COURSE MANUAL

COMPARATIVE PUBLIC LAW

2018-19

Instructor/s

Dr. Prabhakar Singh,

Associate Professor & Assistant Dean (research)

prabhakar@jgu.edu.in
 CONTENTS

PART I
General
Information………………………………………………………………………………Page

PART II

a. Course Description…………………………………………………………………………………Page

b. Course Aims……………………………………………………………………………………..Page

c. Intended Leaning Outcomes ……………………………………………………...........Page

d. Grading of Student Achievement………………………………………………….......Page

PART III
a. Keyword Syllabus……………………………………………………………………………Page
b. Course Policies………………………………………………………………………………..Page

PART IV

a. Weekly Course Outline ………………………………………………………….............Page

b. Readings…………………………………………………………………………………………Page
 PART I

General Information

General Information on, NAME OF THE COURSE, offered by Jindal Global Law School

Semester B of the AY 2018-19

The information provided herein is by the Course Coordinator. The following information contains the
official record of the details of the course.

This information shall form part of the University database and may be uploaded to the
KOHA Library system and catalogued and may be distributed amongst ____ year Law
students for B.A.LL.B./B.B.A.LL.B.; LL.B.; LL.M. courses if necessary.

Course
Title: Comparative Public Law
Course
Code:
Course
Duration: One Semester
No. of Credit
Units:

Level:
Medium of
Instruction: English
 PART II

a. Course Description

“[F]oreign laws are not taught at graduate level in Indian Law schools,
except Comparative Law Degree Courses at the Master’s level.” (Bar Council of India v. Balaji:
2018, para. 60)

What is “public law” that we aim to compare in this course? Public law would generally mean
constitutional and administrative law along with the law of procedure and criminal law (Ehrlich: 1921;
632). For the Indian Supreme Court comparative law is “foreign law”. The world as we know is
populated by two kinds of jurisdictions; common law and civil law. Public Law in India concerns itself
with the constitutional law.
India became a common law country during the long period of British colonialism. This meant
that Privy Council rulings as well as other commonwealth cases are case-laws applicable to India.
It would now appear that India, although a common law jurisdiction, has a whole range of
colonial and post-colonial statutes and customs that need a harmonious reading. The conversation
between the common law and the civil law in India is in fact regular and robust. We therefore need to ask
what constitutional interpretation in India is (Singh: 2019). How does case laws compare with statute
law? (Ponzetto & Fernandez: 2008).
And that is primarily a comparative law question, mostly an academic exercise, at most of
“persuasive value”. Comparative law in the classroom vis-à-vis in the court are certainly two very
different animals. In September 2018, the Supreme Court in Tripathi v Supreme Court of India (2018:
para 39 ff) and Krishnakumar v State (2015: para 24 ff) rulings wrote a separate heading titled
“comparative law”. Further, the Court in Puttaswamy v. Union of India clarified
“that comparative law has played a very significant role in shaping the … judgment on privacy in Indian
context, notwithstanding the fact that such comparative law has only a persuasive value.” (2018: para
84). In fact, the Court has tried to point to “the limits of comparative law” while analysing
“constitutional law, when the Court is confronted by a copious attempt, during the course of
submissions, to find meaning in the nature and extent of parliamentary privilege in India from decided
cases in the UK.” (Mehta v. Union of India: 2018: para 183). Indeed, the Indian Government spoke of
the “perils of comparative law” in Viswam v Union of India (2018: para. 70).
Neverthless, much earlier, in the Nanavati case, the Indian Supreme Court said “the framers of
the Indian Constitution were not only familiar and trained in British Jurisprudence but were familiar
with the American Constitution and they were drafting their Constitution in English language and
therefore to draw upon the American parallel would be wholly legitimate” (Nanavati case: 1964; para
64). The question of the sources of comparative law is always a concern for the state.
Besides, do Indian courts make a distinction between American and British cases? The Court
calls it “foreign law”. The Court often uses American and British case law as foreign precedent. There is
a constitutional and common law basis for applying pre-constitutional English law in Indian courts
under limited circumstances as mandated by Article 13 of the Indian Constitution. Moreover, there
exists a distinction between how the Court uses British law, as opposed to how it uses foreign precedent
that is not directly related to India’s colonial past, such as American, Australian or South African cases.
(Tripathi: 1946; Thiruvengadam, 2013).
Yet the most important issue of comparison, what are the rules and methods, remains generally
unanswered. As common law is inherently comparative, methodologically speaking, theories of
comparison—heuristic, descriptive and analytical—ought to govern law interpretation under the Indian
Constitution. The heuristic comparison aims to generate “new questions and problems”, the descriptive
“clarifies by contrasting”, while analytical seeks to ‘answer causal questions, to discover robust
tendencies, to test hypotheses.’ In October 2018, Pollock and Elman added “estranged” as the fourth
method for comparison. Far removed from these three methods, the “estranged” comparison aims to
‘introduce a certain distance from the paradigmatic nature of the comparatum’ in the process ‘unsettling
its self-evident nature, so that it becomes just one case among other possibilities’ (Pollock & Elman:
2018; 13-14). These are relevant theories of comparison for our course.
In 2012, a constitution bench of the Supreme Court spoke at length about “Constitutionalization of
free speech Comparative law: differences between the US and other common-law experiences” (Sahara
India case: 2012; para. 20). Overall, this comparative public law course will read the Indian constitution
as a document that promotes, albeit with caution, a comparative reading of laws. Regardless, laws that we
aim to compare range from commercial laws, corporate law, tax law, human rights law (e.g. Comparing
Indian citizens to citizen-like persons, see, Singh, 2018: 123–150) to administrative law (Paul: 2017;
196).
One should however note that the relationship of the sources of International Law too with
comparative law is as old as the UN Charter. Professor Gutteridge‘s classic text of 1949 titled
Comparative Law in the very introduction spoke of the ICJ Article 38(1)(c) on “the general principles of
law recognized by civilized nations” as expressing the spirit of the comparative law. Primarily we will
spend our time understanding, debating and discussing, both, the rules and the theories of comparison.
The University Grants Commission summarises the content of the CPL in 10 bullets as follows:

1. Comparative Law – Relevance, methodology, problems and concerns in Comparison

2. Forms of governments – Presidential and parliamentary, unitary and federal
3. Models of federalism – USA, Canada and India
4. Rule of Law – ‘Formal’ and ‘substantive’ versions
5. Separation of powers – India, UK, USA and France
6. Independence of judiciary, judicial activism and accountability – India, UK and USA
7. Systems of constitutional review – India, USA, Switzerland and France
8. Amendment of the Constitution – India, USA and South Africa
9. Ombudsman –Sweden, UK and India
10. Open Government and Right to Information - USA, UK and India

This syllabus resembles constitutional law. However, we will not use a textbook for CPL. Our texts and
materials are articles and cases that elucidate the above concepts.

b. Course Aims

The Comparative Public Law (CPL ) course seeks to bring clarity to the life of the law in India.
While for much of the time, the law lives in the Court; a significant part of it is lived in academic
discourses. We will ensure that by the end of the classes the students are armed with the right attitude,
method and understanding of the comparative public law in India and beyond. The course nonetheless
has no pretentions of a global law. We understand our comparative exercise as an effort to essentially
read law in the court as well as in the class. We will mostly focus on Indian law, scholarship and judicial
debates on comparison. To the extent India is a commonwealth jurisdiction we will look for comparisons
with other common law sates such as USA, UK and Canada.

The teacher expects the students to read the assigned reading material before the class without fail.
We aim to read not more than one paper and a case for the week, i.e. 2 items a week. Sometimes,
depending upon the nature, importance and/or the length of the paper or the material we could go into
multiple weeks. The teacher will name call students to answer questions. We aim to use PPT for a more
visual and vivid reading in the class. We can safely assume that we will stay mostly Socratic in the class.
For the teaching to remain fully Socratic however, all the students without exception must read the
assigned materials. Participation without reading materials, I am afraid, will kill Socrates again!

c. Intended Learning Outcomes

Course Intended Weightage Teaching and Assessment

Learning Outcomes Learning Activities Tasks/ Activities

By the end of the course, students

should be able to:
Class Participation 20 %
Class Presentation 10 %
Written Response 20 %
(1000 words)
End Term 50%

d. Grading of Student Achievement

To pass this course, students must obtain a minimum of 50% in the

cumulative aspects of coursework, e.g. moot, and final examination. End of
semester exam will carry 50 marks out of which students have to obtain a
minimum of 15 marks to fulfil the requirement of passing the course.

The details of the grades as well as the criteria for awarding such grades are provided
below.

Letter Percentage Grade Definitions

Grade Of marks
O 80% and above Outstanding Outstanding work
with strong evidence
of knowledge of the
subject matter,
excellent
organizational
capacity, ability to
synthesize and
critically analyse and
originality in
 thinking and
presentation.

A+ 75 to 79.75% Excellent Sound knowledge of

the subject matter,
thorough
understanding of
issues; ability to
synthesize critically
and analyse
A 70 to 74.75% Good Good understanding
of the subject
matter, ability to
identify issues and
provide balanced
solutions to
problems and good
critical and
analytical skills.
A- 65 to 69.75% Adequate Adequate knowledge
of the subject matter
to go to the next
level of study and
reasonable critical
and analytical skills.
B+ 60 to 64.75% Marginal Limited knowledge
of the subject
matter, irrelevant
use of materials and
poor critical and
analytical skills.
B 55 to 59.75% Poor Poor comprehension
of the subject
matter; poor critical
and analytical skills
and marginal use of
the relevant
materials.
B- 50 to 54.75% Pass “Pass” in a pass-fail
course. “P”
indicative of at least
the basic
understanding of the
subject matter.
F Below 50% Fail Fails in the subject

PART III

a. Keyword Syllabus

Common Law, statute law, the Constitution, Administrative law, Mass Tort, legal
transplant, Foreign law
 b. Course Policies

Cell Phones, Laptops and Similar Gadgets are allowed. They should however should not interfere with
classroom activities.

The spirit of comparing laws for justice guides our study of the CPL. What kind of law comparison allows
justice to win the day in the Court? What animates an academic in a comparative law class? These are
some of the starting and ending questions for this course. I request all the students to kindly read this
course manual carefully and diligently.
The teacher will divide the reading materials among all the students assigning it for reading and
presentation (by particular students(s).

Academic Integrity and Plagiarism

Learning and knowledge production of any kind is a collaborative process. Collaboration

demands an ethical responsibility to acknowledge who we have learnt from, what we have
learned, and how reading and learning from others have helped us shape our own ideas. Even our
own ideas demand an acknowledgement of the sources and processes through which those ideas
have emerged. Thus, all ideas must be supported by citations. All ideas borrowed from articles,
books, journals, magazines, case laws, statutes, photographs, films, paintings, etc., in print or
online, must be credited with the original source. If the source or inspiration of your idea is a
friend, a casual chat, something that you overheard, or heard being discussed at a conference or
in class, even they must be duly credited. If you paraphrase or directly quote from a web source
in the examination, presentation or essays, the source must be acknowledged. The university has
a framework to deal with cases of plagiarism. All form of plagiarism will be taken seriously by
the University and prescribed sanctions will be imposed on those who commit plagiarism.

Disability Support and Accommodation Requirements

JGU endeavors to make all its courses accessible to students. All students with any known
disability needing academic accommodation are required to register with the Disability Support
Committee dsc@jgu.edu.in. The Committee has so far identified the following conditions that
could possibly hinder student’s overall well-being. These include: physical and mobility related
difficulties; visual impairment; hearing impairment; medical conditions; specific learning
difficulties e.g. dyslexia; mental health.

The Disability Support Committee maintains strict confidentiality of its discussions. Students
should preferably register with the Committee during the month of June/January as disability
accommodation requires early planning. DSC will approve of and coordinate all disability
related services such as appointment of academic mentors, arranging infrastructural facilities,
and course related requirements such as special lectures, tutorials and examinations.
All faculty members are requested to refer students with any of the above-mentioned conditions
to the Disability Support Committee for addressing disability-related accommodation
requirements.

Safe Space Pledge

This course may discuss a range of issues and events that might result in distress for some
students. Discussions in the course might also provoke strong emotional responses. To make sure
that all students collectively benefit from the course, and do not feel disturbed due to either the
content of the course or the conduct of the discussions. Therefore, it is incumbent upon all within
the classroom to pledge to maintain respect towards our peers. This does not mean that you need
to feel restrained about what you feel and what you want to say. Conversely, this is about
creating a safe space where everyone can speak and learn without inhibitions and fear. This
responsibility lies not only with students, but also with the instructor.

PART IV

a. Weekly Course Outline

Week 1 What is Comparative Law?

Week 2 What is Comparative Method?

Week 3 Why compare USA, UK and Canada with India?

Week 4 What is common law: statute, case-laws and customary law

Week 5 Statutory Interpretation in common law

Constitutional Law as Comparative Law.

Week 6

Week 7 Presidential versus Parliamentary Form of Government

Week 8 States/provinces and the Indian Constitution

Week 9 Separation of Powers as Rule of Law

Week 10 Judicial Review

Form and substance in the rule of law

Week 11

Week 12 Form and Substance: continued ….

Week 13 Comparative Public Law as Governance

Week 14 Rule of law versus Governance of Law

Week 15 Revision and reflection

b. Readings
Books and Articles

1. Alexandrowicz, C.H. (1956) American Influence on Constitutional Interpretation in India,

American Journal of Comparative Law 5, 98–105.
2. Avi-Yonah, Reuven S (2010) Comparative Tax Law: Theory and Practice, Bulletin for
International Taxation, vol. 64, no. 3, 183-5.
3. Balganesh, S (2015) Codifying the Common Law of Property in India: Crystallization and
Standardization as Strategies of Constraint, Am J Comp Law 63, 33.
4. Chao Xi (2013) Local Courts as Legislators? Judicial Lawmaking by Subnational Courts in
China, Statute Law Review, vol. 34, 39–57.
5. Craig, Paul (2017) Comparative Administrative Law and Political Structure, Oxford Journal of
Legal Studies, vol. 37, pp. 946–965.
6. Dhavan, Rajeev (1958) Borrowed Ideas: On the Impact of American Scholarship on Indian Law,
American Journal of Comparative Law vol. 33, 505.
7. Frankfurter Felix (1947) Some Reflections on the Reading of Statutes, Columbia Law Review
47, 527.
8. Gerard Carney, Comparative Approaches to Statutory Interpretation in Civil Law and Common
Law Jurisdictions, Statute Law Review, 2015, Vol. 36, No. 1, 46–58.
9. Goodrich Peter (1985) Legal Hermeneutics: An Essay on Precedent and Interpretation’,
Liverpool Law Review 7, 99.
10. Jain, SC (2003) Indian Trends in the Interpretative Use of Legislative History, Statute Law
Review vol. 24, 63–76.
11. Lewis, TE (1931) The History of Judicial Precedent, Law Quarterly Review, vol. 47, 411.
12. Lorna Fox O’Mahony, Property Outsiders and the Hidden Politics of Doctrinalism, Current
Legal Problems, (2014), pp. 1–37.
13. Ludwik, Ehrlich (1921) Comparative Public Law and the Fundamentals of Its Study, Columbia
Law Review, Vol. 21, No. 7 , pp. 623-646 .
14. Ponzetto, Giacomo & Patricio A. Fernandez (2008) Case Law versus Statute Law: An
Evolutionary Comparison, Journal of Legal Studies vol. 37, pp. 379-430.
15. Rheinstein , Max (1952) Common Law and Civil Law: An Elementary Comparison, Revista
Juridica de la Universidad de Puerto Rico vol. 22 , 90.
16. Robinson, Nick (2013) Structure Matters: The Impact of Court Structure on the Indian and U.S.
Supreme Courts, American Journal of Comparative Law vol. 61, 173-208.
17. Seong-Hak Kim (2009) Customary Law and Colonial Jurisprudence in Korea, Am J Comp Law
57, 205.
18. Singh, Prabhakar (2018) More Norms, Less Justice: Refugees, the Republic, and everyone in
between, Liverpool Law Rev., vol. 39:123–150.
19. Singh, Prabhakar (2019) Spinning Yarns from Moonbeams: A Jurisprudence of Statutory
Interpretation in Common Law, vol. 40 Statute Law Review ff.
20. Thiruvengadam, Arun (2013) Forswearing ‘Foreign Moods, Fads or Fashions’? Contextualising
the refusal of Koushal to engage with foreign law, NUJS Law Review vol. 4, 595-612.
21. Tripathi, PK (1946) Foreign Precedents and Constitutional Law, Columbia Law Review vol.
57, 319.
22. Vakil, Raeesa (2018) Constitutionalizing administrative law in the Indian Supreme Court:
Natural justice and fundamental rights, International Journal of Constitutional Law vol. 16,
475–502.
23. Thomas Sargentich, The Presidential and Parliamentary Models of National Government."
American University International Law Review, 8 no. 2/3 (1993): 579-592.
24. Alison L. Young, The Rule of Law in the United Kingdom: Formal or Substantive, 6 Vienna J. on
Int'l Const. L. (2012) 259.
25. Robert Agranoff and Michael McGuire, American Federalism and the Search for Models of
Management, Public Administration Review, Vol. 61, No. 6 (Nov. - Dec., 2001), pp. 671-681.
26. Paul Craig, Formal and substantive conceptions of the rule of law: an analytical framework,
Public Law (1997) 467.
27. Paul R. Verkuil, Separation of Powers, The Rule of Law and the Idea of Independence, 30 Wm.
& Mary L. Rev (1989) 301.

Cases & Report

1. Delhi Transport Corporation v Mazdoor Congress [1990] Indlaw SC 224.
2. Justice KS Puttaswamy (Retired) and another v Union of India and others, 2018 Indlaw SC
898.
3. Kalpana Mehta and others v Union of India and others, 2018 Indlaw SC 295.
4. Mafatalal Industries Limited. v Union of India [1996] Indlaw SC 4128.
5. Sahara India Real Estate Corp. Ltd. & Ors v Securities & Exchange Board Of India & Anr,
2012 Indlaw SC 289.
6. Swapnil Tripathi and others v Supreme Court of India and another, 2018 Indlaw SC 891.
7. Synthetics and Chemicals Limited etc. v State of U.P. [1989] Indlaw SC 286.