Implementation Of International Law In India - Role Of Judiciary
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Category: International Law
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IMPLEMENTATION OF INTERNATIONAL LAW IN INDIA:
ROLE OF JUDICIARY
Lakshmi P Nath, CMR University School of Legal Studies, Bangalore
ABSTRACT
International laws have impacted the domestic legal order of different nations in a manifold way. International treaties may be referred to or applied by the judiciary in nations that adhere to the "monist school. " Monist school is of the view that the internal and international laws bring a form of unity. These rules are generally accepted by the state generally through a treaty. These determine whether the actions are legal or illegal. They equate international laws with that of domestic laws. These agreements are referred to as selfexecuting. On the other hand, when it comes to the domestic application of international law, nations like India adhere to the "dualist" school of law. Dualists emphasize the distinction between international and domestic law and demand that the latter be incorporated into the former. International law does not exist as law without this translation.
National law must be incorporated into international law in order for it to exist. A state violates international law if it accepts a treaty but fails to modify its domestic legislation to comply with it or fails to enact domestic legislation that expressly incorporates the treaty. International accords do not, therefore, automatically become a part of Indian law. Where necessary, they must be included in the legal system through legislation passed by the Parliament. Although it lacks the authority to enact laws, the Indian judiciary is free to apply the country's local laws to interpret India's duties under international law when making a ruling in a case involving such matters. In this regard, the Indian judicial system has taken the initiative to carry out India's commitments under international treaties, particularly in the areas of human rights and environmental law.
In light of pertinent constitutional provisions, this essay explores the judiciary's role in India's implementation of international law.
INTRODUCTION
Entering into international treaties and agreements is one of the attributes of State sovereignty. 1 Even if ratifying international treaties binds a State to fulfill its responsibilities to other countries, the incorporation of international law into local ordinances is not governed by international law. In actuality, based on their respective constitutional provisions in this regard, the States adopt various procedures for integrating international law into their domestic legal systems. As a result, different countries have distinct processes for implementing international law at the national level. Two schools of law—monist and dualist—have provided explanations for the differing State practices regarding the induction of international law into municipal law. In the case of Jolly George v.
Bank of Cochin it was said that India follows the dualist theory for the implementation of international law at domestic level. 2 The link between local legislation and international law is extremely complicated and unpleasant. The two systems are typically seen as two separate sets of legal norms and guiding concepts. It is important to remember that international treaties are governed by international law and are the outcome of talks between the States. They are among the most significant sources of global law. INTERNATIONAL LAW V. MUNICIPAL LAW One of the most distinctive ways that the States exercise their independence and sovereignty is through the capacity to make treaties. The general norm of international law has always been applied to the states' authority to enter into treaties or agreements.
The link between a nation's domestic laws and international law is complicated and unsettling. Most people understand the two systems as separate legal codes and tenets. It is important to remember that international law governs international treaties, which are the outcome of discussions between States. Among the most significant sources of international law are these. It is critical to recognize the connections and commonalities between municipal and international law in order to comprehend the relationship between the two bodies of legislation. To put it simply, international law is a body of regulations that are applied whenever there is interaction between two or more country governments. Municipal law, sometimes referred to
1 UN Charter, Chapter 1, Article 2(1)-(5)
2 Jolly George Vs. Bank of Cochin, AIR 1980 SC 470
as national law, is applied only inside a nation's borders, as opposed to international law. 1 The Vienna Convention on the Law of Treaties, Article 27, forbids governments from using their municipal laws as a defense against their need to carry out treaty obligations. Article 8 of the Universal Declaration of Human Rights and Fundamental Freedoms: Every person has the right to an efficient remedy from the tribunal that has the authority to consider cases involving violations of fundamental rights guaranteed by the constitution or other laws. 2 Nation states that adhere to international law typically debate municipal law.
A practical issue in a state's municipal courts is whether the National Court of a country should give effect to the rules and principles of international law within its jurisdiction, or which rule and principle should take precedence if both laws are in direct or indirect conflict. This issue goes beyond the theoretical analysis of the relationship between the two laws. Divergent state practice of incorporation Even while a State is required by international law to uphold its responsibilities, domestic legal systems in various nations have diverse approaches to implementing international law at the national level. As a result, a State may choose to use legislative, executive, or judicial actions to fulfill its international responsibilities.
In order for the provisions of treaties to be executed by State authorities, states also adhere to several practices while incorporating the treaties within their internal legal framework. It is important to note that in certain nations, international law is incorporated into local or national law automatically. In other words, once a State ratifies or joins an international agreement, it becomes a part of its domestic law. Treaties are typically seen as self-executing under such systems. In some nations, the ratifying State's national law does not instantly include international law. In these nations, international law is not self-executing, which means that it lacks legal effect absent the enactment of supplemental domestic national legislation.
Most States do not grant international law precedence over local municipal law, according to an examination of their constitutional documents, especially those of developing nations, who are frequently keen to emphasize their sovereignty. SCHOOLS OF LAW: MONIST V DUALIST Two schools of law have provided explanations for the various State practices regarding the integration of international law into municipal law. Monists and dualists are the two legal schools that focus on how international law and local law interact. International law and local law are seen as different by dualists. This legal school contends that only after incorporation into municipal law can international law be applied. An act of Parliament may result in this incorporation or put into effect by judicial decisions or executive action. Hence, a treaty that is not incorporated has no legal status under domestic law.
Additionally, if domestic law and international law contradict, domestic law will take precedence. Nevertheless, this does not imply that most States would disobey the rule of law. The domestic sphere is what matters in reality. On the other hand, monists regard international law and municipal law as parts of a single legal system. According to this theory, municipal law is subservient to international law. Theories on the relationship between International Law and Municipal Law Two basic theories—monism and dualism—can be used to explain the link between municipal law and international law. According to the previous approach, municipal law and international law are two different but complementary parts of a single system. Although the latter claims that both sets of laws are completely unique, separate, and autonomous legal systems.
The dualist view, also referred to as the pluralistic hypothesis, holds that state law is governed by the laws of a single state, whereas international law is governed by the legal systems of several governments. Monist Theory German philosophers Moser, Hegel, Bergbohm, Zorn, and Wenzel developed monist theory in the late eighteenth century, and Wright, Kelsen, and Duguit refined it in the nineteenth. It is generally accepted that municipal law and international law are simply different facets of the same legal system. A monist's argument is really straightforward: they contend that when combined, municipal and international law constitute a unified system. Authors of today's monistic literature try to claim that a significant percentage of their opinions derive from a purely scientific examination of the municipal structure of legal systems.
There is no need to translate international law into local law in a real monist polity. The pact is automatically integrated into municipal law as soon as the state lends its consent to it. When a state ratifies an international treaty or commitment, international principles—which includes customary international law—are instantly incorporated into the state's municipal law.
Regardless of whether a national law is lawful or not, it is void in a real monist state if it conflicts with international law. For instance, a state may ratify the Convention on the Rights of Persons with Disabilities, yet certain of its domestic laws may violate the rights of those with disabilities guaranteed by the convention. A citizen of that nation may then request that the treaty be applied by national courts, provided they are not being denied the rights granted by it. The following are some of the theories on Monist theory by legal scholars A. Delegation Theory: The delegation theory, which holds that each state constitution has a delegated authority dictating how international law will be applied to them, is supported by monists. This theory states that municipal law will be subject to international law without any special delegation, creating a single legal system.
The theory gives international law precedence over local law because it can be implemented right away and without modification. B. Kelsen: Grundnorm Theory According to Austrian jurist Kelsen, both laws constitute "manifestation of a single unit of law". Additionally, he thinks that international law is paramount since it derives from state practices and represents greater authority, and that states should act in a manner consistent with their customs. According to Kelsen, if international law is acknowledged as having legal standing, it becomes hard to dispute that two legal systems make up a single system. Dualist Theory In contrast to monists, dualists have emphasized the distinction between municipal and international law and have campaigned for the inclusion of international treaties in state municipal laws.
Dualists contend that international law would not exist as a legal framework without this State acceptance. Dualists hold this opinion because they consider municipal law and international law to be two distinct branches of law, and therefore think it is illogical to treat them as one. They maintain that municipal law and international law are two separate and autonomous legal systems. In a dualist state, the incorporation of international law into municipal law is crucial for its implementation. In addition to drafting, the state has an obligation to strike out any laws that conflict with recently enacted international law. A dualist State's act of non-incorporation violates international law if it ratifies a convention or treaty without passing a statute expressly incorporating the agreement.
In the event that a State has not integrated the principles of a treaty into its domestic legislation that it has previously ratified internationally, neither its citizens nor its courts will be able to make decisions based on those principles. IMPLEMENTATION OF INTERNATIONAL TREATIES IN INDIA In India, the executive branch is in charge of negotiating treaties with other countries. Treaties and agreements must be signed and ratified by the Indian government. Unless there is a provision in the treaty itself to that effect, the Government is not required to seek approval of the Parliament for such treaties. Executive powers to enter into international agreements The Central government or government of India has executive power to enter into and implement international treaties under Articles 246 and 253 read with Entry 14 of List I of the Seventh Schedule of the Indian Constitution.
3 The executive powers of the Central government or government of India are derived from the legislative power of the Union of India. In this regard, it is to be noted that the executive powers of the Union and State governments are co-extensive with their respective legislative powers. 4 According to Article 53 of the Indian Constitution, the President has explicit authority over the Union of India. Along with giving him executive authority, this clause also allows him to execute it in line with the Constitution directly or through the officers who report to him. It is important to remember that Article 73 of the Indian Constitution grants the government of India authority to act in all matters over which the parliament has legislative authority.
However, just because the Indian government has the authority to sign international treaties does not automatically make them enforceable after ratification. This is due to the fact that the Indian Constitution upholds the "dualistic" theory with regard to international law. International agreements do not immediately become a component of domestic law.
3 Samsher Singh v. State of Punjab, AIR 1974 SC 2192
4 Article 73 and 162 of Indian Constitution
When necessary, they must be integrated into the legal system through legislation passed by the Parliament. Legislative powers to implement international treaties The executive branch of government may be used to carry out a pact. However, under Article
253 of the Indian Constitution, the parliament has the exclusive authority to enact a statute or
piece of legislation when doing so is necessary for treaty implementation. Article 253 gives the Parliament the authority to enact any laws necessary to implement "any treaty, agreement, or convention with any other country or countries, or any decision made at any international conference, association, or other forum, for the whole or any part of the territory of India. "5 It is clear that the Parliament's acquisition of this power is consistent with the authority granted to it by Entries 13 and 14 of List I under the Seventh Schedule. The power is available to Parliament, according to Article 253, despite the division of authority between the Centre and States established by Article 246 read with the Seventh Schedule.
Implementation of international obligations Article 51(c) of the Indian Constitution is the fundamental clause that makes Indian municipal legislation enforceable under international law. The State must "strive to foster respect for international law and treaty obligations in the dealings of organized peoples with one another," according to Article 51(c) of the Constitution. Article 51 and international law in general are not subject to Indian municipal legislation. INDIAN JUDICIARY AND INTERNATIONAL LAW In India, though the polity is dual, the judiciary is integrated. Therefore, India has an integrated judicial system. Indian courts have the authority, when needed, to use international conventions as an outside resource for creating domestic law. In the Vishaka v. State of Rajasthan6 case, the Supreme Court used an international convention to help shape domestic law.
In this case the Court in order to continue with the matter, the Honourable Court referred to the international conventions. In the absence of any legislative framework, it made reference to the Beijing Statement of Principles on the Independence of the Judiciary7 in the LAWASIA region, which serves as a safeguard of citizens' rights. The articles of the Convention on the Elimination of
5 Article 253, Indian Constitution
6 AIR 1997 SC 3011
7 https://www.icj.org/wp-content/uploads/2014/10/Beijing-Statement.pdf
All Forms of Discrimination Against Women (CEDAW) were then cited by the Honourable Court. In this case 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 work places, the contents of International Conventions and norms are significant for the purpose of 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”8 GENERAL PRINCIPLES
1. Construing existing laws to implement treaty obligations
Under Indian domestic law, obligations resulting from foreign accords or treaties are not legally obligatory on their own. To put them into effect, the proper legislative or executive action must be done. Implementing a treaty does not necessitate new legislative or executive action if it is permitted by existing administrative regulations, statutory laws, or constitutional provisions, even though it is not self-executing under Indian law. In this situation, the Indian courts have the authority to interpret pre-existing statute or constitutional provisions in a way that makes them consistent with the terms of the treaty.
2. Fostering Respect for International Law
Article 51 of the Indian Constitution enshrines the Directive Principles of State Policy, which require the State to promote respect for international law and treaty responsibilities in the interactions between organized persons. A fundamental tenet of statutory interpretation in Indian domestic law is that a statutory provision must, whenever feasible, be interpreted in a way that is consistent with India's obligations under international law, be they treaties, conventions, or customary international law. A prima facie presumption exists that Parliament does not intend to act in violation of international law, including a specific treaty obligation. In the event that the legislation's
8 https://indiankanoon.org/doc/1031794/
terms are ambiguous and reasonably capable of multiple interpretations, the treaty itself becomes relevant. If one interpretation that can be reasonably assigned to the legislation is consistent with the obligations of the treaty, while another interpretation is not, the consistent interpretation is to be preferred. JUDICIAL ACTIVISM The judiciary's purview has been substantially expanded. The Higher Judiciary has developed a number of comprehensive tactics that have allowed it to evolve from a positivist organization for resolving disputes into a force for socioeconomic change and a defender of the environment and human rights. This tactic is associated with Public Interest Litigation's (PIL) development. Jurisprudence In the case of Kesavananda Bharati v.
State of Kerala9, Sikri, CJ, observed the following regarding Article 51: “It seems to me that, in view of Article 51 of the directive principles, this Court must interpret language of the Constitution, if not intractable, which is after all an intractable law, in the light of the United Nations Charter and the solemn declaration subscribed to by India”10 The Supreme Court in Visakha v. State of Rajasthan took recourse to the International Convention for the purpose of construction of domestic law.
“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 work places, the contents of International Conventions and norms are significant for the purpose of 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”11 In Jolly George Varghese and Others v.
The Bank of Cochin, the Court first attempted to address the growing connections between domestic law and human rights by balancing contractual provisions under municipal law with Article 11 of the International Covenant on Civil and Political Rights (ICCPR) in order to protect the rights of a civil debtor whose personal
9 (1973) 4 SCC 225; AIR 1973 SC 1461
10 https://judgments.ecourts.gov.in/KBJ/?p=home/intro
11 https://main.sci.gov.in/jonew/judis/13856.pdf
freedom was in jeopardy as a result of judicial proceedings conducted in accordance with Section 51 (Proviso) and Order 21, Rule 37, Civil Procedure Code. By citing Articles 862 and 963 of the Universal Declaration of Human Rights (UDHR), the Supreme Court expanded the application of Article 21 (right to life) of the Indian constitution in Additional District Magistrate, Jabalpur v. Shivakant Shukla. 12 In Vellore Citizens Welfare Forum v. Union of India and Others13, the court held the following, citing the nation's environmental laws' "polluter pays" and "precautionary principle" as supporting evidence: “Even otherwise, once these principles are accepted as part of the Customary International Law there would be no difficulty in accepting them as part of the domestic law.
It is almost an accepted proposition of law that the rules of Customary International Law which are not contrary to the municipal law shall be deemed to have been incorporated in the domestic law and shall be followed by the Courts of Law. ”14 A survey of Indian jurisprudence, thus, indicates the active role being played by the higher judiciary in the implementation of India’s international obligations.
CONCLUSION
The fundamental basis for carrying out the duties India has agreed to under international treaties under its own legal system is embodied in the Indian constitution. This means that the only authority to negotiate and carry out international treaties or accords is the Government of India. The executive authority of the Indian government is vested in the President of India, who can therefore sign and approve international treaties. This implies that ratification does not automatically make international law binding. This is due to the Indian Constitution's adherence to the "dualistic" approach of the assimilation of international law into local law. In India, international treaties do not always become a component of domestic legislation. An act of Parliament, which has the legislative authority to pass laws to carry out India's
12 AIR 1976 SC 1207
13 AIR 1996 SC 2715
14 https://main.sci.gov.in/jonew/judis/15202.pdf
commitments under the international treaties, is required to incorporate them into the legal system. Therefore, in the event that the Parliament does not pass special domestic law, India's international responsibilities cannot be brought before Indian courts for resolution. Nevertheless, a review of the case law demonstrates that the Indian court is actively carrying out India's international treaty commitments, particularly with regard to environmental law and human rights. As a result, the Indian judiciary plays a significant role in the application of international law in India by "judicial activism" to close gaps between Indian municipal law and international law.