The recent opinion of the Supreme Court on the Presidential Reference concerning “Assent, Withholding or Reservation of Bills by the Governor and the President of India”1 (a background to the opinion was posted earlier, click here) noted that it relied on a “swadeshi interpretation” without referring to a single foreign precedent. This, combined with the newly appointed Chief Justice’s call for a more indigenous judicial philosophy, has triggered an important debate in India’s legal community2. While the idea of self-reliance in constitutional interpretation naturally appeals to national pride, it raises critical questions about whether such a method truly advances justice, legal development, and the very constitutional ideals it seeks to uphold.
Table Of Content
Introduction: The Paradox of Constitutional Purity
At the very outset, it is important to recognize that the notion of a purely “swadeshi” Constitution is inherently paradoxical. The Indian Constitution itself is a sophisticated blend of global constitutional thought. Syed Muhammad Saadulla (not Dr. B.R. Ambedkar as mentioned everywhere, subject to correction), the then Member of the Constitutent Assembly acknowledged that the Constitution was drafted after “ransacking all the known Constitutions of the World.”3
When P.S. Deshmukh criticised the Draft Constitution in August 1947 for copying parts from the Irish Constitution and the Government of India Act of 1935, Dr. Ambedkar responded:
“One likes to ask whether there can be anything new in a Constitution framed at this hour in the history of the world. More than hundred years have rolled over when the first written Constitution was drafted… What the scope of a Constitution should be has long been settled. Similarly, what are the fundamentals of a Constitution are recognized all over the world. Given these facts, all Constitutions in their main provisions must look similar. The only new things, if there can be any, in a Constitution framed so late in the day are the variations made to remove the faults and to accommodate it to the needs of the country”4
Dr. Ambedkar clearly understood that constitutional principles grow from universal human aspirations shaped by global experience. The Constituent Assembly never saw borrowing as weakness. Rather, it saw it as an intelligent effort to combine the world’s best constitutional ideas with India’s social and political needs.
The Constitution’s structural framework borrows heavily from the Government of India Act, 1935. Its fundamental rights draw from the American Bill of Rights; the Directive Principles from the Irish Constitution; the parliamentary system from the British model; and federal features from Canada and Australia. If the very birth of our Constitution reflects comparative borrowing, how can its interpretation be expected to remain purely indigenous? The correct approach is not to reject foreign jurisprudence but to recognise that constitutional evolution thrives on the exchange of ideas across borders.5
Critics often argue that the Constitution’s reliance on the Government of India Act, 1935 taints it with colonial influence. It is true that the Act shaped many provisions relating to federalism, the judiciary, governors, emergency powers, and public service commissions.6 But this criticism overlooks the transformation achieved by the Constitution.
The 1935 Act was designed for colonial rule, intended to preserve British authority, however, our Constitution, built around it – a system of popular sovereignty, fundamental rights, and an independent judiciary empowered with judicial review. The framers retained what was operationally sound and replaced everything inconsistent with democratic self-governance. Borrowing did not dilute independence; it strengthened functionality.
Foreign Precedents in Indian Constitutional Jurisprudence: A Rich Tradition
Indian courts have frequently engaged with foreign jurisprudence while shaping constitutional rights.
Basic Structure Doctrine in Kesavananda Bharati v. Union of India
The Basic Structure Doctrine which states that certain fundamental features of the Constitution, such as the supremacy of the Constitution, the rule of law, and the independence of the judiciary, cannot be amended or abrogated by the Parliament through a constitutional amendment is said to have amongst many to have been inspired by the works of the German scholar, Dietrich Conrad7
Maneka Gandhi v. Union of India (1978)
This landmark judgment, which expanded Article 21 and connected Articles 14, 19, and 21 into the “golden triangle”, drew heavily from American due process principles. By moving away from the rigid interpretation in A.K. Gopalan, the Court embraced a more rights-oriented approach influenced by comparative constitutional law.
Vishaka v. State of Rajasthan (1997)
Faced with a legislative vacuum on sexual harassment at the workplace, the Supreme Court relied on the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) to formulate binding guidelines. Justice Verma observed:
“It is now an accepted rule of judicial construction that regard must be had to international conventions and norms for construing domestic law when there is no inconsistency between them and there is a void in the domestic law“8
Invoking Articles 51 and 253, the Court drew from international human rights norms and formulated the Vishaka Guidelines, which protected women for more than a decade before Parliament enacted a statute.
M.C. Mehta Cases
In the series of M.C. Mehta decisions, the Courts introduced principles like the polluter pays principle, precautionary principle, absolute liability, and the public trust doctrine. All these doctrines were developed in international environmental law and enriched Indian jurisprudence.9
K.S. Puttaswamy v. Union of India (2017)
While declaring privacy a fundamental right, the nine-judge bench studied comparative jurisprudence extensively. Nearly one-fifth of the citations came from American, Canadian, and UK courts. The Court evaluated how modern democracies view privacy and used that global understanding to strengthen Article 21 protections.10
India as an Exporter of Constitutional Thought
India not only borrows but also influences global constitutional law.
Bangladesh
Bangladesh explicitly incorporated the basic structure doctrine into its Constitution through Article 7B following the its Supreme Court’s decision in Anwar Hossain Chowdhary v. Bangladesh (1989) . The Bangladeshi Supreme Court expressly relied on the reasoning in Kesavananda, making Bangladesh perhaps the only country to constitutionalize this doctrine in written form.11 The Bangladeshi case of Dr. Mohiuddin Farooque v. Bangladesh (known there as “FAP-20 case”) is a landmark case for them regarding Public Interest Litigation and cited the our Supreme Court’s decision in S.P. Gupta v. Union of India (1982) regarding the rules of locus standi in Public Interest Litigation (PIL) matters12
Sri Lanka & Nepal
Sri Lankan judgement of Environmental Foundation Ltd. & Ors. v. Mahaweli Authority of Sri Lanka & Ors. expressly discusses the Public Trust Doctrine and cites M.C. Mehta v. Kamal Nath when developing Sri Lanka’s environmental jurisprudence.13Nepalese constitutional jurisprudence appears in Advocate Prakashmani Sharma v. Office of the Prime Minister and Council of Ministers, where the Supreme Court of Nepal recognised the Right to Food as an enforceable constitutional right. The Court expressly relied on the Indian Supreme Court’s decision in Chameli Singh v. State of U.P., which interpreted Article 21 to include the right to live with dignity14
Pakistan
While the Pakistani Supreme Court has referenced Indian jurisprudence extensively, it has oscillated between accepting and rejecting the doctrine. In District Bar Association v. Federation of Pakistan (2015) explicitly stated it was referring to Indian precedents but deliberately rejected blind application of India’s doctrine and would develop its own version of Basic Structure15.
African Nations
In 2021, Kenya’s High Court in David Ndii & Ors. v. Attorney General & Ors. adopted the basic structure doctrine relying on Kesavanada Bharati16. Earlier, South Africa’s Land Claims Court relied on Narain Das Jain v. Agra Nagar Mahapalika while adjudicating compensation issues in land acquisition.17
Why Comparative Jurisprudence Matters
Domestic precedents cannot address every new constitutional question. Technology, environmental crises, social change, and expanding human rights constantly create new challenges. Foreign judgments offer persuasive not binding guidance to navigate these uncharted areas. Former Chief Justice K.G. Balakrishnan in a lecture rightly observed that in a global era, judicial dialogue among countries strengthens shared constitutional values.18
Critics of foreign precedent raise genuine concerns about cherry picking or lack of contextual grounding. But these concerns argue for careful use, not complete rejection, of comparative jurisprudence.19
Conclusion
Excessive focus on “swadeshi” interpretation risks producing insular, parochial jurisprudence disconnected from global constitutional developments. Constitutional law worldwide confronts similar challenges as any other country.
Constitutional law, like all human knowledge, advances through dialogue, debate, and exchange of ideas. No nation possesses a monopoly on constitutional wisdom. The Constitutional Courts such as India’s have always recognized this, drawing on each other’s reasoning while remaining rooted in their distinctive constitutional traditions.
The recent emphasis on “swadeshi interpretation” risks obscuring this fundamental truth. While well-intentioned, it threatens to produce insular, parochial jurisprudence disconnected from global constitutional developments and diminished in global influence. It also contradicts the very foundations of the Indian Constitution, a document that proudly synthesized global constitutional wisdom to create something distinctively Indian.
The choice is not between swadeshi and foreign jurisprudence but between open and closed constitutional discourse. An open discourse, grounded in Indian constitutional values but informed by global constitutional wisdom, serves India’s interests far better than a turn toward insularity. Ideas, especially ideas about justice and human dignity, should flow freely across borders. This was the Constituent Assembly’s vision. It remains the right vision for India’s constitutional future.
- dated 20th November, 2025 ↩︎
- Why look abroad when we have our own judgments: CJI-designate Surya Kant bats for ‘swadeshi jurisprudence’, Bar & Bench (Nov. 22, 2025), https://www.barandbench.com/news/why-look-abroad-when-our-own-judgments-cji-surya-kan ↩︎
- “Constituent Assembly of India (Legislative) Debates — 9 November 1948,” (Nov. 9, 1948), https://www.constitutionofindia.net/debates/09-nov-1948/#101703. ↩︎
- B.R. Ambedkar’s Defence of Constitutional Borrowing, Constitution of India Blog, https://www.constitutionofindia.net/blog/b-r-ambedkars-defence-of-constitutional-borrowing/. ↩︎
- IGNOU, Bachelor of Social Work, Course Book BSW-131
Social Welfare Administration and Social Action
[https://www.egyankosh.ac.in/bitstream/123456789/98107/1/Block-3.pdf] ↩︎ - Government of India Act, 1935, Constitution of India.net, https://www.constitutionofindia.net/historical-constitution/government-of-india-act-1935/. ↩︎
- Frontline (The Hindu), A. G. Noorani, Behind the ‘basic structure’ doctrine, (Apr. 28–May 11, 2001), https://frontline.thehindu.com/news/behind-the-basic-structure-doctrine/article64757607.ece. ↩︎
- Vishaka v. State of Rajasthan, Para 14 ↩︎
- TaxTMI, ‘“M.C. Mehta” – The Green Warrior of India’, TaxTMI (May 9, 2025), https://www.taxtmi.com/article/detailed?id=14374. (taxtmi.com) ↩︎
- Which foreign judgments does the SC cite?, SC Observer, https://www.scobserver.in/journal/which-foreign-judgments-does-the-sc-cite/. ↩︎
- Supra 7 ↩︎
- Farooque v. Government of Bangladesh, Writ Petition No. 998 of 1994, Civil Appeal No. 24 of 1995 (Bangl. App. Div. July 25, 1996), https://elaw.org/resource/farooque-vs-government-of-bangladesh-wp-998-of-1994-ca-24-of-1995-1996-07-25-flood-action-plan-case. (ELAW) ↩︎
- Environmental Foundation Ltd. and Others v. Mahaweli Authority of Sri Lanka and Others, [2010] 1 Sri L.R. 1 — https://lpr.adb.org/resource/environmental-foundation-ltd-and-others-vs-mahawali-sri-lanka-and-others-2010-1-sri-lr-1 (lpr.adb.org) ↩︎
- Some Landmark Decisions of the Supreme Court, Nepal – Vol. 4, The Supreme Court of Nepal (pdf), https://supremecourt.gov.np/web/assets/downloads/judgements/Some%20Landmark%20Decision%20-%20Vol.%204.pdf. ↩︎
- District Bar Association, Rawalpindi v. Federation of Pakistan, (2015) (Pak.), https://andyreiter.com/wp-content/uploads/military-justice/pk/Court%20Cases/Pakistan%20-%202015%20-%20District%20Bar%20Association,%20Rawalpindi%20v.%20Federation%20of%20Pakistan.pdf ↩︎
- David Ndii & Ors. v. Attorney General & Ors. High Court of Kenya, Petition No. E282 of 2020 (Consolidated) (May 13, 2021), https://www.afronomicslaw.org/sites/default/files/pdf/BBI%20Consolidated%20Judgment%20-%20Final%20Version%20-%20As%20Delivered.pdf (afronomicslaw.org) ↩︎
- Hermanus v. Land Claims Court of South Africa, LCC Case No. 39/98 (Land Claims Court of South Africa Sept. 15, 2000), https://www.justice.gov.za/lcc/jdgm/2000/39-98.pdf ↩︎
- K.G. Balakrishnan, The Role of Foreign Precedents in a Country’s Legal System (lecture delivered at Northwestern University School of Law, Illinois, U.S.A., Oct. 28, 2008), Manupatra Newsline, [https://docs.manupatra.in/newsline/articles/Upload/DD0D1FD1-B18C-4240-9B41-15C5923FE819.pdf] ↩︎
- The Use and Abuse of Foreign Law in Constitutional Interpretation, Ganesh Sitaraman, 32 Harv. J.L. & Pub. Pol’y 653 (2009), https://journals.law.harvard.edu/jlpp/wp-content/uploads/sites/90/2009/03/sitaraman_final.pdf ↩︎
Superb knowledgeable article.