Social Justice, Culture and Tradition in Comparative Constitutional Law- SAARC Perspective
october 30, 2019
All the different constitutions give emphasis basic rights and that is the reason it varies from country to country as the different problems may be faced by different countries and sometimes the problems which is faced by Sri Lanka or Nepal may not be a same situation in India. So this is very difficult in all these basic rights to have uniform approach in different countries. As per the Universal declaration of Human Rights the cruel and unusual punishments should not be imposed. But what is this cruel and unusual punishment varies and death penalty is considered to be one such punishment. Now the condition of India is different where capital punishment in form of death penalty is imposed. There has been ever increasing murder cases and we have huge pendency of criminal law cases are present. These are the problems faced by particular country and thus accommodation of legal principles according. But basic rights we have to protect in Constitution of any country. Now the comparative constitution is a need of judicial globalization. Prof. Anne Marie coined this term Judicial Globalization.
Basic rights are to be protected and there should be some mechanism to resolve major problems like terrorism, environmental legal problems, bank fraud, and the money laundering etc. through interaction with the judiciary of various countries. Mechanism should evolve and is evolving not to raise the dispute over conflicts but to settle the protection of basic rights in different countries and uphold the doctrine of Rule of Law. There is social mechanism to resolve the problems in the age of judicial globalization. Now also the matters of serious commercial transactions disputes are settled by arbitration and the various countries have International arbitration body, this is part of judicial globalization. Poverty is another important issue, so how to remove poverty and protect social rights of people is a major concern in the era of Judicial Globalization.
India is home for population of corers of people having different cultures, traditions, religions, languages etc. So, the method of integration cannot be completed as easily as being agreement signed but the integration is through federation. The integration of peoples’ culture, living, minds, needs and social and economic rights are required. There is no comparison of these dimensions and thus courts in their judgments negating foreign precedents would have adopted the approach that suits to Indian conditions. For example U.S. does not subscribe to equality as much as India subscribes to it. In India equality in unequal situation is primary goal for which various legal practices are adopted for example the system of reservation. Some of ht American judges have been following precedents of India for understanding the term equality. Following the foreign precedents or laws we cannot have the same basic structure that is required to be different from other countries; we could not have PIL for social justice and locus standai.
Recognizing the diversity and to have uniformity with differences to be respected Lloyd Law College, best law colleges in Delhi, organized South Asian Colloquium on Commonwealth Comparative Constitution and Public Law on 16th & 17th of January, 2018 which witnessed the presence of eminent judges, lawyers and academicians from SAARC nations
Lloyd Law College