Different countries had different methods of incorporating international law into their domestic legal system. These methods gave shape to two theories Monist theories and dualist theories, India follows the second theory, and therefore, it does not incorporate international law into the Indian legal system. Indian Constitution provides provisions for effective implementations of international law like Article 51(c) fosters respect for international treaties and agreements and the State should fulfill their treaties obligations. Indian Judiciary plays an active role in resolving conflict between international and domestic law through various case laws like State of West Bengal vs Kesoram Industries Ltd, it also took the recourse to international law to construct domestic law like Vishakha vs the State of Rajasthan. Indian Judiciary ensures effective implementation of international law when there is no legislation for it and fosters respect for the same. Therefore, this blog examines the role of the Indian judiciary in the implementation of international law in India in the context of relevant constitutional provisions.
States are free to enter into any international treaties, agreements, and customs. Although international law does not incorporate into the legislation of India. This can create a conflict between international and domestic law as the Government of India needs to fulfill the obligations of international treaties and agreements but at the same time, it should not violate the domestic law of India. Indian Judiciary plays a role in resolving such conflicts between international and domestic law. It also plays role in the effective implementation of international law by citing them in various cases, ensuring respect for them, and providing statements in cases that ensure the importance of international law in the legal system. This blog will explore definitions of international law and domestic law, provisions for the implementation of international treaties, agreements, and the role of the judiciary in the implementation of the same.
International Law and Domestic Law
According to the United Nations, “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.” There are five sources of international law i.e., treaties, custom, general principles of law, judicial decisions, and legal scholarship.
While domestic law or municipal laws mean laws that apply within the State or are internal laws of the State. Thus, municipal law is the national, domestic, or internal law of a Sovereign State. Municipal law includes law at the national level and the state, provincial, territorial, regional or local levels.
While Domestic law makes such a distinction between laws, international law doesn’t make a distinction in such matters of ordinary law and constitutional law. Though International law requires States to ratify international treaties and fulfill the obligations that were there in the treaties.
State follows a different process of implementation of international law into their domestic legal system, depending on their constitutional provisions. Different countries follow different methods to implement international law in their country. These methods are categorized into two theories; Dualist and monist theories.
Monist and Dualist theories
Monist theories: – In this theory, the idea is that both international and domestic laws are the same in nature and are manifestations of a single conception of law. This theory views international law and municipal law as a part of a universal body of legal rules binding all human beings. In monist theory, international law is immediately incorporated after the country ratified it. Usually, the treaties under such a system are self-executing treaties that are there are judicially enforceable upon ratification of the treaty.
Dualist theories: – According to dualism theories, international law and municipal law represent entirely two distinct legal systems. International law does not become part of the domestic legal system. It needs to be translated into state legislation before courts can apply it.
If one analyses the constitution of different countries, it will be observed that most developing countries give preference to municipal law rather than international law. Thus, keen on emphasizing their sovereignty. Also, in monist theory international law prevails over domestic law while the same cannot be said about dualist theory, as domestic law always prevails over international law.
Constitutional Provisions in Implementing International Treaties
To know how the Indian Judiciary implements international law in India, it is important to know the constitutional provisions which ensure that high regard is given to international law and international morality. Indian Constitution was greatly influenced by the value of the Universal Declaration of Human Rights whose primary motive is to protect and preserve the basic fundamental rights to which all human beings are entitled. India follows dualism theory and doesn’t allow international treaty that is ratified by India to be automatically enforced in the Indian legal system but the constitution also provides the Indian Government adheres to its treaty obligations. Given below are the brief articles of the Constitution which provide the basis for the implementation of international law in India: –
Article 51(c): –It says that foster respect for international law and treaty obligations in the dealings of organized peoples with one another. It was inspired by the Declaration of Havana 1939 which proclaimed the ‘unshaken faith of the parties in international cooperation and promoting international peace and security. Although it does not obligate or authorize the judiciary to enforce international law in their decision-making.
Article 73: -This article provides the Government of India power to make laws that extend the executive power of the Government. It says the Extent of executive power of the Union
(1) Subject to the provisions of this Constitution, the executive power of the Union shall extend
(a) to the matters concerning which Parliament has the power to make laws
(b) to the exercise of such rights, authority, and jurisdiction as are exercisable by the government of India by any treaty on the agreement: Provided that the executive power referred to in sub-clause (a) shall not save as expressly provided in this constitution or any law made by Parliament, extend in any State to matters with respect in which the Legislature of the State has also the power to make laws.
Thus, this enables the government to enter into any treaty or agreement and ratified it and can make laws that enforce the obligations given under those international treaties and agreements.
Article 253: –This article provides that Parliament has the power to make any laws 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.” Notwithstanding the division of Power between State and Centre.
Thus, these articles provide the Parliament with the exclusive power to implement international law into the domestic legal system. Article 51 provides for respect to international treaties; Article 73 provides extended power to the Government of India to make laws regarding international treaties and Article 25 can implement the international agreement in the whole country. Although limitations are provided on the executive power of the Government of India the Supreme Court will ensure that international law is not in conflict with municipal law and if it does thenthen municipal law will prevail.
Role of Indian Judiciary in implementing International law
The State aimsto ensure the implementation of international law in our domestic legal system and if not, then the court ensures the same except when the international law conflicts with municipal law then municipal law will prevail as referred in the case of Gramophone co. of India Ltd v/s Birendra BahadurPandey. Indian judiciary is not empowered to make legislations but it interprets India’s obligation in international law by pronouncing decisions in municipal or local cases concerning issues of international law. So Indian judiciary has been playing a very active role in implementing India’s international obligations under international treaties.
Indian Judiciary whenever necessary took recourse to international law to reaffirm their decision in the case of Vishakha v. the State of Rajasthan, the SC took recourse to the International Convention for construction of domestic law. The court observed that In the absence of domestic law occupying the field to formulate effective measures to check the evil of sexual harassment of working women at all workplaces, the contents of International Conventions and norms are significant for the interpretation of the guarantee of gender equality, right to work with human dignity in Articles 14, 15, 19(1)(g) and 21 of the Constitution and the safeguards against sexual harassment implicit therein and it also said that held that international conventions not inconsistent with fundamental rights must be read “to enlarge the meaning and content thereof.”
Indian Judiciary also constructs existing laws to implement the international treaty in a way that laws thatpre-exist and are consistent with the treaty obligation. Also, one of the works of the Judiciary is to foster respect for international law. Article 51 under the Directive Principle of State policy,was given to respect the international law and treaty obligations by the State. Although it is not justiciable enforceable if statutory legislation that is interpreted in consistent with the domestic law is vague and is capable of more than one meaning then the treaty itself becomes relevant and if one of the meanings which can reasonably be ascribed to the legislation is consonant with the treaty obligations and another or others are not, the meaning which is consonant is to be preferred.
The relevancy of international law in the domestic legal system and its effective implementation is seen through orders and statements made by the judges in the court which act as a guidelinethat is followed by the State. The Courts have tried to answer the questions regarding international law through various cases. Given below are the Judgements that ensure the dualist theory of international law, respect for international law, and effective implementation of it.
- Keshvanada Bharti vs the State of Kerala: – The landmark case which provide us with the basic doctrine theory in 1973, also talked about the effectiveness of international law in India. The Honourable then Chief Justice of India A.K. Sikhri talks about international about Article 51 that when there is a situation where the language of the municipal law is vague or contrary then the court must take the support of the parent international authority of that particular municipal law. This is because Article 253 of our constitution gives exclusive power to our parliament to make laws for giving effect to any treaty, convention, or agreement with any country or any decisions made at any international conference.
- State of West Bengal vs Kesoram Industries Ltd.- in this case, the Calcutta High court said that a treaty entered into by India cannot become a law of the land and it cannot be implemented unless Parliament passes a law under Article 253. Therefore, it reemphasized the point that India follows dualism theory.
- Vishakha vs State of Rajasthan (1997): – In this case while constructing the guidelines for preventing sexual harassment of women inthe workplace. The court took recourse to international laws i.e.,the Convention for Elimination of All Forms of Discrimination Against Women (CEDAW). The Court observed: “In the absence of domestic law occupying the field to formulate effective measures to check the evil of sexual harassment of working women at all workplaces, the contents of International Conventions and norms are significant for the interpretation of the guarantee of gender equality, right to work with human dignity in Articles 14, 15, 19(1)(g) and 21 of the Constitution and the safeguards against sexual harassment implicit therein. Any international convention not inconsistent with the fundamental rights and in harmony with its spirit must be read into those provisions to enlarge the meaning and content thereof, to promote the object of the Constitutional guarantee.”
- Jolly George Varghese and Another v. The Bank of Cochin (1980): – the court tried to deal with the question of linking domestic law and human rights and took recourse to Article 11of the International Covenant on Civil and Political Rights (ICCPR) with Contractual provisions under municipal law to protect human rights of the civil debtor whose personal liberty was at stake due to judicial process under Section 51 (Proviso) and Order 21, Rule 37, Civil Procedure Code.
- National Services Authority Act 2014: – in the case where transgender was recognized as the third gender, the court also mentioned international law in domestic law “If parliament has made any legislation which conflicts 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.”
There are many more case laws that manifest the role of the Indian Judiciary in the implementation of international law like Neelabati Behera v. the State of Orissa (1993), Chairman Railway Board v. Chandrima Das (2003)and showcase the respect for the international treaties ratified by the Indian Government.
Indian Judiciary is the source of checking on the legislature and executive powers to restrain the government to exercise excess power and also to ensure the effective implementation of both domestic and international law. The Indian Constitution embodies the basic framework for the implementation of international treaty obligations undertaken by India under its domestic legal system. International law does not become law immediately after ratification by the State. International law needs to be incorporated intothe domestic legal system by the law passed by Parliament. This is the reason international law is not justiciable enforceable in the Courts. Although, the Indian Judiciary plays an active role in the implementation of international law. It cites international law when there is no inconsistency between them and there is a void in domestic law. Indian courts have tried to incorporate and utilize international law in many of their judgments and decisions subject to the provision that they are consistent with the domestic laws of the land. Thus, this strengthened the applicability of international law in the domestic legal system.
This article is authored by Shrishti Verma.
- Dr. Sunil Kumar Agarwal, IMPLEMENTATION OF INTERNATIONAL LAW IN INDIA: ROLE OF JUDICIARY, Dean Maxwell & Isle Cohen Doctoral Seminar in International Law, June 14, 2010
- Vivek Sehrawat, IMPLEMENTATION OF INTERNATIONAL LAW IN INDIAN LEGAL SYSTEM (2021) Vol. 31: Iss.1, Article 4, Florida Journal of International Law<https://fjil.org/wp-content/uploads/2020/07/4_Sehrawat_NC.pdf>, accessed 21st August 2021
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