Borrowing and Transplant in South Asian Constitutionalism: Comparative Analysis

The study at hand posits that the phenomenon of constitutional borrowing and transplant in South Asia is evident in both big-C and small-C constitutional frameworks. This text submits that the demonstration of shared constitutional features encourages borrowing through constitutional similarities. The journey of constitutional formation in South Asia following decolonisation is frequently infused with global commitment to rights. The growing significance of international law and globalisation has contributed to the upsurge of constitutional transplants as a trend in South Asia. The present research illustrates how the rise of judicial activism in favour of welfare for average citizens in South Asia functions as a precursor to the adoption of constitutional borrowing. The assertion is put forth that when extra-constitutionalism takes hold, the constitutional behavioural patterns in this region remain homogeneous. Therefore, lending and borrowing occur in two distinct ways: plausibly and abusively. Several factors, such as colonial legacy, legal education, and the active role of constitutional experts in the workflow of constitutionmaking, contribute to the increase in constitutional borrowing and transplantation in South Asia. This argument proposes that the consideration of context specificity is imperative in the study of comparative public law and should not be brushed aside. Simultaneously, judicial art that considers globalisation is more beneficial to justice than parochialism.