THE TREATMENT OF FOREIGN LAW AS EVIDENCE IN DOMESTIC COURTS: A COMPARATIVE STUDY

This article is written by Abhilipsa Kar of 10th Semester of Birla Global University, Bhubaneswar, an intern under Legal Vidhiya

ABSTRACT

This article briefly discusses about the impact of foreign law as evidence in the domestic courts of India. Foreign law is described under Section 45 of the Indian Evidence Act,1872. It states that in case of foreign law, expert opinion is also necessary. Then with the help of many landmark cases including Maneka Gandhi v Union of India, Shreya Singhal v. Union of India and Naz foundation v NCT of Delhi, this article tries to clarify the impact and application of foreign law in our country. When referencing and mentioning foreign legislation in domestic court decisions, care must be taken. It is necessary to thoroughly investigate the structural similarities before applying a foreign court’s ruling to a domestic issue. The internet and advances in technology have made it simple to obtain foreign legal documents. Nonetheless, it has frequently been found that the language of the applicable Indian statute and scenario must be accorded the utmost significance. Every foreign ruling ought to be implemented with consideration for Indian circumstances.

Keywords

Evidence, Foreign law, expert opinion, domestic courts, US laws

INTRODUCTION

Courts are being asked to rule on foreign law disputes more frequently as a result of the complex phenomenon known as globalisation. The fundamental tenet of common law tradition holds that foreign or international laws are truths rather than regulations. Because of this, a common-law judge typically cannot investigate and expand upon foreign law jurisprudence. A court must often rule on two sets of issues: factual and legal. On the former, the parties present the oral and documentary evidence that forms the basis of the dispute. Regarding the latter, the court observes the applicable legislation and does not ask the parties to provide proof. However, personal or matrimonial foreign laws may vary among jurisdictions and may also be intertwined with regional practices and customs; in most jurisdictions, these laws must be pleaded and established as fact, usually via the use of expert testimony. An expert witness is a person who has dedicated their time and education to a specific field of study, making them especially qualified to provide an opinion when called upon.[1] There might be situations where a legal disagreement within the company brings up a foreign law issue. However, because pleading the foreign law is totally optional, the parties to the dispute are free to choose whether or not to introduce it. The judge is not obligated or entitled to act in such capacity ex officio. In a way, this encourages litigants to essentially convert a court case into a domestic one, which makes the conflict of laws a voluntary body of law. In most courts across the world, including those in India, international law is regarded as fact and is typically supported by expert testimony. It is the responsibility of the courts to ascertain the foreign law procedures because only Italy and Germany hold the position that the question of whether foreign law should be applied is one of law in a manner identical to that of a purely internal case. [2]While establishing the existence of foreign law is a factual matter, the impact of said legislation on the rights of the parties is a legal one.

FOREIGN LAW AS EVIDENCE

A person who possesses exceptional proficiency in a particular profession is defined as an expert under Section 45[3]. A person with specialised knowledge and expertise in the field of investigation is called an expert. An expert witness is a person who has dedicated their time and education to a particular field of study, making them particularly knowledgeable about the subjects for which they are called to provide an opinion. His testimony on these topics is admissible in order to help the panel reach a just verdict.

There are fields in which expert opinion is necessary and they are;

• Foreign Law
• Science or Art
• Identity of handwriting
• Finger Impression

Explanation of Foreign Law

In India, foreign law is always viewed as a factual matter. In several instances, the court has construed personal laws as Indian laws, which are therefore the national laws. Since courts are capable of handling tasks on their own, they do not need an individual to interpret the laws. If the court feels that it is necessary to form an opinion regarding the country’s laws, it may refer to relevant statements of the laws found in books published by the government of that country as well as reports of cases decided by the country’s courts and found in books claiming to be reports of those rulings. A declaration of French law on a specific issue found in an unapproved translation of the Code Napoleon. Section 4 of the Act permits the taking of such experts’ opinions. Nonetheless, the additional court ruling records found in these foreign legal publications may also be considered pertinent.[4]

Any law that is not in effect in India is referred to as foreign law. The courts of the country may not be in a position to appreciate the principles of a foreign law and, therefore, whenever a court has to decide a question of foreign law the court can seek the help of those who are experts on the particular foreign law. A law which is in force in India is not a foreign law even if it of foreign origin.[5]

THREE DIFFERENT METHODS BY WHICH FOREIGN PRECEDENTS ARE TAKEN INTO ACCOUNT[6]

 In her book “The Typology of Trans Judicial Communication,” Anne-Marie Slaughter outlines the three methods that foreign precedents are taken into account. And they are;

1. Vertical Means
2. Horizontal Means
3. Mixed vertical- horizontal means

Vertical Means- When national courts refer cases to international adjudicatory bodies, regardless of whether those nations are signatories to the international agreement that governs the operation of the adjudicatory institution in question. For instance, the rulings of the European Court of Justice and European Court of Human Rights have frequently been cited by a number of non-EU nations.

Horizontal Means- When national courts use rulings from other national jurisdictions to interpret their own laws. Comparative analyses of this kind have been particularly helpful in more recent constitutional systems where a significant number of case laws have not been discovered. For instance, the courts in Canada have relied heavily on previous international rulings to interpret the bill of rights within their own legal frameworks.

Mixed Vertical- Horizontal Means- A foreign court’s ruling on the interpretation of duties under an international instrument that apply to both countries may be cited by a domestic court. For instance, a number of European nations cite and refer to one another’s rulings.

Since it is widely acknowledged that the protection of life and liberty guaranteed by Article 21 of the Indian Constitution has changed with time, the Indian Supreme Court frequently relies on international precedents in its rulings. From the outset, courts in independent India have frequently relied on rulings from other common law jurisdictions, the most well-known of which being the United States, Canada, Australia, and the United Kingdom.[7] Foreign courts’ rulings have been frequently referenced and depended upon in significant constitutional decisions addressing issues like –

• Right to privacy
• Stating that the Information Technology Act of 2000’s Section 66A is unlawful
• Restraints on foreign travel
• Freedom of press
• Constitutionality of the death penalty

India’s legal system is heavily influenced by American and British law. Even though these rulings are only persuasive and not authoritative, judges frequently rely on rulings from other countries. The Indian Constitution contains a lot of silent clauses that were taken from other nations. Characteristics such as “single citizenship, rule of law, etc. have been taken from Britain.” The USA no longer has features like the president’s impeachment, fundamental rights, etc. Therefore, it is both clear and necessary that the higher judiciary adhere to foreign court precedents, as we have borrowed our constitutional ideas from other nations, in order to aid in the clarification of the legislation’ application’s parameters.

CASE LAWS

In the case of Aziz Bano v. Mohammad Ibrahim Hussain[8], the Allahabad High Court decided that, The Shia law on marriage is the law of the land and in force in India. It can by no means be called foreign law, nor is such law a science or art within the meaning of section 45 of the Indian Evidence Act. The courts themselves have a responsibility to interpret and implement the law of the land, not to rely on the testimony of witnesses, no matter how knowledgeable they may be. Delegating their obligation to a witness that is provided by either side would be risky. Foreign law on the other hand is a question of fact with which the courts in India are not supposed to be conversant. Opinions of experts in foreign law are, therefore, allowed to be admitted.[9]

In the case of Shreya Singhal v. Union of India, [10] the Information Technology Act of 2000’s Section 66A was ruled unlawful by the Supreme Court. The Apex Court stated, “It is significant to notice first the differences between the US First Amendment and Article 19(1)(a) read with Article 19(2),” in reaching its decision regarding the legal disparities between the US and India with regard to free speech. The US First Amendment’s absolute nature—Congress shall not enact any legislation that restricts the right to free speech—is the primary distinction. Second, whereas the First Amendment of the United States talks about the freedom of speech and the press without mentioning “expression,” Article 19(1)(a) also mentions these concepts without mentioning “the press.” Third, our Constitution allows for reasonable restrictions to be enforced, whereas the US Constitution allows for speech abridgement. Fourth, any measure attempting to restrict free speech can only be approved if it is directly related to one of the eight topics listed in Article 19(2). This means that restrictions on free speech must serve the interests of eight designated subject issues under our Constitution.

In the case of Maneka Gandhi v. Union of India,[11] The ruling of the Apex court established the principle that official activity is susceptible to scrutiny on a number of grounds, including justice, reasonableness, and non-arbitrariness. It did this by significantly drawing upon U.S. precedents.

The court has frequently relied on precedents from other countries. The Delhi High Court cited Griswold v. State of Connecticut among other US rulings in its ruling in Naz Foundation v. NCT of Delhi. The court cited U.S. precedents including Furman v. Georgia, Proffit v. Florida, and Arnold v. Georgia in Bachan Singh v. Union of India. The United States Supreme Court’s ruling in Kovacs v. Cooper was cited by the Supreme Court of India in the Bennett and Coleman v. Union of India case.[12]

CONCLUSION

The Supreme Court nevertheless has serious concerns about the lack of clarity surrounding the essence of international law and how it interacts with national legislation. International law now governs a wide range of topics, including the environment and human rights. As a result, it is crucial to have a thorough understanding of international law. International law automatically becomes domestic law in certain nations. However, in India, until the parliament passes a suitable domestic law giving effect to the international law, the international law remains unenforceable. This complies with Article 253 of the Constitution and has been used in numerous cases, including State of West Bengal v. Kesoram Industries and Jolly George v. Bank of Cochin. However, this idea hasn’t always been followed, and international law has been given more weight in certain situations. Cases such as the National Legal Services Authority v. Union of India and Vishaka v. State of Rajasthan have elevated international law above national law. The state is directed by Article 51(c) to make an effort to uphold international law and treaty responsibilities, however it is unclear if this means the state should simply uphold treaties and accords to which it is a party or all treaties and obligations.

REFERENCES

1. Indian Evidence Act, 1872, § 45, No 1, Acts of Parliament, 1872 (India).
2. https://www.linkedin.com/pulse/short-explainer-proof-foreign-law-sudipto-sircar/, last visited on 29^th February,2024.
3. Indian Evidence Act, 1872, § 45, No 1, Acts of Parliament, 1872 (India).
4. https://blog.ipleaders.in/opinion-of-third-person-under-the-indian-evidence-act/#:~:text=Section%2045%20of%20the%20Indian%20Evidence%20Act%20provides,been%20gathered%20by%20him%20by%20practice%2C%20observation%2C%20studies., last visited on 29^th February,2024.
5. Dr. Avtar Singh, Principles of The Law of Evidence (CENTRAL LAW PUBLICATIONS 2020).
6. https://www.indialawoffices.com/legal-articles/Impact-of-Foreign-Law-on-Domestic-Judgments, last visited on 29^th February,2024.
7. https://indiankanoon.org/doc/1019207/, last visited on 29^th February,2024.
8. https://indiankanoon.org/doc/110813550/, last visited on 29^th February,2024.
9. https://indiankanoon.org/doc/1766147/, last visited on 29^th February,2024.
10. https://www.indialawoffices.com/legal-articles/Impact-of-Foreign-Law-on-Domestic-Judgments, last visited on 29^th February,2024.

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[1]  Indian Evidence Act, 1872, § 45, No 1, Acts of Parliament, 1872 (India).

[2] https://www.linkedin.com/pulse/short-explainer-proof-foreign-law-sudipto-sircar/, last visited on 29^th February,2024.

[3] Indian Evidence Act, 1872, § 45, No 1, Acts of Parliament, 1872 (India).

[4] https://blog.ipleaders.in/opinion-of-third-person-under-the-indian-evidence-act/#:~:text=Section%2045%20of%20the%20Indian%20Evidence%20Act%20provides,been%20gathered%20by%20him%20by%20practice%2C%20observation%2C%20studies., last visited on 29^th February,2024.

[5] Dr. Avtar Singh, Principles of The Law of Evidence 261 (CENTRAL LAW PUBLICATIONS 2020).

[6] https://www.indialawoffices.com/legal-articles/Impact-of-Foreign-Law-on-Domestic-Judgments, last visited on 29^th February,2024.

[7] https://www.indialawoffices.com/legal-articles/Impact-of-Foreign-Law-on-Domestic-Judgments, last visited on 29^th February,2024.

[8] https://indiankanoon.org/doc/1019207/, last visited on 29^th February,2024.

[9] Dr. Avtar Singh, Principles of The Law of Evidence 261 (CENTRAL LAW PUBLICATIONS 2020).

[10] https://indiankanoon.org/doc/110813550/, last visited on 29^th February,2024.

[11] https://indiankanoon.org/doc/1766147/, last visited on 29^th February,2024.

[12] https://www.indialawoffices.com/legal-articles/Impact-of-Foreign-Law-on-Domestic-Judgments, last visited on 29^th February,2024.

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