) AIR SC 779
 M.H. Hoskot v State of Maharashtra (1978) AIR SC 802
 Khatri v State of Bihar (1981) AIR SC 928
 Indian Express Newspapers v Union of India (1986) AIR SC 515
 Schenck v United States 2(1919)47 U.S. 4