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ANALYZING THE ROLE OF INDIAN COURTS IN THE INTERSECTION BETWEEN PUBLIC INTERNATIONAL LAW AND INDIAN DOMESTIC LAW.
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ANALYZING THE ROLE OF INDIAN COURTS
IN THE INTERSECTION BETWEEN PUBLIC INTERNATIONAL LAW AND INDIAN DOMESTIC LAW.
AUTHORED BY
- EESHAN SINHA
Introduction
Intersectionality between public
international law and Indian domestic laws explores a complex yet fascinating area
where global legal frameworks intersect with local judicial practices. As
globalization intensifies, the relationship between international treaties and
national legislation becomes increasingly significant, particularly in
countries like India where societal norms are deeply ingrained within the
fabric of its diverse culture. This paper examines how international laws
influence Indian domestic statutes across various sectors including human
rights, environmental protection, and trade regulations, highlighting both
synergies and conflicts. Through this exploration, it aims to delineate the
challenges posed by the interaction between different legal systems while
suggesting pathways towards more effective integration that respects both
universal mandates and unique cultural contexts. The Indian Constitution is the
supreme law of the land, and the legal system in India is based on a
hierarchical framework of rules. This relationship is made more complex by the
court system's involvement in resolving conflicts between domestic and
international laws, as well as the absorption of international treaties and
conventions into domestic law.[1]
This paper will examine the subtleties of the relationship between Indian
domestic laws and public international law, as well as the difficulties in
implementing it. In the past, the ideas of dualism and monism envisioned
two different ways that domestic courts might combine international and
domestic law.
Monism and
Dualism
According to monism, domestic and
international law are complementary aspects of the same legal order, with
normative connections between them. Monist perspectives hold that international
law should naturally become part of the domestic legal system without the need
for further state adoption or amendment.[2]
After being incorporated, international law is placed in the hierarchy of
sources that apply to domestic law and is used by the judiciary and other
governing bodies in that jurisdiction as part of the governing normative
framework. The concept of monism explains the relationship between the
international and domestic legal domains by stating that the recognition
required for municipal law to have jurisdiction over a particular topic or
region comes from international law.[3]
Conversely, dualism is predicated on
the knowledge that domestic and international law function in separate and
compartmentalized domains and that foreign law is not inevitably integrated
into the home legal system. Since domestic and international law function in
different domains, regular domestic law-making processes are the only way to
convert international law into domestic law. Therefore, dualism does not
maintain that international law has no place in the domestic order but rather
that any such function must be explicitly approved by domestic legal
procedures.[4]
The need to go beyond the ideological
frameworks of monism and dualism in order to distinguish the relative authority
and interaction between domestic and international rules has been fueled by the
expanding scope of international law. The concepts of monism and dualism are
remnants of political discussions about the nature and purpose of law, as well
as any possible restraints on state power, that occurred in Europe in the late
19th and early 20th centuries.[5]
Attempts have been made to reinterpret these concepts in order to address
modern issues in recent literature. In modern discourses, monist ideals are
justified as fulfilling the needs of global government and advancing or
reflecting a cosmopolitan culture and the universalization of values.[6]
As doctrines, dualism and monism are
formalistic, formulaic constructions that fail to capture the reality of the
many ways that cross-border legal exchanges occur, particularly considering the
growing interconnectivity of local and international legal systems.[7]
It is not contended that the ideas of
dualism and monism are insignificant, despite some reservations about them. The
reason they are significant is that judges, decision-makers, and other state
authorities value them. India, for instance, follows the dualist paradigm when
dividing up authority in respect to international law. Because Parliament has
little authority over the domestication of international norms, the Executive
frequently takes on and internalizes obligations under international law with
little to no supervision from Parliament, or with very little oversight that
occurs after the fact. As a result, Indian practice contradicts the precise
division of powers between the Executive and the Legislature that dualist
theories envision. Judicial dicta that permit courts to adopt standards of
international law without first having the legislature domesticate them
exacerbate this.[8]
Article
51(c)
“(c)
foster respect for international law and treaty obligations in the dealings of
organized peoples with one another.” [9]
Part IV of the Constitution, which
lists the Directive Principles of State Policy (DPSP), includes this article.[10]
The DPSP are "fundamental in the governance of the country," even if
they are not meant to be "enforceable by any court."[11]
The State has a duty to "apply these principles in making laws."[12] As
stated by the Supreme Court, "the court must interpret the language
of the Constitution, if not intractable, which is after all a municipal law, in
the light of the United Nations Charter and the solemn declaration subscribed
to by India,"[13]
in accordance with Article 51 of the Constitution. Furthermore, the Court's
jurisprudence reads the DPSP and fundamental rights together, "like two
wheels of a chariot, one no less important than the other."[14]
Several international legal standards have been incorporated into fundamental
rights, such as the environmental right's application of the precautionary
principle. This has broadened the scope of international law and the courts'
authority.[15]
Further there is a mere obligation
for states to try and establish respect for international law, this obligation
can be constituted as an obligation of result rather than result.[16]
They also escape the test of justiciability. As a result of the complex nature
of the Article, the courts have limited themselves and not delved deep into the
provision but have applied it in a broad and expansive manner. In theory,
unless relevant domestic legislation is in place to give effect to
international legal norms, these laws are not directly enforceable in India.
However, by internalizing and adopting a number of international legal
standards into domestic law, the courts have actually promoted respect for
treaty responsibilities and international law. Although there are important
differences between sources of international law, it is worthwhile to
investigate how various sources of international law have been brought up and
handled by Indian courts. The courts' approach to international law appears to
favor a certain "give and take and mutuality of influence"[17]
between various sources of international law.
Role of the
Courts
International conventions and
treaties have been brought up, utilized, and "incorporated" by the
courts in a number of ways. Firstly, courts have interpreted domestic laws in
consonance or concord with an international treaty to which India is a party,
where the terms of the treaty are vague or imprecise and have been incorporated
into domestic law. They take this action based on the initial assumption that
Parliament did not intend to act in a way that would violate international law
or its commitments under treaties. In contrast, the courts have ruled that it
is not essential to search outside (i.e., international law) where the law as
determined in India on the matter is sufficiently clear.[18] We
may trace this back to the Salil Bail v. Union of India decision, in which the
court used a variety of declarations and conventions ratified by the
international community, as represented by the United Nations, in addition to
provisions of the Constitution to calculate the age of majority.[19]
Secondly, courts have ordered the
State to give effect to an international treaty even if it has not been
integrated into domestic law and to which India is a party. People's Union
for Civil Liberties v. Union of India[20]
is an example of an unincorporated treaty being implemented; in this case, the
Court interpreted Article 21 to include the right to privacy on the basis that
local law had to be interpreted in harmony with international law. The right to
privacy is protected by the 1948 Universal Declaration of Human Rights and the
1966 International Covenant on Civil and Political Rights, both of which India
is a signatory. The Court stated that "courts can certainly rely upon the
covenant's provisions as facets of those fundamental rights and hence,
enforceable as such," since they "elucidate and go to fulfil the
fundamental rights guaranteed by our Constitution."[21]
Furthermore, the Court has, at least
in one significant case, judicially "incorporated" or legislated an
international treaty to which India is a party in addition to giving the treaty
effect. The Supreme Court established "guidelines and norms" on
sexual harassment in Vishaka v. State of Rajasthan,[22]
ruling that employers must adhere to these standards until relevant legislation
is passed. This was done "in the absence of enacted domestic law."[23] The
Court held, under the accepted rule of judicial construction, that
consideration must be given to international conventions and standards for
interpreting domestic law when there is a vacancy in the domestic law and there
is no disagreement between them. Furthermore, other international conventions
that are consistent with the spirit and not in conflict with the fundamental
rights must be inserted in order to further the objectives of the
constitutional guarantee and to broaden the meaning and content of these
provisions—Articles 14, 15, 19, and 21 of the Constitution. The Supreme Court
used international law to make law in this case. The Court used the 1980
Convention on the Elimination of All Forms of Discrimination Against Women, to
which India is a signatory, albeit with significant restrictions, to support
its decision to enter the legislative process. The Court justified its capacity
to enact laws by stating that it was doing so "in exercise of the power
available under Article 32 of the Constitution for enforcement of the
fundamental rights". The court emphasized that this would be recognized as
the law announced by this Court in line with Article 141 of the Constitution.[24] It
is important to remember that the Court's authority under Article 141 of the
Constitution is to "declare law," which only applies to Indian courts
and tribunals. Contrary to what has been implied, the Court is not able to
"make law" that is obligatory for all Indian citizens.32 It is a
usurpation of the legislative function in and of itself to give effect to
unincorporated treaties,33 let alone to make laws that serve as stopgap
measures until Parliament intervenes. By adopting a broad interpretation of
international law in Vishaka, the court "made law," expanded its own
purview, and intruded on Parliament's purview.
In the same spirit, courts also
readily make favorable references to treaties to which India is not a party. G
Sundarrajan v. Union of India [25]is
a recent case in which the Supreme Court was requested to rule on whether or
not the establishment of the nuclear power station in Kudankulum was against
public policy. Even while the Court ruled that it was not because it benefited
the greater public interest, it emphasized that the relevant authorities still
had a duty to make sure that sufficient nuclear safety measures were in place
before the plant started operating. The Court brought up a number of
international accords in this context, one of which India had not ratified. The
Court utilizes this unfulfilled pact to set standards and offer context, even
if it did not want to give it effect. The National Legal Service Authority
v. Union of India (Transgenders case)[26]
is another recent example of this. In this case, the Court cited multiple
treaties under the heading "India to follow International
Conventions," including the 1980 Convention against Torture, to which
India is not a party. The Court listed many pertinent treaties, noting their
legal implications while omitting to say whether India is a party to any of
them.
The ruling in Ktaer Abbas Habib Al
Qutaifi v Union of India[27]
by the Gujarat High Court may go the furthest in regard to treaties to which
India is not a party. In this instance, the Court interpreted Article 21 to
include the non-refoulment norm, which it took from the Refugee Convention—to
which India is not a signatory. The Court found that "the principle of
"non-refoulment" is encompassed in Article 21 of the Constitution of
India and the protection is available, so long as the refugee's presence is not
prejudicial to the national security," citing Article 51(c) and Article
253.[28] Nevertheless,
it mentioned that the non-refoulment principle "forms part of general
international law" and that "there is substantial, if not conclusive,
authority that the principle is binding on all states, independently of
specific assent"[29]
in doing so. This assertion gives the Court cover in its endeavor to adopt the
idea into domestic law, even if it was stated rather than established as a
general international law principle.
Similar to treaties, Indian courts
seem to be prone to include both international customary and non-customary
rules into their own legal systems. The landmark case in this area is the case Vellore
Citizens Welfare Forum v. Union of India,[30]
the court determined that the concepts of precaution and "the polluter
pays" found in international environmental law apply to both domestic
environmental law and, to some extent, customary international law. The Court
reasoned that India's network of statutory environmental regulations, along
with Article 21 and other pertinent constitutional provisions, were adequate to
incorporate the precautionary and "polluter pays" concepts into
domestic environmental law.[31] It
is important to remember that the network of environmental legislation aims to
further the constitutional duty "to protect and improve" the
environment. The idea of precaution was not included at the time in any
environmental laws, and the Court did not specify one either. The Court further
stated that "international law jurists have not yet finalized the salient
features of sustainable development, but it has been accepted as a part of
customary international law as a concept that balances ecology and
development."[32]
The method the Court used in this
instance raises several questions. First, the Court effectively presented
itself as the exclusive judge of what constitutes (or does not constitute) a
circumstance necessitating the application of the precautionary principle,
despite providing few definitions and making many promises. Decisions must be
determined on an individual basis and by the Court alone, as there are no
definitions, standards, or boundaries.[33] Second,
courts adopting so-called customary international law so readily betrays an
underlying democratic quality.[34]
Contemporary customary international law is distinct from traditional customary
international law in several keyways: it can emerge swiftly; it draws more from
international declarations, such as resolutions of the UN General Assembly and
multilateral treaties, many of which are aspirational; and it aims to govern a
state's treatment of its own citizens rather than the relationships between
states.[35]
Ultimately, a great deal of what are referred to as common law norms—such as
the sustainable development principle—frequently lack the legal substance or
specificity necessary to qualify as "norm creating" standards. As
demonstrated by the Court in the Vellore case, when judges adopt such customary
law into domestic systems without giving it the required specificity and legal
substance, they are effectively expanding their own discretion at the expense
of democratic processes.[36]
Conclusion
Indian courts have closely followed
international law in the development of its jurisprudence on constitutional
rights and international law. This demonstrates both the Indian polity's
openness and responsiveness as well as its commitment to the constitutional
project. Nonetheless, the courts must apply international law with greater
force, discipline, and rigor. When determining pertinent international norms,
they require discipline. They must be rigorous in their analysis of these
norms; the more clarity, nuances, and legal substance they can incorporate into
the international legal norms they aim to incorporate into domestic law, the
more logical the jurisprudence will be, the higher its precedential value will
be, and the more significant a role it will play in the formation of
international legal norms. They require vigor because they should vigorously
defend customary international law in the small number of cases where it is
correctly referred to as such and valued considering state practice and opinio
juris.[37]
In a broader sense, to influence normative content in the development of
international law, courts must engage substantively with its rules. For its
part, Parliament must use the authority granted to it by the Constitution. It
is necessary to enact laws to limit the executive branch's unchecked authority
and to integrate international law into domestic law, as advised by the
National Commission and several constitutional theorists. Despite the broad authority
bestowed upon it by the Constitution, the executive branch must utilize its
powers with appropriate respect for Parliament and the general public.
[1] Rajamani, L. (2016). International
Law and the Constitutional Schema. https://doi.org/10.1093/law/9780198704898.003.0009.
[2] ibid.
[3] ibid.
[4] ibid.
[5] Chandra, A. (2017) ‘India and international law:
Formal dualism, functional monism’, Indian Journal of International Law,
57(1–2), pp. 25–45. doi:10.1007/s40901-017-0069-0.
[6] ibid.
[7] Bogdandy, at 400; F. Francioni,
International Law as a Common Language for National Courts, 36 Texas Intl L J
(2001) 587.
[8] Hegde, V. G. (2017). International Law in the Courts
of India. In K. Y. L. Tan (Ed.), Asian Yearbook of International Law, Volume
19 (2013) (pp. 63–87). Brill. http://www.jstor.org/stable/10.1163/j.ctv2gjwtcs.4.
[9] Constitution of India 1950, art
51(c).
[11] Rajamani, L. (2016). International
Law and the Constitutional Schema. https://doi.org/10.1093/law/9780198704898.003.0009.
[12] Constitution of India 1950, art
37.
[13] Kesavananda Bharati v State of
Kerala (1973) 4 SCC 225.
[14] Minerva Mills v Union of
India (1980) 3 SCC 625 [56].
[15] Rajamani, L. (2016). International
Law and the Constitutional Schema. https://doi.org/10.1093/law/9780198704898.003.0009.
[16] ibid.
[17] Effectuation of International Law in the Municipal
Legal Order: The Law and Practice of India (1995) 5 Asian Yearbook of
International Law 145, 157.
[18] Rajamani, L. (2016). International
Law and the Constitutional Schema. https://doi.org/10.1093/law/9780198704898.003.0009.
[19] Salil Bail vs. Union of India
(2013) 7 SCC 705.
[21] People's Union for Civil Liberties
v. Union of India (1997) 3 SCC 433.
[22] Vishaka v. State of Rajasthan
(1997) 6 SCC 241.
[23] ibid.
[24] Rajamani, L. (2016). International
Law and the Constitutional Schema. https://doi.org/10.1093/law/9780198704898.003.0009.
[25] G Sundarrajan v. Union of India (2013) 6 SCC 620.
[26] National Legal Service Authority v. Union of India (2014) 5 SCC 438.
[27] Ktaer Abbas Habib Al Qutaifi v Union of India, 1999 CriLJ 919.
[28] ibid.
[29] ibid.
[30] Vellore Citizens Welfare Forum v. Union of India 1996
(5) SCC 647, 1996 AIR SCW 3399
[31] ibid.
[32] ibid.
[33] Rajamani, L. (2016). International
Law and the Constitutional Schema. https://doi.org/10.1093/law/9780198704898.003.0009.
[34] Ibid.
[35]Curtis Bradley and Jack Goldsmith,
‘Customary International Law as Federal Common Law’ (1997) 110(4) Harvard Law
Review 815.
[36] Rajamani, L. (2016). International
Law and the Constitutional Schema. https://doi.org/10.1093/law/9780198704898.003.0009.
[37] ibid.
Article Information
ANALYZING THE ROLE OF INDIAN COURTS IN THE INTERSECTION BETWEEN PUBLIC INTERNATIONAL LAW AND INDIAN DOMESTIC LAW.
Authors: EESHAN SINHA
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/06/17
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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