Foreign Decisions as an Aid to Interpretation

For the purpose of construction of Indian statutes, courts also refer to decisions of foreign courts which are following same system of jurisprudence as ours. The assistance of such decisions is subject to the qualification that prime importance is always to be given to the language of the relevant Indian statute, the circumstances and the setting in which it is enacted and the relevant conditions in India where it is to be applied. These foreign decisions have persuasive value only and are not binding on Indian courts and where guidance is available from binding Indian decisions, reference to foreign decisions is of no use (see Forasol v ONGC, AIR 1984 SC 241; General Electric Co. v. Renusagar Power Co., (1987) 4 SCC 137).

While interpreting provisions relating to fundamental rights contained in the Indian Constitution, Supreme Court took much assistance from American precedents.

In case where an International Convention is involved, it is obviously desirable that decisions in different jurisdictions across the world should so far as possible be kept in line with each other. Therefore, in such cases foreign decisions are more useful for guiding the courts.

The following passage is very authentic statement of the Apex Indian court which states clearly that the context of the statue and the foreign decisions should be seen first before application of these types of situations.The case pertains to the constitutional issues.I quote below:

"Elaborate arguments have been advanced about the applicability of the foreign decisions, more particularly, the American Courts. It is to be noted that the American cases which have been highlighted by the petitioners relate essentially to strict classification, strict scrutiny and narrow tailoring. This issue is of considerable importance when so much debate is taking place about respect being shown by courts of a country to a decision of another country. The factual scenario and the basic issues involved in the cases sometimes throw light on the controversy. It has been rightly contended by Mr. Vahanvati and Mr. Gopal Subramanium that there is a conceptual difference between the cases decided by the American Supreme Court and the cases at hand. In Saurabh Chaudri and Ors. v. Union of India and Ors. (2003 (11) SCC 146) it was held that the logic of strict classification and strict scrutiny does not have much relevance in the cases of the nature at hand. If one looks at the different Statutes in India, Article 14 of the Constitution is conceptually different from 14th Amendment to the American Constitution as was noted in State of West Bengal vs. Anwar Ali Sarkar (1952 SCR 284) and State of Bombay and Anr. v. F.N. Balsara (1952 SCR 682). In Anwar Ali's case (supra) at pages 363 and 364 it was noted as follows:
"I find it impossible to read these portions of the Constitution without regard to the background out of which they arose. I cannot blot out their history and omit from consideration the brooding spirit of the times.
They are not just dull, lifeless words static and hide- bound as in some mummified manuscript, but, living flames intended to give life to a great nation and order its being, tongues of dynamic fire, potent to mould the future as well as guide the present. The Constitution must, in my judgment, be left elastic enough to meet from time to time the altering conditions of a changing world with its shifting emphasis and differing needs. I feel therefore that in each case judges must look straight into the heart of things and regard the facts of each 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" which have been called in question offend a still greater law before which even they must bow?"
ASHOKA KUMAR THAKUR v. UNION OF INDIA & ORS [2008] INSC 614 (10 April 2008)


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