Legal Transplantation and Borrowing by The Indian and Australian Courts: A Comparative Law Approach

Abstract

Alan Watson in his seminal book published in 1974, “ Legal Transplants: An Approach to Comparative Law” discusses the relationship of law and society and the factors accounting for a legal change in any society. He notes that changes in a legal system are due to legal transplants: the transfer of legal rules and institutions from one legal system to another. In this context, the Indian and Australian legal systems provide an interesting comparative law study owing to the fact that there are a lot of similarities between the two systems in terms of their historical and socio-cultural contours. Foreign rules and doctrines are often borrowed in the context of legal practice in order to fill a vacuum or a gap in the legal theory and regulation and also to meet a particular need in the importing country. Therefore, apart from the structural and historical similarities, the concepts of “legal borrowing” or “ legal transplantation” also bridge the gap between two or more systems. Thus, the paper while looking into the similarities of the two countries in their respective constitutions and common law systems, assesses how from the very inception of the Indian Constitution, Indian courts have referred to the decisions of other courts for guidance, including in particular to that of the High Court of Australia. Gradually, even the Australian courts have made use of the Indian law and therefore, there has been a mutual judicial borrowing. In this background, the paper studies the extent to which Australian judicial decisions have been referred to by the India courts and vice versa. The aim of the paper is to find analogues between the two systems through a comparative law analysis. This is done by doing an analysis of the existing literature, judicial decisions of India and Australia and the available socio-legal documents of the both the countries.