22 Nat'l L. Sch. India Rev. 1 (2010)

handle is hein.journals/nlsind22 and id is 1 raw text is: ARTICLES

THE ROLE OF FOREIGN PRECEDENTS IN A COUNTRY'S
LEGAL SYSTEM'
Chief Justice K.G. Balakrishnan*
The use offoreign judgments in domestic constitutional adjudication has proved
to becontentious in both the USA and India. ChiefJustice Balakrishnan argues
that there is no principle of law that constrains a constitutional court from
referring to these judgments, and specifically addresses possible differences in
the constitutional scheme in the United States and India in this respect. Chief
Justice Balakrishnan emphasises, however, that this exercise must proceed with
caution, and carefully examine structural similarities before applying the decision
of a foreign court to a domestic question. He offers several examples in the
jurisprudence ofthe Supreme Court ofIndia that could serve as a model for the
use offoreign judgments in constitutional adjudication.
The topic that I am addressing has been very contentious amongst the legal
community in the United States. Sitting justices of the United States Supreme
Court as well as eminent academics have taken strong positions to justify or
oppose the citation of foreign precedents in constitutional cases. As a representative
of the Indian judicial system, the most appropriate thing for me to do is to present
an 'outsider's view' of this debate and then briefly comment on how foreign
precedents have been treated by the higher judiciary in India.
At the outset, it must be clarified that reliance on foreign precedents is
necessary in certain categories of appellate litigation and adjudication. For instance,
in litigation pertaining to cross-border business dealings as well as family-related
disputes, the actual location of the parties in different jurisdictions makes it
necessary to cite and discuss foreign statutory laws and decisions. Hence, domestic
1   This is based on a lecture delivered by Hon'ble Mr. Justice K.G. Balakrishnan at the
Northwestern University School of Law (Illinois, U.S.A.) on October 28, 2008.
* Presently serving as the Chief Justice of India (January 2007 onwards) at the
Supreme Court of India, New Delhi. The author acknowledges the research
assistance provided by Sidharth Chauhan (Law Clerk to the Hon'ble C.J.I.).

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