Foreign Judgments and

International Conventions
use as tool of Interpretation
Prof. S. P. Srivastava
Department of Law and Governance
Central University of South Bihar, Gaya
Why Foreign Judgements and
International LawUse by Indian
Courts
 Foreign precedents is necessary in certain categories
of appellate litigation and adjudication-
1. In litigation pertaining to cross-border business
dealings as well as family-related disputes.
2. The actual location of the parties in different
jurisdictions makes it necessary to cite and discuss
foreign statutory laws and decisions.
3. Courts are also required to look into the text and
interpretations of international instruments (i.e.
treaties, conventions, declarations) if their respective
countries are party to the same.
Continued:
 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’.
Ways through which foreign
precedents are considered
 Through vertical means, i.e., when domestic courts
refer to the decisions of international adjudicatory
institutions, irrespective of whether their countries
are parties to the international instrument under
which the said adjudicatory institution functions.
 Through horizontal means, i.e. when a domestic
court looks to precedents from other national
jurisdictions to interpret its own laws.
Continued:
 Through mixed vertical-horizontal means, i.e. when a
domestic court may cite the decision of a foreign
court on the interpretation of obligations applicable
to both jurisdictions under an international
instrument.
 Indian laws are modeled on British statutes and
fundamental rights of citizens of India under the
Constitution of India are based entirely on the U.S.
Bill of Rights.
Application of International
Conventions
 in the case of Gramophone Co of India V/S Birendra
Bahadur Pandey [5] has laid down that the comity of
nations requires that the rules of international law
may be accommodated in the municipal law even
without express legislative sanctions provided they
do not run conflict with the acts of parliament …the
doctrine of incorporation also recognizes the
position that the rules of international law are
incorporated into the nations law and considered to
be part of national law , unless they are in conflicts
with an act of parliament.
Ambiguity and International Law
 In case of keshavanand bharti v/s state of kerala,
 Chief Justice Sikri observed that: “It seems to me
that, in view of article 51 of the directive principles,
this court must interpret language of the constitution,
if not intractable, which is after all a municipal law, in
the light of the United Nations Charter and the
solemn declaration subscribed to by India”.
Harmonious construction
between the two laws
 If there occurs a conflict between the international
and the municipal law, the courts shall as far as
possible shall try to provide a harmonious
construction between the two laws. this view has
been taken by the Calcutta high court in krishna
sharma v/s state of west bengal,  
Continued:
 In the case of Vellore citizens welfare forum V. Union of
India , the Honble Supreme Court upholding the validity
of principles of sustainable development , polluter pays
and precautionary rules has laid down “ once these
principles are accepted as part of customary
international law, there should be no difficulties in
accepting them as part of our domestic law. It is
almost an accepted preposition of law that the rules of
customary international law, which are not contrary to
the municipal law shall be deemed to have been
incorporated in the domestic law and shall be followed
by the court of law.
Purposes of Treaties reference
in Interpretatation
 To fill a gap in the law
 As the mean of interpretation
 To justify and fortify a stance taken
 To implement international convention when they are
not in conflict with existing national laws.
 To fulfill the spirit of the conventions and treaties
 To interpret the law as to reflect international
changes
Recent Trend
 Vishakha vs. State of Rajasthan 
 Neelabati Behera vs. State of Orissa
 Chairman Railway Board vs. Chandrima Das
 Civil Liberties v. Union of India (2005) 2 SCC 436 where
the Supreme Court has held that there is a prima facie
presumption that Parliament did not intend to act in
breach of international law, including State treaty
obligations and it is well settled that in construing any
provision in domestic legislation which is ambiguous,
in the sense that it is capable of more than one
meaning, the meaning which conforms most closely to
the provisions of any international instrument is to
be AJN preferred, in the absence of any domestic law
to the contrary. 
Continued:
 Jeeja Ghosh v. Union of India needs to be celebrated for
reaffirming the rights of persons with disabilities to live
with dignity. This case arose from a public interest
litigation that was filed when Spice Jet forcibly de-
boarded Jeeja Ghosh because of her disability. The court
held the airline’s action illegal and ordered it to pay Rs. 10
lakh to the petitioner. In reaching this conclusion, the
court also referred to international law to underline the
rights of persons with disabilities. For instance, para 13
of the judgment says: “The Vienna Convention on the
Law of Treaties, 1963 requires India’s internal legislation
to comply with international commitments. Article 27
states that a “State party… may not invoke the provisions
of its internal law as justification for its failure to perform
a treaty.”
Decisions of foreign courts of
Same jurisprudence
 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. ( Forasol v ONGC, AIR 1984 SC
241; General Electric Co. v. Renusagar Power Co.,
(1987) 4 SCC 137).
Continued:
 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.
Naz Foundation v. NCT of Delhi
 In a recent decision of the Delhi High Court, delivered on
July 2, 2009, section 377 of the Indian Penal Code (No. 45
of 1876), which describes the offense of homosexuality,
was declared a violation of those rights guaranteed
under the Constitution. In declaring the provision
unconstitutional, the High Court relied on a number of U.
S. decisions, including Griswold v. State of Connecticut,
where the U.S. Supreme Court invalidated a state law
prohibiting the use of drugs or devices of contraception
in protecting the right of privacy; Olmstead v. United
States, where the Indian Supreme Court especially
considered the dissent of Justice Brandeis on the right to
privacy; and the landmark abortion decision, Roe v. Wade