Cross Border Judicial Dialogue: A Look at Indian Supreme Court’s Engagement with Australian Jurisprudence in National Legal Services Authority V. Union of India

The use of foreign law and international law for constitutional interpretation is not new (Jackson Vicki C. Jackson, “Transnational Discourse, Relational Authority, and the US Court: Gender Equality” 37 Loyola of Los Angeles Law Review 271 (2003)) [While referring to the use of foreign law and international law for domestic purposes Prof. Jackson says that “looking outward to [such] transnational legal sources to encourage domestic adoption of and compliance with gender equality rights is an obvious legal strategy”, Id. at 277] (Glensy Rex D. Glensy, “Which Countries Count?: Lawrence v. Texas and the Selection of Foreign Persuasive Authority” 45 Virginia Journal of International Law 357 (2005); Hirschl Ran Hirschl, “Comparative Law: The Continued Renaissance of Comparative Constitutional Law” 45 Tulane Law Review 771 (2010)). Courts from all across the globe (Carolan Bruce Carolan, “The Supreme Court, Constitutional Courts and the Role of International Law in Constitutional Jurisprudence: The Search for Coherence in the Use of Foreign Court Judgments by the Supreme Court of Ireland” 12 Tulsa Journal of Comparative and International Law 123 (2004); Lollini Andrea Lollini, “The South African Constitutional Court Experience: Reasoning Patterns Based on Foreign Law” 8 Utrecht Law Review 55 (2012); Schneiderman David Schneiderman, “Exchanging Constitutions: Constitutional Bricolage in Canada” 40 Osgoode Hall Law Journal 401 (2002); Trang Duc. V. Trang, “Beyond the Historical Justice Debate: The Incorporation of International Law and the Impact on Constitutional Structures and Rights in Hungary” 28 Vanderbilt Journal of Transational Law 1 (1995); Ramraj Victor V Ramraj, “Comparative Constitutional Law in Singapore” 6 Singapore Journal of International and Comparative Law 302 (2002); Chen Wen-Chen Chang, “The Convergence of Constitutions and International Human Rights: Taiwan and South Korea in Comparison” 36 North Carolina Journal of International Law and Commercial Regulation 594 (2010); Mak Elaine Mak, “Reference to Foreign Law in the Supreme Courts of Britain and the Netherlands : Explaining the Development of Judicial Practices” 8 Utrecht Law Review 20 (2012); Hammer Leonard M. Hammer, “Reconsidering the Israeli Courts’ Application of Customary International law in the Human Rights Context” 5 ILSA Journal of International and Comparative Law 23 (1998); Allan James Allan, Grant Huscroft, and Nessa Lynch, “The Citation of Overseas Authority in Rights Litigation in New Zealand: How Much Bark? How Much Bite?” 11 Otago Law Review 433 (2007)), including India (Smith Adam M. Smith, “Making Itself at Home: Understanding Foreign Law in Domestic Jurisprudence: The Indian Case” 24 Berkeley Journal of International Law 218 (2006)) [hereinafter Smith 2006] [Refers to the initial reliance of the Supreme Court of India on international law and the subsequent intensification of the same during 1990s because of the fact that “the Indian Court [...] amassed more power and the country [underwent] significant changes through its immersion in globalisation.” Id. at 259]; (Khosla Madhav Khosla, “Inclusive Constitutional Comparison: Reflections on Sodomy Decision” 59 American Journal Comparative Law 909 (2011)) [hereinafter Khosla 2011]; (Deva Surya Deva, “Human Rights Realisation in an Era of Globalisation: The Indian Experience” 12 Buffalo Human Rights Law Review 93 (2006); Balakrishnan Justice K.G. Balakrishnan, “The Role of Foreign Precedents in a Country’s Legal System” 22(1) National Law School of India Review 1 (2010); Shankar Shylashri Shankar, “The Substance of the Constitution: Engaging with Foreign Judgments in India, Sri Lanka and South Africa” 2 Drexel Law Review 373 (2010); Halabi Sam F. Halabi, “Constitutional Borrowing as Jurisprudential and Political Doctrine in Shri D.K. Basu v. State of West Bengal” 3 Notre Dame Journal International & Comparative Law 73 (2013)) and Australia (Lefler Rebecca Lefler, “A Comparison of Comparison: Use of Foreign Case Law as Persuasive Authority by the United States Supreme Court, The Supreme Court of Canada, and the High Court of Australia” 11 Southern California Interdisciplinary Law Journal 165 (2001); Aroney Nicholas Aroney, “Comparative Law in Australian Constitutional Jurisprudence” 26 University of Queensland Law Journal 317 (2007)), constantly engage in what has been referred to, among other things, as ‘transnational constitutionalism’ (Choudhry Sujit Choudhry, The Migration of Constitutional Ideas (Cambridge University Press, 1st edn., 2007); Yeh and Chang Jiunn-Rong Yeh and Wen-Chen Chang, “The Emergence of Transnational Constitutionalism: Its Features, Challenges and Solutions” 27 Penn State International Law Review 89 (2008)). Globalisation of legal profession, for one, has led to the proliferation of this phenomenon (Mak Elaine Mak, Judicial Decision-Making in a Globalised World: A Comparative Analysis of the Changing Practices of Western Highest Courts (Hart Publishing, 1st edn., 2014); Shah Prakash Shah, “Globalisation and the Challenge of Asian Legal Transplants in Europe” Singapore Journal of Legal Studies 348 (2005); Bell John Bell, “Researching Globalisation: Lessons from Judicial Citations” 3(3) Cambridge Journal of International and Comparative Law 961 (2014); Gelter and Siems Martin Gelter & Mathias Siems, “Networks, Dialogue or One-Way Traffic? An Empirical Analysis of Cross-Citations between Ten of Europe's Highest Courts” 8 Utrecht Law Review 88 (2012)) [Stating that in a globalised world, ‘law’, which has traditionally been the prerogative of the sovereign nation state, also seems to see some cross-border interaction, Id. at 88]. Unlike some countries, where engagement with foreign law for interpretative purposes has met some skepticism (Rosenkrantz Carlos F. Rosenkrantz, “Against Borrowings and Other Non-authoritative Uses of Foreign Law” 1(2) International Journal of Constitutional Law 269 (2003); Law and Chang David S. Law & Wen-Chen Chang, “The Limits of Global Judicial Dialogue” 86 Washington Law Review 523 (2011); Saunders Cheryl Saunders, “The Use and Misuse of Comparative Constitutional Law” 13 Indiana Journal of Global Legal Studies 37, 39 (2006); Howard A.E. Dick Howard, “A Traveler from an Antique Land: The Modern Renaissance of Comparative Constitutionalism” 50 Virginia Journal of International Law 3 (2009)), the constitutional courts in India have accepted/adopted this practice with a lot of enthusiasm (Bandopadhyay Saptarishi Bandopadhyay, “Because the Cart Situates the Horse: Unrecognised Movements Underlying the Indian Supreme Court’s Internationalisation of International Environmental Law” 50 Indian Journal of International Law 204 (2010)), with the Supreme Court of India cautioning, from time to time, against the disproportionate and inconsiderate use of foreign authorities and international law for statutory (Mehta M.C. Mehta v. Union of India, (1987) 1 SCC 395, 421) [We cannot allow our judicial thinking to be constricted by reference to the law as it prevails in England or for that matter in any other foreign country. We no longer need the crutches of a foreign legal order. We are certainly prepared to receive light from whatever source it comes but we have to build our own jurisprudence, per Bhagwati CJ, Id. at 421] and constitutional (Thakur Ashoka Kumar Thakur v. Union of India, (2008) 6 SCC 1, 307) [The Hon’ble Supreme Court denied to apply the concept of “affirmative action” as it exists in U.S.A. to Indian conditions and stated that: “under these circumstances (where the social context in which the law is made is different), judgments from the US, while entitled to respect, must be approached with great caution, for their adoption would lead to jettisoning of over half a century of our jurisprudence.” Id. at 307] interpretation. In this article I attempt to look at the extent and the manner in which the Indian Supreme Court engaged with jurocomparatology (Defined for the purpose of this article as: “Jurocomparatology may be defined as the science of ‘comparative law’, the practice of engaging in ‘comparative analysis of laws’ and the practice of using ‘international law for domestic purposes.” For a detailed analysis of this definition, see Hakim Yasir Abbas, “The Muddled Science of Comparative Law: Mending Terminology and Mapping its’ Benefits within Indian Constitutional Discourse” 2(1) Catolica Law Review 39 (2018).) in National Legal Services Authority v. Union of India (AIR 2014 SC 1863) [hereinafter NLSA], particularly with Australian jurisprudence. The first part provides an overview of NLSA, discusses jurocomparatology in the context of Indian Constitution and discusses how it manifested itself in NLSA. The second part discusses court’s engagement with Australian jurisprudence in NLSA.