Judicial borrowing and creeping influences: Indian jurisprudence in Sri Lankan public law

Abstract

ABSTRACTThe significant developments in Sri Lankan public law in the last three decades have been due to the explicit or implicit influence of Indian jurisprudence. This influence can be seen in Sri Lanka’s jurisprudence on the right to equality, the habeas corpus writ, the “basic structure” doctrine, the interpretation of the rules of standing, and in the fundamental rights jurisprudence. Since the establishment of British colonial rule, English common law has been the foundation and source for the development of Sri Lanka’s public law. Three methods characterize a recent turn to Indian jurisprudence in the development of public law. One method is of direct judicial borrowing. The second method is reinforcement of judicial reasoning by reliance on Indian jurisprudence. The third is the creeping influence of Indian jurisprudence. I argue that these developments unsettle, if not replace, the historical reliance on English law. These developments are arguably an indication of a nascent Sri Lankan common law that draws its inspiration, at least in part, from a jurisprudence that bears constitutional proximity to India. Consequently, the place of English common law as the “main source of law” in Sri Lankan public law has now been weakened.