"International law defines the legal responsibilities of States in their conduct with each other, and their treatment of individuals within State boundaries. Its domain encompasses a wide range of issues of international concern, such as human rights, disarmament,
international crime, refugees, migration, problems of nationality, the treatment of prisoners,
the use of force, and the conduct of war, among others. It also regulates the global commons, such as the environment and sustainable development, international waters, outer space, global communications and world trade."[1]
With the surging recognition and prominence of International Law, any domestic concern is no longer wholly domestic. People are associating any local concerns to a global dimension as the number of treaties rises, ultimately bolstering the support they receive. India has made notable contributions to international law, especially in the development of human rights law, environmental law, arbitration, and trade law.
The burgeoning implication of public international law, such as Human Rights Law, Economic Law, and so on, is a reflection of expanding globalisation and the concomitant requirement to retain a good rapport. International commitments cannot be neglected in modern times because the penalties imposed, in the form of sanctions, are too severe in our globalised economy.
In India, Judiciary has assumed a proactive role and given due regard to international laws in numerous instances. However, India appears to be reticent to adopt treaties that limit its sovereignty with respect to the application of international laws and overtly assign domestic courts a judicial enforcement power to implement and apply the various international laws.
The ideas embodied in the Universal Declaration of Human Rights (UDHR) shaped the Indian Constitution, which was ratified on November 26, 1950. The major goal of the UDHR, which was adopted by the United Nations General Assembly, is to defend and preserve the core fundamental rights which all individuals deserve and need. The Constitution has quite explicitly expressed the country’s stance with respect to the application of International Law to domestic instances. Article 253 of the Constitution states that
“Notwithstanding anything in the foregoing provisions of this Chapter, Parliament has power to make any law for the whole or any part of the territory of India for implementing
any treaty, agreement or convention with any other country or countries or any decision made at any international conference association or other body.”[2]
As indicated, any international law is applicable in India so long as it does not directly contradict domestic law. In several rulings, the Indian judicial system has assimilated this approach and clarified the applicability of international law to local instances. The Indian Constitution is deafeningly quiet on the place of international law in the Indian legal system. It neither obligates nor authorises the judiciary to make decisions based on international law.
Article 51:
“The State shall endeavour to—
(a) promote international peace and security;
(b) maintain just and honourable relations between nations;
(c) foster respect for international law and treaty obligations in the dealings of organized peoples with one another; and
(d) encourage settlement of international disputes by arbitration”[3]
Although Article 51 of the Constitution expressly mentions the extent of regard to be given to international treaties and agreements, it is only a Directive Principle and not an obligation.
In Jolly George v. Bank of Cochin[4], the Court held that until municipal law is interpreted in a way it accommodates the treaties, the municipal law shall prevail.In State of West Bengal v. Kesoram Industries[5], the Supreme Court adopted the "Doctrine of Dualism" and concluded that a treaty entered into by India cannot become law of the land until Parliament
initiates legislation for the same complying with Article 253.Doctrine of Dualism is based on the premise that the international law and municipal are not unity and are different to a certain fundamental extent. By adopting this view, one can make out a lucid distinction between international obligation, which is not regulated by any body, and an obligation under Domestic Law, regulated by a fully functioning executive.
When standards of international law and domestic law disagree, courts must make challenging decisions. Whether international law takes precedence over domestic law or vice versa is critical for an international tribunal. If the issue appears before a domestic court, the answer is determined by how extent the state's constitutional legislation authorises the courts to apply international law directly. Almost invariably, in domestic courts when a norm of international law is ostensibly governing, the ruling raises the issues.
Diplomatic immunity conferred by international law, for example, would be useless unless sanctioned and validated by domestic law. A cumulative reading of Articles 253,73 and 246 of the Indian constitution, as well as Entry 14 of List I of the Seventh Schedule, leads to the conclusion that the executive and legislative power in the matter of accessing into and incorporating International treaties go hand in hand.
In Keshavanada Bharti v. State of Kerala[6], Honourable Chief Justice commented that, "When the wording of the municipal legislation is ambiguous or contradictory, the court must seek the backing of the parent international authority of that specific municipal law. This is because Article 253 of our Constitution grants our parliament the only authority to enact legislation to give effect to any treaty, convention, or agreement with any country, as well as any decisions taken at any international conference." [7]
In the case of Shri Krishna Sharma v The State of West Bengal[8], the Calcutta High Court held that if Indian statutes clash with international law, Indian courts must uphold domestic law. In doing so, the courts will ensure that such interpretation does not clash with the rights and responsibilities of international law, and if such a scenario emerges, domestic law will take precedence. In ADM Jabalpur v Shivkant Shukla9, the court decided that if two constructions of local law are conceivable, the court would choose the one that is consistent with international law.
Numerous cases can certainly be cited where the cases have taken a reformist approach to incorporate principles of International Law while dealing with domestic issues.
In National Legal Services Authority v. Union of India[9], the Supreme Court acknowledged transgender as a third gender category in conformity with International Human Rights Law and held that
"If parliament has made any legislation which is in conflict with international law, then Indian courts are bound to give effect to the Indian law, rather than international law. However, in the absence of contrary legislation, municipal courts in India would respect the rules of international law."[10]
The Supreme court deduced in Vishaka v. State of Rajasthan[11], a case involving sexual harassment of women at work, that due regard must be accorded to international agreements and standards while interpreting domestic law when there is no discrepancy between them and there is a lacuna in the same. The court also heavily relied on the Convention on the Elimination of All Forms of Discrimination Against Women(CEDAW)(1979) to form the ‘Vishaka Guidelines’ after which sanction was given by the legislature and the void was filled with the incorporation of Sexual Harassment of women at the workplace (prevention, prohibition and redressal) Act, 2013
The court in Neelabati Behera v. State of Orissa[12]relied on Article 9(5) of the Covenant on Civil and Political Rights (1966), an international treaty, while awarding compensation to the victim regarding custodial violence and death .Furthermore, in Chairman Railway Board v. Chandrima Das[13], the court applied UDHR principles when broadening the ambit of Article 21 of the Constitution. The court extended security to rape victims of foreign nationals as well.
Personal laws, on the other hand, are one field where courts have not sought to embrace international standards. It is indisputable that personal laws must be modified to facilitate gender equality and justice. Such a recognition only emphasises and underscores the significance of the judiciary, cementing confidence in the Judiciary to deliver justice at any cost.
At the moment, international obligations are only utilised to supplement existing domestic legislation. The courts have simply enlarged the reach of domestic law to the point where international law can be brought under its cognizance. Presently , only the Vienna Convention
(Article 27) requires a state to fulfil its international obligations even if it contravenes domestic law (pacta sunt servanda). The exemption to Article 27 is referenced in Article 46 of the Vienna Convention, which allows for the breach of such international obligations if they are opposed to a "rule of its internal law of fundamental importance."
It is undeniably true that there is unresolved inconsistency that must be tackled. India as a country has a long way to go in terms of eliminating the grey in the interpretation of international law in a domestic setting.
[1]U.N., Uphold International Law (2020), https://www.un.org/en/sections/what-wedo/uphold-internationallaw/;What is International Law?, Findlaw(February 10, 2022), https://hirealawyer.find law.com/choosing-theright-lawyer/international-law.html [2] India Constitution, Art 253. [3] Indian Constitution Art 51. [4] Jolly George v. Bank of Cochin, 1980 AIR 470. [5] State of West Bengal v. Kesoram Industries, AIR 2005 SC 1646. [6] Keshavanada Bharti v. State of Kerala, (1973) 4 SCC 225 [7] Id. [8] Shri Krishna Sharma v The State of West Bengal, AIR 1954 Cal 591. 9 ADM Jabalpur v Shivkant Shukla, AIR 1976 SC 1207. [9] National Legal Services Authority v. Union of India, AIR 2014 SC 1863. [10] Id. [11] Vishaka v. State of Rajasthan, AIR 1997 SC 3011. [12] Neelabati Behera v. State of Orissa, 1993 AIR 1960. [13] Chairman Railway Board v. Chandrima Das, AIR 2000 SC 98.
This article is written by Vikram Krishnan of Tamil Nadu National Law University.