Looking beyond boundaries- developing a model Comparative Constitutional Law curriculum for India & South Africa
Paper presented at the 2013 CLEA Conference in Durban
Advocate, Supreme Court of India, New Delhi, India
‘Legal pedagody’ across the globe is going under a profound ‘change’; a change ‘in continuum’ due to the forces1 which have shaped and alter the very discourse of governance. Although, the realm of ‘comparative law’ is above a century old2, the vast scholarship which has been accumulated over a period of time reflects the need, importance and relevance of the subject matter. However, in last two decades there have been more writings, scholarships on particular stream of law like Comparative Constitutional Law, Comparative Judicial Process, etc. Consequentially, the courses like ‘Comparative Constitutional Law’ has been actively pushed in the law school curriculum to equip the young law graduates as a ‘global legal professional’ to face the global challenges in the global society; of which the essential characteristics are – “a shrinking world with enlarged interconnectedness, facilitating a sense of dialogue among people, institutions and organizations leading to a universalisation of pattern of governance & liberal values, transcending cultural, social & economic ideas affecting the life and living of individuals in a cosmopolitan world weaving altogether a new society”.
The debate surrounding use of comparative resources by the courts is quite old.The South African Constitution authorizes courts to ‘consider foreign law’3 while interpreting provisions of constitution whereas the Indian Supreme Court often resorts to comparative resources without any such express authorization. The plethora of scholarships on the subject matter of use and misuse of comparative resources by the courts has triggered a kind of debate and has leveled serious allegations like ‘Cherry- picking use of comparative resources’. In absence of a concrete theory and uniform practices/ guidelines of using comparative resources while interpreting the Constitutional texts – has always painted a picture of chaos rather than clarity. Present paper proposes to delve upon this subject matter as how the constitutional experience of each other, which has similar socio- economic problem, a diverse society to govern through a basic document upholding Rule and principle of constitutionalism. Having said so, this paper limits itself to two important aspects i.e. ‘socio- economic rights’ and ‘basic structure theory’. With this analysis, it also aims to evolve a kind of working mechanism to be incorporated in the course curriculum of Law Schools of both countries which can usher a new vista of constitutional interaction (in academics as well as in practice).