 to the constitution as a means of democratization.
The drafting of the Constitution became the first priority of every culturally variant state aspiring that it could help them out to resolve differences. The spread of constitutionalization and judicialization (profane increase in functioning of court) all over the world have raised the demand of comparative analysis.
nations in order to curb terrorism, could make a comparative analysis and at last, could recommend nations (already having anti-terror laws) that what else modifications they could include in order to strengthen their laws against terrorism and basic structure to nations (which don't have the anti terror laws). Even domestic courts take help from international law to understand certain legal circumstances and decide the cases.
We could see that the basic rights covered by international documents are mainly included in the domestic laws of the signatory countries. It binds the signatory parties to follow the prescribed modules while forming their domestic laws.
(Chattopadhyay) According to Montesquieu, principles of laws should be adopted supporting the people for whom they are made. There is no doubt that comparative constitutional law includes categorical study of constitutional law, jurisprudence and political institutions.
Even various constitutional courts all over the globe had based their decision on Comparative constitutional laws. Every nation made their domestic laws based on certain principles which have been internationally recognized. There are various examples where comparative constitutional analyses have played their roles. For eg, the issue raised regarding unconstitutionality of death penalty, South Africa had well analyzed legal history of the state of India, Hong Kong, Germany, Zamaica, Tanzania, etc.
Even when we rose up the issue of gender identification and sex orientation, courts in USA (in 2 major cases of Lawrence vs. Texas (in which court struck down a Texa Statue for criminalizing homosexual conduct) and Ropers vs. Simons) had formed the verdict had even referred to foreign judgments too. Hence, in this way, comparative constitutional analysis is necessary for adding or modifying constitutional provisions for better understanding of the subject and resolving it. Constitutional supremacy has evolved in America but today has been adopted by more than 100 countries today.
Inculcates provisions which provide for establishment of main governmental institutions, explaining relationships between them, provides privileges to them and mechanism for their removal.
Provisions mentioning separation of powers among governing institutions.
All the rights and freedoms granted to the citizens of the country and provisions regarding remedies to be given on their infringement.
Mechanism for amending or modifying the Constitution keeping certain basic features to be in mind (which cannot be amended).
Provision regarding set up of independent judiciary giving them the power of Judicial Review the governmental works and authorize them to make any Act unconstitutional if they are against the basic features of the constitution.
It had been seen that mainly constitutional theory and practical application in the 3 major countries i.e. Germany, Canada and South Africa had been major derivations of revelation to global jurists. Comparative Constitutional Laws provide the learning, implementation, expounding of legislations set up by a nation's constitution. Comparative method provides to fill in the gaps which have been there in our constitution in a better way.
More comparison provides us with the best idea in which we can resolve the problems in our country. Although it had been seen that different societies have distinct circumstances, but the needs and abilities of humans did not vary much. The main advantage of comparative analysis is that it specifies the similar or dissimilar situations with that of other countries and hence, to improve our legal system through the experiences of others.
If we talk about working of legal systems, it differs from nation to nation because of different cultures, customs, values, ideologies, etc. Let's take an example of Adultery (extramarital sexual intercourse with a married woman) laws in different countries. Starting from India, adultery is no more a criminal act hereafter the 2018 verdict laid down by SC bench headed by the then CJI Mr. Dipak Mishra.
The court scrapped the 150 years old law by stating that it is in violation of women rights and dignity and husband could not be controller of wife. Besides this, adultery is still a valid cause to take divorce. But the verdict was not whole heartedly because their tradition and customs consider adultery as an immoral act. Besides Hinduism, Islamic and Christianity also considered adultery as a sinful crime for which even execution of offenders was granted. Even not only in India but all around the ancient world, it is believed to be a wrongful act. Extreme painful punishments were given like Public Hanging, stoning, whipping, Genital Mutilation and other of tortures (till the death of offenders).
Even today, there are several countries which still preserve adultery as a punishable offence. In Philippines, adultery is a crime for women and fornication for men. Revised Penal Code punishes wife and her adulterous partner for 6 months imprisonment (once proved). Chinese marriage laws made adultery as a ground for divorce. Japan decriminalized adultery in 1947, South Korea in 2015. Taiwan made adultery legal finally on 29th May 2020.
Before this, a case was filed in 2002, where the statute declaring adultery as a crime was challenged but at that time it was upheld by court believing it as constitutionally valid. Mostly, major European countries had also decriminalized adultery like England, Italy, Luxembourg, France, Switzerland, Belgium, Portugal, Greece, etc. Turkey considered adultery laws as not valid because it had been violating equality between men and women. Countries following Islamic laws consider adultery as a sin like Saudi Arabia, Somalia and Pakistan even punishes the offender with death penalty.
The common ground among the countries that had decriminalized is that the laws were violating the equality between men and women. The global transferring of constitutional ideas had been there in legal academics also. Even Indian courts have relied on international precedents. Like in Naz Foundation case, SC had referred to three international decisions i.e. Lawrence vs. Texas (invalidate the criminalization of homosexual intercourse), Dudgeon vs. United Kingdom and National Coalition for Gay and Lesbian Equality vs. Minister of Justice.
Accordingly, comparative analysis plays an immense role in providing a path towards changing the whole jurisprudence. South African Constitution formulated in 1996 and courts formed have been identified as a result of apartheid movement, which brought new change in the governance of country and a way forward for the black's rights and identity in other countries too. Then, Britain, Canada, Israel and New Zealand have marked as a source of Parliamentary styled sovereignty. These countries have even made certain amendments to their constitution to include Bill of Rights and Judicial Review.
Fair Information Practices Principles (FIPP) are a set of principles that prescribes how data should be handled, stored, and managed to maintain fairness, privacy, and security in a rapidly growing global technological environment.
These principles were a result of a Commission appointed by the government of the United States which inquired into the way data is collected, used, and regulated. These principles are deemed to be the bedrock of modern data protection laws across the world. The FIPPS further inspired the Organisation for Economic Cooperation and Development (OECD) Privacy Guidelines which aimed at providing a framework for harmonizing national privacy legislations amongst OECD members.
The OECD Guidelines are deemed to be the first internationally agreed-upon statement of information privacy principles and have significantly influenced data protection framework around the globe such as the European Directive 95/46/EC on the processing of personal data and the free movement of such data (Data Protection Directive), 2004 Asia-Pacific Economic Cooperation Framework (APEC Framework) as well as data protection legislation of Australia, New Zealand, and Japan.
In the EU, the right to privacy is a fundamental right that seeks to protect an individual's dignity. The European Charter of Fundamental Rights (EU Charter) recognizes the right to privacy as well as the right to protection of personal data. Data Protection Directive was the first principal EU legal instrument on data protection and was influenced by the OECD guidelines.
The fast-changing data landscape led the EU to update its regulatory environment on data protection. The product of this process is the EU General Data Protection Regulation of 2016 (EU GDPR). The GDPR sets out seven key principles of lawfulness, fairness, and transparency; purpose limitation; data minimization; accuracy; storage limitation; integrity and confidentiality (security); and accountability. The EU GDPR is one of the most stringent data protection laws in the world and unlike the previous Data Protection Directive, GDPR being regulation is enforceable as law in all Member States.
Japan's Act on the Protection of Personal Information was amended to bring it closer in line with the EU's General Data Protection Regulation (GDPR).
by requiring the deleting or disclosure of personal information (PI) in case of violation of the data subject's rights or legitimate interests; in the event of a breach. It also includes short-term data as previously the data was held for six months or more.
Companies are required to notify the individual and the data privacy authority (Personal Information Protection Commission (PPC) in case there is an event that potentially causes the violation of individual rights and interests. The report to PPC shall state the situation followed by a more detailed report as to the causes and remedial measures implemented.
The Amendment clarifies that the provisions, obligations and penalties will now apply to the entities outside of Japan as well, that supply of goods and services and handle PI from an individual in Japan.
The Amendment aims to expand the number of accredited organizations providing PI protection advice or privacy certificates to organizations and companies.
Penalties for violation of the law have been increased up to �100M (around US$1M). individual violation of a PPC order would result in up to 1year imprisonment or a fine of up to �