Comparative public law: Evolution in India

By Khushii Nahata

INTRODUCTION TO PUBLIC LAW


A state is defined as an autonomous political body that occupies a defined territory and whose citizens are unified to oppose external aggression and maintain internal order. This version emphasizes the state's "police functions." However, the state's modern-day tasks are no longer restricted to police; instead, it has evolved into a "welfare state," It protects and promotes the socio-economic growth of its residents from the cradle to the grave. It becomes essential to establish specific essential organs or instrumentalities to act on behalf of the state and aid it in completing its commitments to discharge the wide range of functions allocated to it, which emphasizes the importance of various government entities and the need for constitutional and administrative legislation to control their operations.


The law of the land can be split into two major categories when it comes to the discharge of governmental functions: the law managing the state and its interaction “with the citizens and the law governing and regulating the affairs of the citizens. Constitutional Law, Administrative Law, and Public International Law are under the first type of law, known as public law”,[1] whereas Contracts, Torts, and Property Law fall under the second category, known as private law.


As a result, public law can be defined as the body of law that rules the state and its organs and the relationships between private subjects (both individuals and artificial legal persons) and the state and its organs (legislature, executive, and judiciary).


THE MEANING AND DEVELOPMENT OF COMPARATIVE LAW


Comparison is a logical and inductive style of thinking that allows someone to assess the benefits and drawbacks of any norm objectively, practise, system, procedure, or institution compared to others or their own. People make comparisons in everyday transactions, such as when buying goods or services, investing, learning, or selecting a suitable leader for themselves or in their personal lives.


Comparative research becomes a tool that aids a person in making a decision. It is widely utilized in various fields, including natural and social sciences.


Comparative analysis in law entails a review of human experiences that occur in different jurisdictions' legal systems in different contexts. Comparative law is the study of laws from several states compared to one another. It is more of a method than a legal book or body of regulations. Globalization and liberalization have resulted in a rise in state-to-state trade interactions in modern times. As a result, there is no interconnection between diverse industries of different countries, which necessitated comparative law. The First International Congress of Comparative Law, which acknowledged and studied the comparative approach of law, was held in Paris in 1990 in response to the necessity of comparative law.


Comparative law was used in India as early as the pre-independence era, when the Law Commission of India deliberated on various models and policies relating to criminal liability in common law and civil law, as well as the existing indigenous law of various parts of India, during the formulation of the Indian Penal Code. In the Indian Constitution, comparative public law plays a prominent role. The preamble, fundamental rights, directive principles of state policy, parliamentary form of government, federalism, judicial review, amendments, equality before the law, equal protection of the law, and other topics “were primarily adopted after a comparative analysis of the constitutional laws”[2] of the United States of America, the United Kingdom, Canada, Ireland, Australia, and others during the drafting of the Indian Constitution.


“The role of comparative public law”[3] does not end with drafting the Constitution. Judicial decisions and scholarly studies based on foreign precedents and comparative constitutional literature drive subsequent constitutional developments. In the course of interpreting the Constitution and laws, the Supreme Court of India has referred to foreign judgments in several landmark judgments relating to equality, expressional freedom, business, property rights, “right to life and personal liberty, death penalty, right to privacy, religious freedom, and minority rights.”[4]


COMPARATIVE PUBLIC LAW'S SIGNIFICANCE


Globalization and technological advancement

Though still in its infancy, comparative public law has grown in popularity due to industrialization, globalization, and liberalization. Countries no longer exist in isolation, and the world has become one global market due to rapidly evolving technologies and the vanishing of national borders. People have begun to view every element of their lives globally. Personal liberty and privacy, for example, have become difficulties in the age of technical advancements, necessitating the expansion and recognition of fundamental constitutional values to cyberspace.


In light of this era, many countries' social, economic, and legal challenges are either similar or international. As a result, comparative public law enters the picture by first analyzing other jurisdictions' positions on the issue that one state is now facing and tackling transnational challenges through international collaboration, which necessitates a thorough understanding of other nations' laws.


Legislative Interpretation


Comparative public law is significant because it assists the judiciary in performing its duties in two ways. When it is necessary to interpret specific provisions of the legislation that the legislature has not thoroughly examined


Suppose the judiciary is presented with a scenario in which it must interpret the law, but the legislature's meaning is unclear. In that case, it might turn to the comparative interpretation of laws in different jurisdictions to understand what might be advantageous to the society at hand. It can either apply the same interpretation or adapt it by fitting it to society's current and future demands. In several cases, the Indian judiciary has relied on a comparative analysis of the positions of other jurisdictions on a given legal issue to reach a result. The majority judgement in Justice K S Puttaswamy v. Union of India, for example, emphasized that European law has incorporated the notion of proportionality, which is used to balance rights and competing interests. In addition, the majority opinion devotes an entire section to a comparative law analysis of the recognition of the right to privacy as a fundamental right in other jurisdictions. In Joseph Shine v. Union of India, Navtej Singh Johar v. Union of India, and Common Cause v. Union of India, the Supreme Court analyzed and relied on foreign jurisdictions' positions on adultery, consenting sexual activities between gays, and euthanasia and living wills, respectively.


Understanding the variations across the world's legal systems


The historical evolution of any society has a considerable impact on the formation of public law in that jurisdiction, particularly in terms of the difficulties they faced and how they dealt with them. Understanding the evolution of the principal legal systems' governance systems aids in determining “[5]how universally the premises of justice and other values are shared, as well as what moral assumptions, cultural traditions, historical experiences, and economic considerations are reflected in a society's attitude toward the problem of social control.”


Using the most effective methods


Comparative public law clarifies the views, conditions, and options available to all communities to protect and enhance democratic values. This comparison aids in recognizing and incorporating excellent practices from around the world's legal system into our own. "Comparative studies have been substantially justified in terms of the benefit they offer to the national legal system," according to Geoffrey Wilson. Recognized best practices about a specific public law issue aid in formulating appropriate laws and policies to address current issues and issues that may occur in the future; this also helps make the legal system more adaptable to society's evolving requirements.


Harmonization and International World Order


Comparative public law facilitates understanding between states in order to reduce global tensions. It aids in the resolution of disparities in public legislation between countries at similar stages of development. It also aids in minimizing the number of disputes that exist between nations as a result of political, moral, social, and historical differences. It also contributes to harmonizing the law, introducing uniformity and decreasing disparities.


THE COMPARATIVE PUBLIC LAW PROCESS


In terms of comparative law, there are two sorts of constitutional democracies. To begin with, constitutional nationalism, which holds that each nation has grown under different circumstances, whether social, political, economic, cultural, or historical, and that laws that address one nation's difficulties cannot be applied to another nation's problems. Second, constitutional cosmopolitanism holds that different cultures around the world are all parts of one larger civilization and that, while one legal system may differ from another to some extent, the basic set of principles and rules governing human behaviour and state institutions remains the same.

[1] Post author By ashwin, Comparative public law Enhelion Blogs (2021), https://enhelion.com/blogs/2021/12/05/comparative-public-law/ (last visited Jan 7, 2022). [2] Post author By ashwin, Comparative public law Enhelion Blogs (2021), https://enhelion.com/blogs/2021/12/05/comparative-public-law/ (last visited Jan 7, 2022). [3] Post author By ashwin, Comparative public law Enhelion Blogs (2021), https://enhelion.com/blogs/2021/12/05/comparative-public-law/ (last visited Jan 7, 2022). [4] Post author By ashwin, Comparative public law Enhelion Blogs (2021), https://enhelion.com/blogs/2021/12/05/comparative-public-law/ (last visited Jan 7, 2022). [5] Post author By ashwin, Comparative public law Enhelion Blogs (2021), https://enhelion.com/blogs/2021/12/05/comparative-public-law/ (last visited Jan 7, 2022).


Author: Khushii Nahata

Course: B.A legal studies student

Collage: O.P. Jindal Global University

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