Indian case law sets precedent for Commonwealth countries

Indian case law sets precedent for Commonwealth countries
Comment E-mail Print Share
First Published: Fri, Dec 12 2008. 12 02 AM IST

Setting the tone: The Supreme Court of India in New Delhi. Experts say Indian court judgements are being used by the judicial fraternity abroad because these courts are leading internationally in area
Setting the tone: The Supreme Court of India in New Delhi. Experts say Indian court judgements are being used by the judicial fraternity abroad because these courts are leading internationally in area
Updated: Fri, Dec 12 2008. 12 02 AM IST
New Delhi: Shortly after South Africa set up its constitutional court in 1994, the country’s first post-apartheid government bought two sets of journals on verdicts delivered by India’s Supreme Court.
The journals were bought from Eastern Book Co. (EBC), a publishing house based in Lucknow.
Setting the tone: The Supreme Court of India in New Delhi. Experts say Indian court judgements are being used by the judicial fraternity abroad because these courts are leading internationally in areas of law such as public interest litigations on issues including human rights. Ramesh Pathania / Mint
EBC has since observed that lawyers and the judicial fraternity in countries such as South Africa, Singapore, Australia and Malaysia are increasingly citing Indian rulings in their arguments or judgements.
Earlier this year, a high court judge in South Africa cited a 1989 Delhi high court ruling by B.N. Kirpal on copyright issues while deciding a dispute between co-authors of a thesis, said Sumeet Malik, director, EBC. Indian judgements have been cited in a few British cases as well, he said.
The Indian judicial system is a derivative of the British common law system that is also followed in other Commonwealth countries.
Seeing the growing demand for Indian judgements overseas, EBC has tied up with the Singapore Academy of Law (SAL). Starting next month, EBC will provide Indian Supreme Court rulings to SAL’s online subscribers. Headed by the chief justice of Singapore, SAL seeks to promote high standards of conduct among members of the legal profession in the country. Its website LawNet.com.sg also provides online research material and legal solutions to lawyers in Singapore, Malaysia and Brunei.
“The citation of the Indian case law in other jurisdictions is part of the overall trend in different jurisdictions to take note of or consider how courts in other jurisdictions have treated or developed a similar legal issue,” said Clifford Wong, assistant director of LawNet Portal and ePublications at SAL.
He said Indian judicial Acts are relevant to LawNet subscribers since India, Singapore and Malaysia share a common legal heritage, with roots in a common law system. Moreover, a number of legislations in Singapore and Malaysia are modelled on legislations in India, the most well known being the Indian Penal Code (IPC), 1860.
“...the Supreme Court has made substantial progress in several fields of law, establishing principles which would be relevant to countries across the globe. This is especially true when we look at countries with similar economic and social development and, thus, in several cases, Indian law is far more applicable to their countries than even laws from the the UK,” said Raghunandan Malik, assistant director, EBC. “Further, India’s multi-ethnic, multi-religious society and proactive legal system are of great relevance to developing countries.”
As EBC’s online bookstore receives orders for its journals on Supreme Court cases from lawyers, universities and courts from countries such as the United Arab Emirates, Argentina, Guyana, Nepal, Pakistan, Sri Lanka and Bangladesh, it aspires to take its products to the US, Australia, Canada and South Africa to feed the growing demand for Indian case law in foreign jurisdictions.
Ambika Nair, India market manager of Thomson Reuters, which is a provider of electronic and print legal content, said Indian courts are leading internationally in a few areas of law. “Public interest litigation (PIL) jurisprudence in India is now more developed than other countries and is being appreciated in international legal circles. Even in administrative and constitutional law, we have shown more progress as we have been around longer than other developing countries and new democracies.”
Not surprisingly, a 2002 judgement of South Africa’s constitutional court—the highest court on constitutional matters in the country—dealing with the question whether courts can enforce the socioeconomic rights of South African citizens, cites the experience of the Indian Supreme Court in PILs.
Follow the leader: Former chief justice of India B.N. Kirpal. S Burmaula / HT
Since the 1980s, India’s apex court and high courts, through their decisions in numerous PILs, have upheld human rights, especially of the weak and disadvantaged sections of society. The courts have passed orders directing the executive and the legislature to take action on issues involving public health, environment, women and children’s rights.
“Even a cursory perusal of the relevant Indian case law demonstrates a willingness on the part of the Indian courts to grant far-reaching remedial orders,” the constitutional court said.
“Most striking in this regard is the decision in M.C. Mehta v Tamil Nadu, in which the Supreme Court granted a wide-ranging order concerning child labour that included highly detailed mandatory and structural injunctions,” it added.
While hearing a PIL filed by lawyer M.C. Mehta, the Supreme Court had in 1996 directed the government of Tamil Nadu to take measures to check child labour and protect the rights of children.
A 2001 verdict of the South African lands claim court looks at the Indian case of Narain Das Jain v Agra Nagar Mahapalika decided by the Supreme Court in 1991 to benchmark the compensation to be provided while acquiring land.
“In India, under the Land Acquisition Act of 1894...a solatium (compensation) of 30% of the value of the expropriated land is payable to the owner in consideration of the compulsory nature of the acquisition,” the South African court said.
A ruling of the UK’s House of Lords in 2005 looked at the trend of prospective overrulings that is unique to courts in India and the US. A prospective overruling is when the court overrules an existing precedent and creates a new one that does not apply retrospectively.
Besides verdicts on socioeconomic rights, international businesses also want to know how Indian courts are deciding on commercial laws that have an impact on economic policies, said Nair of Thomson Reuters.
“India is also becoming an important investment destination for businesses in Singapore and Malaysia. This factor means that Indian decisions are important to lawyers here,” said Wong speaking of LawNet subscribers in Singapore and Malaysia.
malathi.n@livemint.com
Comment E-mail Print Share
First Published: Fri, Dec 12 2008. 12 02 AM IST