Special Importance of Comparative Study in Interpretation

Where a Constitution is framed with materials borrowed from other constitutional

instruments, as, for instance, the Constitution of the U.S.A. or India, it is obvious that
the need for a comparative study assumes a special importance because, in
interpreting and applying the borrowed Constitution, the national courts must
necessarily
necessarily have to refer to the foreign precedents,-historical, political and
judicial,to discover what meaning had been imputed to the borrowed materials in
the countries of their origin, conscious of which the framers of the borrowed
Constitution had adopted those materials. This may be illustrated with reference to
the Constitutions of U.S.A. and India.
It is commonplace to state that the uncodified ancient law, known as common
Common Law of law, is the foundation of the English legal system and still
England forms the bulk of the English jurisprudence, except in so far
as it has been replaced, in parts, by legislation."

24. Cf.R. v. Saunders, (1979) 2 All ER 267 (CJEC); R. v. Marlborough Magistrate. (1977) 3 All ER
365 (QBD).
25.
R.v. Henn, (1980) 2 All ER 166 (171, 198) (HL); cf. R. v. Pieck, (1981) 3 All ER 46 CJEC (ref. by
aMagistrate of U.K.).
26.
R.v. Henn, (1980) 2 All ER 166 (171, 198) (HL); cf. R. Pieck, (1981) 3 All ER 46 CJEC (ref. by
v.
a
Magistrate of U.K.)..
27. 0'Brien v. Sim-Chem, (1980) 2 AlI ER 307 (317) (CA); Shields v. Coomes, (1979) 1 All ER 456.
28. Thus, the history of continuous amendments to the Indian Constitution relating to the right to
property demonstrates that the adoption of the system of private property with a consitutional
guarantee of just compensation in case of expropriation by the State, from the American Constitution,
inthe original Constitution of India, did not take full account of the needs of the developing State in
this country, which eventually have led to the effacement of this constitutional guarantee, by the 44th
Amendment, 1978, after a current of gradual erosion over quarter of a century.
9.
Snoxell v. Vauxhall Motors, (1977) 3 Al ER 770 (EAT).
The European Convention on Human Rights (which has been ratified by the U.K.) is also considered
asan aid to the interpretation of Englishstatutes [R. . Secy. of State, (1975) 3 All ER 497 (CA).
30. Geldart, Elements of English Law, p. 9; Holdsworth, A History of English Law, p. 187; Halsbury,
4th Edn., Vol. 8, paras.. 806, 811, 890-91.
 10 Comparative Constitutional Law
Chapter 1
t is natural. therefoe. that all countries which have inherited the English legal
system. being colonies founded by English settlers (such as the U.S.A.), or
dependencies acquired by England by war, annexation or the like (such as India),"
originally started with the English law and the history of the development oflaw in
these countries is a gradual replacement of that common law by codification. It is
also natural that in making these codes, whether by way of a written Constitution or a
code of general law, the basic element would be the English common law concepts
of course, as modified by indigenous ideas where necessary.
If that be so, it is natural that while interpreting those provisions of the American
Constitution which embody common law principles, the
American Constitution American Judges would seek light from English precedents,
where the common law concept had been explained. This broad principle of
interpretation of the American Constitution has been emphasised by the Supreme
Court ever since its inception.
Not very long ago, HOLMES, C.J. observed:"
"The provisions of the Constitution are not mathematical formulas having their essence
in their form; they are organic living institutions transplanted from English soil. Their
significance is vital not formal; it is to be gathered not simply by taking the words and a
dictionary, but by considering their origin and the line of their growth"

If it were otherwise, the very object of the framers of the Constitution, in adopting
common law institutions or concepts, would be defeated. For instance. in adopting
the common law writ of habeas corpus (whether in the U.S.A. or India). the fathers
of the Constitution were inspired by the indefeasible right to individual liberty which
lay at the foundation of the English prerogative writ of habeas corpus. Short of those
precedents where formidable English Judges have defended the writ against
executive or even legislative encroachment, the invocation of the writ in the U.S.A.
or in India would be reduced to an appeal to some meaningles jargon, ineffective to
safeguard personal liberty in hours of peril.
Though the very concept of limited government, with a written Constitution and a
Bill of rights enforceable by Judicial Review, was foreign to
Common Law Heritage
the unwritten constitutional law of England, yet it cannot be
overlooked that those who framed the Constitution of the United States were
colonists from England, who had brought the common law with them and that the
earliest State Constitutions, which preceded the national Constitution of 1787,
embodied, in a codified form, many of the principles of English common law, which
had prevailed in the American colonies prior to the making of these Constitutions.
These concepts passed, through the State Constitutions," into the national
Constitution of1787, e.g., prohibition against ex post facto laws, bill of attainder,
habeas corpus.
This was explained by TaFT, C.J.." in interpreting the scope of the 'pardoning'
power of the President [Art. II, s. 2(1)]. Relying on English common law, he

31. Setalvad, Common Law in India (1960).

32. Calder v.Bull. (1798) 3 Dall 386; Cummings. Missouri, (1867) 4 Wall 277.
33. Gompers v. U.S., (1914) 233 US 604 (610).
34. Schwartz, The Law in America (1974), pp. 9, 23, 28-30.
35. Garland, ex parte, (1 867) 4 Wall 333.
36. Hurtado v. Califomia, (1884) 110 US 516 (531); Van Ness v. Pacard, (1829) 2 Pet 137 (144).
37. Grossman, exparte, (1924) 69 L Ed 527 (535) following U.S v. Wilson, (1833) 7 Pet 150.
Chapter 11 Scope of the Comparative Study of Constitutional Law 11

ancluded that it comprised the power to pardon punishment for contempt of court as
ell The observations of the Chief Justice are well-worth reproduction:
The language of the (American) Constitution cannot be interpreted except by reference
to the common law and to British institutions as they were when the instrument was
framed and adopted. The statesmen and lawyers of the Convention.. were born and
brought up in the atmosphere of the common law... when they came to put their
conclusions into the form of a fundamental law in a compact draft, they expressed them in
terms ofthe common law, confident that they could be shortly and easily understood.

The greatest impress of the English common law upon the American Constitution
was upon the Bill of Rights, which was added to the national Constitution in 1789.
Practically all the doctrines underlying the First Ten Amendments (which are
popularly referred to as the 'Bill of Rights') had been asserted, in England, against an
absolute monarchy, since the days of the Magna Carta-e.g., an individual's right to
ife, liberty and property, to free speech and a free press, to freedom of worship and
assembly; and these were adopted by the fathers of the American Constitution. with
this difference that they came to be intended as bulwarks against the tyranny and
caprice of the majority for the time being in the Legislature, no less than the
Executive." Notwithstanding this difference in the perspective, the common platform
between the English common law rights and liberties and the American Bill of Rights
is that both wereintended as bulwarks against arbitrary powers whoever might seek
39
to exercise them."
Naturally, the American courts have never forgotten that these constitutional
guarantees had been *inherited from our English ancestors" As a result. in
interpreting these rights, they have looked into English common law for their
contents as well as the exceptions inherent in them, whether formally expressed in
the American Constitution or not,"-provided, of course, there was no contrary
provision adopted in the latter, or no modification was called for by changes in the
Circumstances, which could not be foreseen by the Founding Fathers or their
47
English ancestors.
Thus, in applying the English common law principles safeguarding individual
nghts, the American Supreme Court could never forget that the very fact that the
common law principles were incorporated in a written Constitution in the United
States, made a gulf of difference in the result achieved, in the two countries. While in
England, people fought for these rights against an arbitrary Executive, they never
Conceived of any limitations being imposed upon the representative Legislature: in
the United States the written Constitution operated as a limitation upon all the organs
or even the Judiciary. It
set up by that Constitution-the Executive, the Legislature
1S obvious that judicial interpretation of the Bill of Rights in the United States has
Cxpanded the guarantee of individual rights much beyond what the English Judges
COuld comprehend. This was pointed out by MATTHEWS, J. in the early case of
Hurtado v. California" thus:
"In this country written constitutions were deemed essential to protect the rights and
liberties of the people against the encroachments of power delegated to their

S8. Hurtado v. California, (1884) 110 US 516(53/); Van Ness v. Pacard, (1829) 2 Pet 137 (144)
9, Citizens' Savings & Loan Assocn. v. Topeka, (1874) 20 Wall 65 (062); Board of Education v.
Burnete, (1943) 319 US 624.
40. Robert v. Baldwin, (1897) 165 US 275.
v. Holland, (1920) 252 US
416.
C t . Missouri
42. Hurtado v. California, 1884) i 10 US 516 (531); Vun Ness v. Pacurd, (1829) 2 Pet 137 (144).
12 Comparative Constitutional Law [Chapter 11
Governments, and the provisions of Magna Charta were incorporated into Bills of
Rights. They were limitations upon all the powers of government, legislative as well as
executive and judicial.
It necessarily happened, therefore, that as these broad and general maxims of liberty and
justice held in our system a different place and performed a different function from their
position and office in English constitutional history and law, they would receive and
justify a corresponding and more comprehensive interpretation. Applied in England only
as guards against executive usurp and tyranny, here they have become bulwarks
also against arbitrary legislation; but, in that application, as it would be incongruous to
measure and restrict them by the ancient customary English law, they must be held to
guarantee, not particular forms of procedure, but the very substance of individual rights
to life, liberty, and property."
".Arbitrary power, enforcing its edicts to the injury of the persons and property of its
subjects, is not law, whether manifested as the decree of a personal monarch or of an
impersonal multitude. And the limitations imposed by our constitutional law upon the
action of the governments, both state and national, are essential to the preservation of
public and private rights, notwithstanding the representative character of our political
institutions...."

The effect of a common law principle being embodied in a written Constitution, as

India explained in the foregoing American decision, making a
basic difference in the constitutional background from that in
England, though pointed out by the Supreme Court in India," is not infrequently
ignored by political leaders and is sometimes overlooked by the court itself." WWe
shall see more of this hereafter.

43. Hurtado v. California, (1884) 110 US 516

(531); Van Ness v. Pacard, (1829) 2 Pet 137 (144).
44. Ref. under Art 143, AlR 1965 SC 745 (paras.
39-42).
45. E.g., Ujjam Bai v. State of U.P., (1963) 1 SCR 778;
Naresh v. State of Maharashtra, AIR 1967 SC
(paras 38-39, 47); Kishan Chand v. Commr., AIR 1961 SC 705; for comments, see Author' s Shorer
Constiution of India.