Chapter

Constitutional Borrowing in South Asia

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/9780198081760.003.0007
Constitutional Borrowing in South Asia

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This chapter considers the associations between the courts of India and Sri Lanka as an example of constitutional comparisons and cross-connections within the South Asian region itself. More specifically, the chapter discusses Indian constitutional law as a possible source for judicial borrowing and outcomes in Sri Lanka. The author outlines doubts about the transferability of ideas from one culture to another, an idea which has found a contemporary echo in an increasingly voluble debate over the judicial application of foreign sources in constitutional adjudication. The centrepiece of the analysis is Sri Lankan Supreme Court's judgment in a landmark case—‘Sisters of Saint Francis of Menzingen’—in which the issue of secularism and religion was positioned at the intersection of several subjects critical to comparative constitutional reflections on India and Sri Lanka: basic structure, federalism, and popular sovereignty. The author concludes that, ultimately, borrowing results from a mix of motives—opportunistic, self-reflective, and sometimes unreflective. Which one dominates may be less a function of judges themselves and more a function of the institutional balance between the executive and the judiciary.

Keywords: constitutional borrowings; Indian constitution; Sri Lankan consitutions; Sri Lankan Supreme Court; federalism; popular sovereignty; Sri Lankan justices; ‘Sisters of Saint Francis of Menzingen’; Indian Courts

Chapter.  14679 words. 

Subjects: Constitutional and Administrative Law

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