Chapter

How to Do Comparative Constitutional Law in India

Sunil Khilnani, Vikram Raghavan and Arun K. Thiruvengadam

in Comparative Constitutionalism in South Asia

Published in print December 2012 | ISBN: 9780198081760
Published online January 2013 | e-ISBN: 9780199082360 | DOI: http://dx.doi.org/10.1093/acprof:oso/9780198081760.003.0003
How to Do Comparative Constitutional Law in India

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This chapter attempts to answer the following questions: how should Indian courts do comparative constitutional law? What precise role should comparative materials play in the interpretation of the Indian Constitution? Is their use simply rhetorical? Is the citation of comparative materials a judicial attempt to assert India's membership in the family of liberal democracies? Is legal globalization the counterpart to economic globalization? Does the practice of cosmopolitan citation suggest that Indian constitutional adjudication is part of a trans-national conversation on the relationship between rights, democracy, courts and the rule of law that knows no jurisdictional boundaries? Is the Indian Constitution merely a legal means to implement rights that exist independently and apart from the Indian constitutional order? Or is comparative analysis entirely inappropriate to the interpretation of a document which has been seen as India's ‘first real exercise of political self-determination’? The author offers a provisional answer to these questions, by puzzling through the recent judgment of the Delhi High Court in Naz Foundation v. Union of India in which the court used comparative constitutional law in an big way. In doing so, the author engages in two debates which are the subject of the chapter: the role of comparative materials in constitutional interpretation, and to change how we situate India in the field of comparative constitutional law. The chapter provides a detailed discussion of dialogic interpretation as opposed to a universalist interpretations of constitutional law.

Keywords: comparative constitutional law; Naz Foundation v. Union of India; Delhi High Court; dialogical interpretation; Indian Constitution; comparative jurisprudence; legal globalization

Chapter.  15295 words. 

Subjects: Constitutional and Administrative Law

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