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