The Italian Legal Model in India
by Domenico Francavilla
1. Introduction. – 2. The influence of the Italian Constitution on the Constituent Assembly and the Supreme Court of India. – 3. The idea of the code and the debate on the Uniform Civil Code – 4. The weight of the Italian model.
1. Introduction
The Indian legal system is a complex one in which over the centuries many different laws have interacted. The traces of this historical complexity remain today in a system characterized by the strong influence of the English common law model and, at the same time, by the persistence of traditional Indian models1. In this context the influence of civil law countries
might seem marginal, but we know that civil law models penetrated Indian law as a result of French and Portuguese colonial experiences, even though limited, and that the reception of English law in India has not prevented the circulation of civil law models at a doctrinal and legislative level. Even admitting a limited influence of civil law in India, still not obvious is the influence of an Italian model, which within civil law countries has a special position with respect to the French and German models.
However, investigation into the influence of the Italian legal model in India deserves to be conducted for a number of reasons. The first is that from an epistemological point of view negative data are no less important than positive data. A survey on the influence of the Italian model - doctrinal and legislative - outside Europe must be inclusive and must identify major but also minor influences and possibly even the absence of any influence or interaction. Being able to exclude any influence of a legal system over another would be as important as ascertaining actual influence. Certainly this result would be a very difficult one on the epistemological level. The affirmation of the absence of relations would always be open to new data that could falsify the hypothesis. A more robust - and elegant, in the meaning that is given to this term by mathematicians – result would be reached if it were possible to construct a theory of the impossibility of this influence. As for social sciences the question is actually extremely complex. One can find explicit and implicit relations, direct and indirect ones. In addition, an interaction that can be ascertained on the factual level is not necessarily worthy of note. I will further elaborate on these issues, but, to start with, the mere identification of factual references to Italian law in
1 See D. FRANCAVILLA, Il diritto nell’India contemporanea. Sistemi tradizionali, modelli
Indian law may be significant. One would almost wish that there were none, but, albeit limited, they are there2. This is not surprising, but the existence
of references does not necessarily mean that they are important, and that contact has left a mark.
Can minimum data really be significant in the study of legal systems? On this point, we can consider the following quote from an English comparatist and expert in Buddhist law, Andrew Huxley, according to whom
Parents are the best indicators of the nature of a legal system. Take the example of the People's Democratic Republic of Laos. The quickest way to find the essence of its legal system is consider its parents: a Marxist father and a French and colonial mother. If you want more information, you can consider the grandparents (including Napoleon and Rama I of Bangkok) and great-grandparents (including Bartolus and Shin Dammavilasa of Pagan)3.
In a genealogical perspective on taxonomies, any legal system has parents, grandparents, and ancestors. Here the cultural memes take the place of the genes4. The research perspective of memetics in law remains a
promising one, although it risks remaining a sort of metaphor and it is difficult to predict where it could lead us. In a hypothetical genealogy of Indian law, which could start from Vedic and Dravidian laws and come down to parents who might be identified in English common law, Hindu law and Muslim law, there is no room for civil law, let alone Italian, parents5. We
cannot expect Italian law to be a parent or a more or less close relative – as French law could be – of the law of India. Nevertheless, in the study of cultural transmission even minor influences count; cultural units can be transmitted not only by parents but also by friends and acquaintances, even to very narrow sections of a particular legal experience: even minimal data can become important.
In this paper I will focus on the influence of the Italian model on the law of independent India. The theme could be approached in a broader manner, seeking contacts and influences dating back to the earlier periods in the history of law. Some discoveries, for example, might be made by considering the existence of Christian communities, and with them of Canon Law, in India since ancient times. Some points can be mentioned with reference to the colonial period. In a historical perspective, the massive penetration of English common law in the colonial period must not make us forget that the Portuguese, Dutch and French were also colonizers, and that there are still traces of this influence of civil law in some areas. But above all, British 2 A quick search in the Indian Kanoon database gives the following rough indication: a search for "English law" returns 6415 results; "French law" 148; "German law" 53; "Portuguese law" 50; "Italian law" 32; "Spanish law" 4.
3 A. HUXLEY, Si può parlare di sistemi giuridici religiosi?, in Daimon, 1/2001, p. 190 (translated by the author).
4 In the definition of Dawkins, a meme (mimeme) is a cultural element that can be transmitted by non-genetic means, especially by imitation, as is apparent from the etymological meaning.
5 Huxley himself highlights the fact that a genealogical taxonomy can identify more than two “parents”.
colonial law itself is not a mere replication of the English legal system. The British knew that they could not reproduce the experience of their motherland in India.
An interesting reference to Italy in medieval times may be found at a crucial phase of the development of colonial policy. Lord Macaulay, President of the First Law Commission and the father of codification in India, described the situation in India in the following terms:
I believe that no country ever stood so much in need of a code of law as India, and I believe also that there never was a country in which the want might be so easily supplied. I said that there were many points of analogy between the state of that country and the fall of the Moghul Empire, and the state of Europe after the fall of the Roman Empire. In one respect this is very striking. As there were in Europe then, so there are in India now, several systems of law widely differing from each other but co-existing and co-equal. As there were established in Italy at one and the same time, the Roman law, the Lombard law, the Ripurian law, the Bavarian law, the Salic law, so we have in our Eastern Empire Hindu law, Mahomeddan law, Parsee law, English law, perpetually mingling with each other and disturbing each other, varying with the person, varying with the place. In one and the same cause the proves and pleading are in the fashion of one nation, the judgment is according to the laws of another. An issue is evolved according to the rules of Westminster and decided according to those of Banaras. We must know that respect must be paid to feelings generated by differences of religion, of nation and caste … We propose no rush innovation … Our principle is simply this – uniformity where you can have it – diversity where you must have it – but in all cases certainty6.
Aside from this interesting reference, the cultural penetration in India of the Roman law tradition should not be underestimated. Colonial judges like Thomas Erskine Perry were educated in Roman law also. Erskine is the author of an English translation of Savigny: Von Savigny's Treatise on possession, or, The Jus possessionis of the civil law translated from the German (1848). It is remarkable that in the preface this translation is presented as a work useful to judges in colonial India. The penetration of the common law model does not prevent civil law from being relevant, to a greater extent in some parts of India such as Goa and Pondicherry, but also all over India, as a secondary but not unimportant doctrinal model or as a legislative model, which, irrespective of the specific content of norms, proved to be an effective one in the Indian context.
However, it is the law of contemporary India that is particularly interesting because since Independence in 1947 Indians have been more open to foreign legal influence. The emancipation of Indian law from English law and the development of a properly Indian jurisprudence has led to the recovery of some traditional concepts, an affirmation of Indian specificity which is not only cultural but also social, a reinterpretation of some of the 6 Debate in Parliament on the Charter Bill, 10 July1833, quoted in J.K. MITTAL, Indian Legal and Constitutional History, Allahabad, 2004, p. 210.
doctrines of common law, as well as an opening-up to other models and solutions that presented themselves as suitable for the socio-legal development of the new India.
In the sections below I will identify some influences of the Italian model in India. Some can be traced to the impact of the Italian Constitution on the work of the Indian Constituent Assembly, and later on the decisions of the Supreme Court, others to the strength of the idea of code with reference to the debate on the adoption of the Uniform civil code in India. Other influences I will consider are more limited. Finally, some observations will be made on the significance of these influences.
2. The influence of the Italian Constitution on the Constituent Assembly and the Supreme Court of India
The Indian Constitution was promulgated in 1949 and entered into force in 1950, immediately after the Italian Constitution. In the drafting of the Indian Constitution constitutions of various countries were knowingly drawn on as models. For example, the US model was adopted for the part on fundamental rights, while the Parliamentary system is inspired by the British model. The idea of including a section devoted to the Directive Principles of State Policy was taken from the Constitution of Ireland. The controversial part concerning the state of emergency has its basis in the model of the German Reich and the Government of India Act, 19357. Within
the Constituent Assembly there were some very critical views on the use of these foreign models, and this is indicative of the fact that since the beginning of the history of independent India the tension between two ways, both Indian, of understanding legal identity had been manifested. On one hand, there were those who considered Western models not alien and certainly valuable and, on the other hand, there were those who aspired to separation from these models now that they were no longer imposed by colonial power, and to a greater autonomy to be based on indigenous values. The mediation between these extreme positions can be expressed in the words of one of the founding fathers of India, Ambedkar8, according to
whom:
One likes to ask whether there can be anything new in a Constitution framed at this hour in the history of the world. More than hundred years have rolled over when the first written Constitution was drafted ... Given these facts, all Constitutions in their main provisions must look similar. The only new things, if there can be any, in a Constitution framed so late in the day are the variations made to remove the faults and to accommodate it to the needs of the country.
7 On the genesis and features of the Indian Constitution see D.D. BASU, Introduction to the Constitution of India, New Delhi 2004.
8 The quote comes from the works of the Constituent Assembly and may be read in BASU,
This opinion, which became the view of the majority in the works of the Constituent Assembly, shows how independent India did not want to understand itself as separate from the finest expressions of Western legal culture and freely chose to follow in their wake. The models were chosen, however, with discrimination, as is apparent from the fact that a range of constitutional experiences were taken into account, each of them evaluated both in terms of formal aspects and in terms of difficulties that had emerged in application, in order to avoid replicating wrong choices as far as possible. The most interesting aspect of the quotation from Ambedkar, however, is the reference to the adaptation of the models to the needs of the country, which was facing huge problems of social cohesion and development.
The Constitution is based on the incorporation of several constitutional models and combines in its structure parts that are present in some constitutions and not in others. This method helps to account for the length of the Indian Constitution, given that drawing on a number of models makes it longer than individual original models9. As observed by Amirante, it «must
be emphasized how much the founding fathers have drawn freely on comparative constitutional law, demonstrating a knowledge of foreign constitutions which may be paralleled only by the bravery in assembling institutions borrowed from legal systems being different among them»10. In
this context, references are made to the Italian Constitution already in the debate in the Constituent Assembly and later in the decisions of the Supreme Court of India.
A first point of interest is that the Italian experience is cited in a number of important judgments relating to the amendment of the Constitution of India, where the fundamental doctrine of the basic structure is developed.
Until the late '60s, the dominant opinion was that the Constitution did not place any limits on its own review. In 1967 the Supreme Court stated, in the Golakh Nath case11, that the part of the Constitution relating to fundamental
rights was not subject to constitutional amendment, arguing that even a law of constitutional amendment should be considered included in the provisions of art. 13(2) of the Constitution, according to which «The State Shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void».
This judgment of the Supreme Court led to a conflict with Parliament, which approved the Constitution (24th Amendment) Act 1971, under which it was made clear that a constitutional amendment approved in accordance with Article 368 should not be construed as a "law" pursuant to art. 13. The question came immediately before the Supreme Court in the Keshavananda case of 1973, based precisely on the assessment of the constitutionality of the amendment of 197112. The Court ruled in favor of its validity, returning
to the doctrine of the possibility of amending the part of Constitution relating to fundamental rights. But the same ruling confirmed a principle 9 The original Constitution was composed of 395 articles and 8 annexes. It was therefore extremely long and it is even longer today, considering its subsequent amendments.
10 D. AMIRANTE, India, Il Mulino, Bologna 2007, p. 53.
11 L.C. Golak Nath v. State of Punjab, AIR 1967 SC 1643.
stated in the Golakh Nath case, namely the principle of non-modifiability of the "basic structure" of the Constitution. According to this doctrine, as noted by Jain13:
while Parliament can amend any constitutional provision by virtue of Art. 368, such a power is not absolute and unlimited and the courts can still go into the question whether or not an amendment destroys a fundamental or basic feature of the Constitution. If an amendment does so, it will be constitutionally invalid. The justification for this judicial view is that the expression ‘amend’ in Art. 368 has a restrictive connotation and could not comprise a fundamental change in the Constitution.
The definition of the features of the Constitution that make up the basic structure has been accomplished only by way of example in the Keshvananda case and remains a matter of constitutional interpretation. In any case, the doctrine of basic structure was explained with particular regard to the republican and democratic form of government, the federal structure, the principle of separation of powers, secularism and the core of fundamental rights. While it is possible to amend Part III on fundamental rights, these rights cannot be substantially compressed and judicial review must be preserved.
As part of a broader discussion of various constitutional texts, which there is not room to describe here, in the Keshavananda case the Supreme Court makes precise reference to Italy and observes that:
Thus, the true ground of division, by virtue of the nature of the Constitution, is whether it is flexible or rigid. That depends upon whether the process of Constitutional law-making is or is not identical with the process of ordinary law-making. A typical instance of a flexible Constitution is that of the United Kingdom. The Constitution of the former Kingdom of Italy was also flexible, so flexible indeed, that Mussolini was able profoundly to violate the spirit of the Constitution without having to denounce it. The Constitution of the United States is rigid, as it cannot be amended without the special machinery being set in motion for that purpose.
Other references to Italy and the constitutional referendum are found in the Golak Nath case 14. In addition, a long passage is quoted from Modem
Political Constitutions (1963) by C.F. Strong on the limits of the sovereignty of Parliament, in which the Italian Constitution is described as a significant example among recent constitutions. In particular, the passage by Strong refers to the non-modifiability of the republican form of government. Clearly
13 M.P.JAIN, Indian Constitutional Law, New Delhi 2004, p. 1629.
14 Describing the possible methods for the amendment of the constitution, it is mentioned that one of these methods «demands a popular vote, referendum , or plebiscite as in Switzerland, Australia, Ireland, Italy, France and Denmark».
more references are made to the U.S. Constitution, but it is not without significance that in this framework there is no lack of references to Italy15.
If in the constitutional interpretation regarding the revision of the Constitution the Italian experience is referred to, along with many other experiences, in the work of the Constituent Assembly, a limited but qualifying feature emerges which makes the Italian Constitution particularly significant, that is, its post-totalitarian character. The Constituent Assembly of India operated in the difficult context of the transition from the period of colonial rule, and the Constitution aimed at finding a solution to deep tensions affecting the country.
In the works of the Constituent Assembly of India on August 4, 1949 an aspect of great importance is debated: the relationship between the Executive and the Parliament, the proclamation of the state of emergency, and the suspension of fundamental rights. Shri Kamath makes a contribution that deserves to be quoted in full. Noting how India finds itself in a crisis, he makes reference to the Italian situation, the memory of which was still very much present, and praises the ability of the Italian Constituent Assembly to establish adequate counterweights to the power of the executive power and thus to protect rights:
We are pleading, Sir, in season and out of season, that we are passing through a crisis. I am sure that the Italian Constituent Assembly, when it met two years ago soon after World War II was over, was faced with no less grave a crisis. There was danger of upheaval within the State and Communists were rising against the State. Italy was a border State between the Russian bloc and the Western bloc and it was wedged in between the two, and it was thus subjected to various stresses and strains. Even then, the Italian Constituent Assembly which adopted the Constitution in 1947 did not go so far as we are going today. What did they do? They were faced with a very grave crisis, the Communist near-insurrection within the State: and as. we all read in the papers the other day, there were free fights within the Chamber of Deputies in the Italian Assembly when the Atlantic Pact was ratified. The Constituent Assembly adopted, however, an article, with a view to meeting the grave crisis confronting the State, but they provided adequate safeguards, and the relevant article in their Constitution reads thus "When in extraordinary cases of necessity and urgency, the Government oil its own responsibility adopts provisional measures having the force of law, it must on the same day" (in the U.K. the Act provides that Parliament must be summoned in five days) "present it for conversion into law by the Chamber which, if dissolved, should be convoked for the purpose and assemble within five days. The decrees lose effect as on the date of issue if not converted into law within-60 days of their publication. The Chambers may, nevertheless,
15 «Thus, for example, the American Constitution, the oldest of the existing Constitutions, asserts that by no process of amendment shall any State, without its own consent, be deprived of its equal suffrage in the Senate, while among the Constitutions more recently promulgated, those of the Republics of France and Italy, each containing a clause stating that the republican form of government cannot be the subject of an amending proposals».
regulate by law political relationships arising from decrees not converted into law." 16
The reference is to art. 77 of the Italian Constitution17. The outcome of
this debate remains in the need for a parliamentary passage even in the case of proclamation of Emergency, as provided for by art. 35218.
Undoubtedly the constitutional experiences of the United Kingdom and the United States were considered of the utmost importance, but the Italian constitutional experience, because of its proximity in time and the many similarities in terms of context has a significant impact and, unlike the cases in which it is mentioned together with many others, a distinctive one.
3. The idea of the code and the debate on the Uniform Civil Code
After Independence, in India there was extensive debate on what measures to take to reform the system of personal laws that came down to modernity from the past. This system has ancient roots in the Indian legal tradition, although its institutionalization was one of the defining elements of colonial policy, with the introduction of the system of the “listed subjects” in 1772: in the field of family law and succession, Hindu law applies to Hindus, Islamic law to Muslims, and their own specific law to members of other communities.
The Constituent Assembly was faced with a particularly complex situation with regard to personal laws. On the one hand, many believed that a uniform civil law would be the best incarnation of the principle of secularism in India, marking clearly the separation of law from religion. On the other hand, to proceed with the enactment of a uniform civil code at the beginning of the legal experience of the Republic of India would have been a very
16 Constituent Assembly of India - Volume IX (4th August 1949).
17 Art. 77 Cost.: «Il Governo non può, senza delegazione delle Camere, emanare decreti che abbiano valore di legge ordinaria. Quando, in casi straordinari di necessità e d'urgenza, il Governo adotta, sotto la sua responsabilità, provvedimenti provvisori con forza di legge, deve il giorno stesso presentarli per la conversione alle Camere che, anche se sciolte, sono appositamente convocate e si riuniscono entro cinque giorni. I decreti perdono efficacia sin dall'inizio, se non sono convertiti in legge entro sessanta giorni dalla loro pubblicazione. Le Camere possono tuttavia regolare con legge i rapporti giuridici sorti sulla base dei decreti non convertiti». Note the erroneous translation of “rapporti giuridici” with “political relationships”.
18 Art. 352, Constitution of India: «Proclamation of Emergency: (4) Every Proclamation issued under this article shall be laid before each House of Parliament and shall, except where it is a Proclamation revoking a previous Proclamation, cease to operate at the expiration of one month unless before the expiration of that period it has been approved by resolutions of both Houses of Parliament Provided that if any such Proclamation (not being a Proclamation revoking a previous Proclamation) is issued at a time when the House of the People has been dissolved, or place during the period of one month referred to in this clause, and if a resolution approving the Proclamation has been passed by the Council of States, but no resolution with respect to such Proclamation has been passed by the House of the People before the expiration of that period, the Proclamation shall cease to operate at the expiration of thirty days from the date on which the House of the People first sits after its reconstitution, unless before the expiration of the said period of thirty days a resolution approving the Proclamation has been also passed by the House of the People».
challenging and dangerous endeavor because of the risk of increasing social unrest. For this reason the project was postponed and only a constitutional provision was adopted, but in the part dedicated to directive principles, art. 44, according to which: "The State shall endeavor to secure for the citizens a uniform civil code throughout the territory of India."
The Constituent Assembly debate on art. 44 was heated. Two passages can be mentioned with reference to our theme. The first refers to the experiences of the countries of continental Europe as a whole, and argues that uniform civil codes cannot be regarded as detrimental to minorities:
When you want to consolidate a community, you have to take into consideration the benefit which may accrue to the whole community and not to the customs of a part of it. If you look at the countries in Europe, which have a Civil Code, everyone who goes there from any part of the world and every minority has to submit to that Civil Code. It is not felt to be tyrannical to the minority19.
A second, more incisive, passage contains a direct reference to Italy:
Now again there are Muslims and there are Hindus, there are Catholics, there are Christians, there are Jews, in different European countries. I should like to know whether different personal laws are perpetuated in France, in Germany, in Italy and in all the continental countries of Europe20.
Already in the work of the Constituent Assembly, Italy enters the debate on the uniform civil code as an example of a codified civil law country, and it is not without importance that the countries to which mention is made are three and that Italy appears together with France and Germany.
Sixty years after the Constitution, the system of personal laws still exists, and the debate on the need for more legal uniformity arises periodically. The subject of discussion is the usefulness and desirability of proceeding to uniformise family law, especially when is remembered that the uniform civil code would be the result of choices made from the above, in contrast to the typical pluralism of Indian society.
The terms of the issue are well expressed in the judgment of the Supreme Court in the Shah Bano21 case, which concludes with an observation
regarding the advisability of adopting a uniform civil code. Recalling art. 44 of the Constitution, which is still a "dead letter," and noting that there is not any official initiative to provide the country with a common civil code, the Court observes:
A common Civil Code will help the cause of national integration by removing disparate loyalties to laws, which have conflicting ideologies. It is the State which is charged with the duty of securing a uniform civil
19 Constituent Assembly of India – volume VII, Thursday (9th December, 1948).
20 Ibidem.
code for the citizens of the country and, unquestionably, it has the legislative competence to do so. A beginning has to be made if the Constitution is to have any meaning. Inevitably, the role of the reformer has to be assumed by the courts because it is beyond the endurance of sensitive minds to allow injustice to be suffered when it is so palpable. But piecemeal attempts of courts to bridge the gap between personal laws cannot take the place of a common Civil Code.
In other words, only the legislature has the power to implement this part of the Constitution and, in the absence of this structural reform, the task of the courts is to work to protect the rights within the existing limits of the legal system. The achievement of uniformity is felt by many as necessary for modernization of the legal system.
Other references to the importance of Italy for the idea of code can be found in a more recent judgment, in which once again Indian judges are in favor of the uniform civil code22. Referring to the specificity of Goa, Daman
and Diu, it is remarked that at least in this area of India there is a uniform family law, which has its basis in the Portuguese Civil Code of 1867:
It is stated that the Code is the outcome of teachings of the contemporaneous French, German and Italian jurists. Civil Code regulates matter relating to family, contracts, succession and property. This was universally followed by all communities, Hindus, Muslims and Christians. This Code has the unique distinction and the privilege of already having a "Uniform Civil Code", as envisaged by the Founding Fathers of the Constitution under Article 44 of the Constitution of India, which equally governs and regulates the juridical relations of its citizens, irrespective of their race, sex, caste or creed.
This passage suggests Italy’s "prestige" with regard to the code. The Italian model has weight in the legislative debate about one of the most sensitive issues of contemporary Indian law. Here this applies with reference to the idea of code, while other references to Italian law may be on matters of more detail. For example, an interesting reference is made in a decision23,
with regard to the protection of possession, to a rule introduced as early as the colonial period and contained in the Specific Relief Act 1963 (1877):
Under the German and Italian Civil Codes, the right of possession exists even in the case of possession that is wrongful as against the owner of the property; under these Codes possession is recognised even as a provisional or temporary title against the true owner; and even the true owner cannot claim back the property summarily or by force, for otherwise there may be a breach of the peace. The same principle, has under the Specific Relief Act, been followed in India. The law requires that the true owner should bring an action at law for the restitution of his right of possession. If this is not done, i.e., if 22 Shri Damodar Ramnath Alve v. Shri Gokuldas Ramnath Alve, 1997 (4) BomCR 653.
possession is forcibly recovered, the person dispossessed has a remedy to regain his possession; that remedy is called a possessory remedy. But the owner also has his remedy against the wrongful possessor, and that is called a proprietary remedy; Possessadorium, i.e., a possessory right is a possessory remedy, and petitorium, that is a proprietry suit, is the remedy for the disturbance of proprietary right.
Here we have a rule that is the outcome of a complex circulation of Romanistic models already in the colonial period, which emerges in case law with a reference to the Italian and German civil codes.
4. The weight of the Italian model
Other references to Italy in the debates of the Constituent Assembly of India or in case law could be listed. For example, in the Bachan Singh case, which is the landmark case on the death penalty in India, a reference is made to the abolition of the death penalty in Italy, although along with many other countries and so one might not attribute to this a particular meaning24.
Equally marginal, but interesting from a cultural point of view, is a reference to Italy in the context of the constituent debate on the issue of multilingualism:
Therefore, I believe we will have to wait till the time when a language in India develops itself and matures to that stage when we can make it our official language and our national language. To replace an international language like English, very expressive, rich ill vocabulary, easy and simple in construction, and one which is recommended to be the international auxiliary language, is almost impossible. Probably Shakespeare decided the national language of England once for all, and for Italy probably Dante decided it. Like that, some literary genius will in future, according to me, decide the national language for India. A national language can be decided upon only by mutual agreement. It cannot be done by taking votes; that is what I believe. No language can be imposed upon an unwilling people. No nation has ever succeeded in imposing the language of the majority upon the minority25.
Another reference to Italy, but again along with other countries, in a decision of the Supreme Court is made to the appointment of judges26.
Indian judges rely on information about Italy that can be found in English texts. The question of (non-) knowledge of the Italian language, or of the difficulty of access to sources is obviously not a matter of little consequence, as is clear from this passage in another case in which the discussion is about the formation of the government, and in which the court, while considering the Italian experience interesting, regrets that it is not able to analyze it:
24 Bachan Singh Etc. v. State Of Punjab Etc., 1982 AIR 1325, 1983 SCR (1) 145.
25 Constituent Assembly of India - Volume IX (12th September 1949).
It may be pointed out that France and Italy have witnessed fractured verdicts over several decades in their Parliaments, unlike in British where except on three or four occasions a single party has commanded the majority in the House. Hence the experience of France and Italy in formation of their Governments could have thrown some light on the problem with which we are faced, but unfortunately I am handicapped as despite my best efforts I have not been able to get any literature from those countries27.
More significant are the cases in which the Italian experience is considered for the importance that some specific problems had within it. An example is the case of telecommunications law. In a ruling on TV rights, monopolies and freedom of expression28, the Court refers to a book by Eric
Barend, Broadcasting Law (1993), which presents a comparative study of Britain, France, Germany, Italy and the United States of America and an article by the same author, "The influence of the German and Italian Constitutional courts on Their National Broadcasting systems", Public Law, Spring 1991, and draws freely from them. Thus it is possible to read about RAI and Berlusconi in an Indian ruling29.
Regarding the influence of the Italian model on Indian legal science, it should be noted that Indian legal science as a whole has not traditionally been characterized by critical study of the law, although there are of course exceptions and although the situation is rapidly changing due to the high level of education offered by the National Law Schools. Here too there is a language barrier, but circulation may be mediated by English translations of Italian authors or works in English that deal with Italian law. It should be noted in this regard that the teaching of comparative law is not yet widespread in India.
As a conclusion, the Italian legal model has had an influence on Indian law, but the weight of this influence is difficult to assess. The mere fact that
27 H.S. Jain And Ors., Etc. v. Union Of India (Uoi) And Ors., Etc. 1996, (1997) 1 UPLBEC 594.
28 The Secretary, Ministry Of Information and Broadcasting vs Cricket Association Of Bengal, 1995 AIR 1236, 1995 SCC (2) 161.
29
«In Italy too, the broadcasting was under State control, to start with. In 1944, Radio audizioni Italia (RAI) was created having a monopoly in broadcasting. … In 1976, the Constitutional Court ruled (Decision 202/76 (1976) Giurisprudenza Constituzionale 1276) that while at the national level, the monopoly of RAI is valid, at the local level, it is not, since at the local level there is no danger of private monopolies or oligopolies emerging a hope belied by subsequent developments. This ambiguous decision resulted in establishment of a large number of private radio stations in Italy notwithstanding the re-affirmation of RAI's national monopoly in 1981 by the court. One of the major rather the largest - private television and radio networks which thus came into existence is the $7 billion Fininvest Company, controlled by Silvio Berlusconi (the Ex-Prime Minister of Italy, who resigned in December, 1994). It owns three major TV networks in Italy. This development prompted the Constitutional Court, in 1988, to call for a prompt and comprehensive regulation of private broadcasting containing adequate anti-trust and other anti- monopolistic provisions to safeguard pluralism. Accordingly, a law was made in 1990 which devised a system for licensing private radio and television stations».one can find references to Italy in judgments or in other Indian sources still does not say much about the character of this influence.
We must make some distinctions. Intellectual curiosity can lead to influence but in complex ways. One may very well know something without actually being affected, if not in the very general sense that everything with which we come into contact influences us. Another aspect is that one can be influenced by something without explicitly referring to it and without evidence of this influence. The influence can be direct or indirect, and influence does not necessarily lead to reception. But the condition for influence to occur is that the model must be known and considered as significant. It may be that making reference to some aspects of Italian law this is misunderstood or oversimplified, in any case reported in a distorted formulation. To refer to a legal experience from the point of view of another can also have various functions on the pragmatic level. One can selectively cite a model to value a given solution but also to discredit it. The influence of a legal model can be supported by a feeling of general cultural similarity. It can be made possible by the interest of the individual as well as structural programs of cooperation, a point on which Italy is undoubtedly behind other non-English-speaking European countries such as France and Germany.
Italian influence on Indian law has come into existence along the line of a perception of similarity, with particular reference to some aspects of the Constitution, and, in private law, within the context of a general influence of civil law countries with particular regard to codification. To this may be added that Italian law is and increasingly will be important in India as European law. Finally, there is a dynamic dimension to the question regarding the possible future influences of the Italian model on Indian law, which should be thought of as working in two directions. There are systems which are more or less open to dialogue with other models and the Indian system can be considered an open one. Indian jurists are open to dialogue with civil law jurists, because they have many more things in common than what one would normally think30. Indian and Italian lawyers have an interest
to communicate with each other, more and more to the extent that lawyers from different backgrounds and origins are engaged in thinking legally about solutions to common problems and global issues.
