How does the foreign instence Influence the Indian Constitution?
Class :- 9
Sub :- Civics
Chp :- Constitutional Design
Answers
Answer:
While drafting the Indian Constitution, members of the constituent assembly often found themselves at a buffet on which a diverse spread of constitutional designs from foreign jurisdictions was laid out. The assembly carefully scrutinized what was on offer and liberally picked up what it thought was best for the Indian Constitution. The result of this alleged constitutional gluttony seems apparent on a cursory glance at the Indian Constitution – India’s parliamentary system was borrowed from the United Kingdom, federalism from Canada, the Bill of Rights from the United States, Directive Principles from Ireland, Fundamental Duties from U.S.S.R, the idea of a ‘concurrent list’ from Australia and so on. So questions of the “Is this even an ‘Indian’ Constitution?” variety need to be carefully thought of. If national identity is a bone of contention and controversy, it is not surprising that constitutional identity would also be called into question.
On the 26th of November 2015, Constitution Day, the Centre for Law and Policy Research, Bangalore, decided to use the occasion to interrogate and clarify the above-mentioned tensions surrounding the Indian Constitution. In his talk titled ‘Anxieties About The Foreign And The Indigenous In India’s Constitutional Tradition’, Arun Thiruvengadam, Associate Professor at the Azim Premji University, attempted to demystify and unravel the prevailing tendency of Indian political actors and others to question the indigenous credentials of the Indian Constitution. Sitharamam Kakarala (Ram), Professor, Azim Premji University, played the role of the respondent.
Arun began by reminding the audience that such debates are not special to India. Countries all over the world have had to grapple with challenges thrown by various groups about the foreign character of their constitutions and that their constitutional texts did not reflect the traditional values of their respective societies. Resisting the temptation of taking a position on the question – Should a constitution be homegrown or borrowed from other cultures? – at the abstract level, Arun advocated an approach of engaging with the question on a case to case basis. Justifying his evasion of answering his self-posed question, Arun put forth examples of how ‘imposed’ or ‘foreign’ constitutions, as well as ‘home grown’ constitutions, have both failed and succeeded in various contexts.
What was useful for the non-legal members of the audience was Arun’s expansion of the scope of the problem of ‘foreignness’ vs ‘indigenous’. As laymen, we tend to think of the issue only with respect to constitution-making and the resulting final constitutional text, Arun, however, opened up another front – constitutional practice and adjudication. Lawyers presenting arguments and judges deciding cases often make use of foreign constitutional doctrines and cases. This is another sphere where the tensions seem to play out. He cited the case of America, where in the late 80s and early 90s, judges of the Supreme Court detested citations from foreign jurisdictions. Arun took aim at the popular notion that exists in America and the world over about the distinct and original nature of the Constitution of America: the federalist papers which contain the aspirations and intellectual back and forth that surrounded the making of the American Constitution, clearly shows the heavy influence of European political thought.
Where does India stand in the realm of constitutional adjudication? The Indian Supreme Court, Arun argues, unlike its American counterpart, seems to be open to foreign influence in its crafting of doctrines and decisions as reflected in myriad cases (a stark exception of this was the Section 377 related Kaushal judgment). He went on to take up the prevailing consensus of the ‘Basic Structure Doctrine’ and ‘Public interest litigation (PIL)’ as being Indian contributions to global constitutional thought. Taking issue with this consensus, he went on to argue that both the Basic Structure Doctrine and the PIL have traces of significant engagement with foreign constitutional law. Ram added an interesting empirical dimension to Arun’s comments, citing a study whose findings suggest that judiciaries in newly formed nations initially tend to cite foreign judgments and doctrines heavily, but with time the citations of foreign case law plateau and then slowly decrease.
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