This article is written by Srishti Chawla, a 5th-year student at Amity Law School, Noida
India has been a major contributor in the field of international law especially in the fields of human rights laws, environmental laws, arbitration law, and trade law. The domestic laws in India have corresponded with the international principles and norms in order to fulfill the international obligations which it has to all other ratifying nations. In India international law is implemented either according to the role played by each of the organ of the government or from the viewpoint of applicability in each field of law. India is a party to more than one hundred and sixty treaties and conventions dealing with various fields of law like air law, space law and maritime law. The Indian constitution and international law have links dating back to the pre-independence days when India was a separate member of the league of nations even during the times of the British rule. The Indian Constitution which was adopted on 26th November 1950 was greatly influenced by the values imbibed in The Universal Declaration of Human Rights which is an international document adopted by the United Nations General Assembly with the basic motive to protect and preserve the basic fundamental rights which all human beings are entitled to.
International law in the Indian context can be broadly divided into two parts which are –
1)The implementation of international law in the pre-constitutional period
2)The implementation of international law in the post-constitutional period
1)The Implementation of international law in the pre-constitutional period
The constitution of India and international law can be linked back to the pre-independence days. The time period before the constitution of India was adopted and British ruled India is known as the pre-constitutional period. During this period India followed all the British practices of international law. Even during this period India was a separate member of the league of nations and was also one of the founding members of the United Nations. The cognizance of the domestic laws of Britain with the provisions of international law can be dealt with under 2 categories-
i) British domestic laws and the customary rules of international law
Subject to the condition that customary rules of international law should not be inconsistent with that of the domestic laws in the British statutes, the British treats the customary rules of international law as a part of their own domestic laws.
ii) British domestic laws and rules laid down by the international law treaties
According to British laws, there are some exclusive treaties which require the approval of the British parliament for its enforcement. This consent can be given directly or such treaties can be adopted in the state laws by the parliament with the help of statutes.
2)The implementation of international law in the post-constitutional period
The constitution of India in its various parts laid down several provisions with respect to international law. Some of them are as follows –
The preamble lays down the outlines the objectives of the whole constitution. It contains some specific basic values and philosophies which India as a country guarantees to its people and aims to accomplish as a nation. It mentions inter alia that economic, social and political be achieved for all the citizens and aims to promote liberty of thought and expression and equality of status and opportunity to all in the country. These values are said to be the foundation of real democracy and are considered universal in nature. Sovereignty is an important concept in international law which is also a value mentioned in the preamble of the constitution of India. Sovereignty basically implies independence of a nation and the external sovereignty of India signifies that it can acquire any foreign territory and also give up any part of the Indian territory subject to some limitations mentioned in the constitution.
2)General principles relating to international law mentioned in the constitution
The most relevant Article related to international law in the constitution is Article 51. According to the provisions in this Article, the state has the responsibility to promote international peace and security in the nation and maintain just and honourable relations with other nations. The Article specifically mentions that the state shall respect all the provisions related to international law and shall make its best efforts to fulfill its treaty obligations and also encourage the settlement of international disputes with the help of arbitration.
This Article tells the state to respect international law but does not explicitly make it a part of the Indian laws. Article 51 of the constitution is a directive principle which is to be understood with Article 37 of the Constitution of India. Article 37 mentions that the provisions contained in part IV of the constitution shall not be enforceable in any courts nevertheless the principles laid down are crucial in the governance of the country and its the duty of the state to ensure that these principles are applied while making laws.
In case of Keshavanand Bharti v/s state of Kerala (1973), Honorable Chief Justice Sikri said 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.
Similarly, in the case of Krishna Sharma v/s state of West Bengal (1954), The Calcutta high court said that when there is a dispute between municipal law and domestic law, the courts shall try to make a harmonious construction between the two laws.
3) International law and the powers of the Executive
According to the constitution, the executive has the power to make laws by the virtue of Article 53,73 and 77. Article 53 says that the executive power is conferred to the president of India and the president shall exercise them directly in accordance with the constitution of India or through the officers subordinate to him. When exercising his power directly, the president should take the advice of the council of ministers. Although all executive functions are said to be executed in the name of the president they are subject to the provision that they must not infringe the powers of the legislature and the judiciary. Also, every contract entered into by India shall be made in the president’s name.
As mentioned in Article 73, the executive power of the union is extended to all the matters with respect to which the parliament has the power to make laws subject to the provisions of the constitution or to any other laws made by the parliament. As mentioned in Article 253, the parliament has the power to legislate and pass laws in order to fulfill international obligations
In spite of distribution of the powers of the constitution. We can say that the executive has a broad range of powers because till now in India there has been no legislation that has limited the powers of the executive relating to the matters of international law and relations.
Treaty-Making Power under the constitution of India
Since Article 73 of the Constitution of India puts no restriction on the powers of the executive with relation to international law, this allows the executive to enter into any type of treaty obligations. Thus the supreme court said that international law forms a part of the domestic law in India except when there is inconsistency with the provisions of the domestic law. Hence we can say that the approval of the parliament is only considered necessary for treaties that infringe the rights of the citizens, or which require a new change in the existing municipal law.
Therefore, the Supreme Court held that international law forms part of municipal law except when they are inconsistent with the provisions of municipal law. To sum up, the current position in India is that approval of the Parliament is required only for treaties that affect the rights of the citizens or which require a new, or change in existing municipal law.
4)Legislative powers of the government with relation to international law
Article 245(1) of the constitution gives the parliament the power to make laws for the whole or any part of the territory of India. Simultaneously Article 246 distributes legislative powers among the center (List I) and the state (List II) under schedule VII. List III refers to the concurrent list on the subjects of which both center and state can make laws.
Relating to international law Article 253 is the specific Article that gives the parliament the special power legislate and pass laws in order to implement international agreements.
According to Article 253, the parliament has the sole right to make laws for the whole or any part of the territory of India with the motive of executing an international treaty, agreement or convention with other countries or any decision made at any association or conference.
The power under Article 253 overrules even the said provisions in part XI, Chapter 1 of the constitution which distributes powers between the union and the states. Thus Article 253 empowers the parliament to pass laws on matters mentioned in list II of schedule VII in order to execute international treaties, agreements and conventions and the parliamentary power in the matters of international law can be said to be complete. Also, the residuary legislating power also lies with the parliament which empowers the parliament to legislate on matters which are not listed in Schedule VII. Moreover, Article 2 gives the parliament the power to admit foreign territories into the union by the way of the law. For example, the addition of the state of Sikkim by the 35th (1974) and 36th (1975) constitutional amendments.
The constitution does not explicitly allow the parliament to give up a territory of India and this can only be done through a constitutional amendment as interpreted by the supreme court.
5)The Indian judiciary and International law
Although the Indian judiciary does not have the power to make laws but it interprets the obligation of India in international law by adjudicating domestic cases concerning issues of international law.
In this respect, the Indian judiciary has played a very active role in the implementation of India’s international obligations under international treaties especially, in the areas of environmental law and human rights.
We can see India’s outlook towards international law from two viewpoints-
1)Indian law vis a vis treaties
It has been said by the courts that the treaties which India has ratified should be implemented in good faith but at the same time, the presence of domestic law is necessary for the executive to follow a treaty. In general terms, treaties are considered to be self-executing unless and until there is a requirement of an amendment to the constitution or to any existing law or if any new law is required to be passed. Hence for this matter, the courts can take the help of treaty principles which are not inconsistent with the laws of India.
The role of international treaties in the implementation of domestic laws cannot be undermined. International treaties have been used for the following purposes-
1)To fill a gap in the existing law
2)To aid interpretation of the law
3) To support and defend a stand taken
4)To implement international conventions when they are not inconsistent with domestic laws.
5)To honor international treaty ratifications and international law.
The question that has come up very frequently in front of the Indian courts with regard to the implementation of international law treaties is whether such treaties are binding automatically or they require any enabling legislation.
The supreme court has reflected a dualist approach of the Indian legal system. In the case of Jolly George Verghese vs Bank of Cochin (1980), Justice Krishna Iyer stated that unless the municipal law is altered to accommodate the treaty, what is binding on the court is the former and not the latter.
Further, the supreme court in the case of State of West Bengal vs Kesoram industries (2004) reemphasized that India obeys the doctrine of dualism and stated that any treaty that has been entered into by India cannot become the law of the land unless the parliament passes a law as under section 253 of the constitution of India,
In the landmark case of Vishaka vs the state of Rajasthan(1997), the court while drafting the guidelines on sexual harassment of women at the workplace referred to many international conventions and norms which were relevant for the purpose of guaranteeing gender equality, right to work with dignity and the adherence to Article 14, 15, 19(1)(g) and 21 of the constitution.
In the case of Neelabati Behera vs. State of Orissa(1993), the court relied upon Article 9(5) of the Covenant on Civil and Political Rights (1966) while granting compensation to the victim for the matter of custodial death.
In the case of Chairman Railway Board vs. Chandrima Das(2000), the court utilized the principles of the Universal declaration of human rights while widening the scope of Article 21 of the constitution by providing security to rape victims of foreign nationals.
Thus it can be observed from the above cases that the court has the liberty to apply international treaties to domestic law provisions if they are not inconsistent with the existing municipal laws.
2) Indian law vis-a-vis international Customary law
The Indian judiciary does not consider customary rules of international law as a part of domestic law automatically. Therefore, when there is a conflict between municipal law and customary international law, the former will prevail.
In the case of Vellore citizens welfare forum vs Union of India (1996), the Supreme Court upheld the validity of the principles of sustainable development and polluter pays principle. It stated that once these principles have been accepted as a part of customary international law, no problems shall arise in accepting them as a part of the domestic legislation unless they are not inconsistent with the existing domestic laws.
A similar view has been taken in the case of people union for civil rights vs union of India.
Thus it can be deduced from the above judgment that the courts while applying the rules of international customary law have to craft them in the Indian domestic law.
6)Fundamental Rights and Directive Principles of State Policy in Accordance with International law
The Fundamental Rights in Part III of the constitution and the Directive Principles of state policy in Part IV of the constitution can be compared with the Universal Declaration of Human Rights (UDHR) and many common points can be seen.
Also, many similarities can be found between the principles and values of the Indian constitution and international humanitarian law, for instance, Part III and Part IV of the constitution are greatly influenced by the U.N Charter and Universal Declaration of Human Rights (UDHR). Further it can be seen that the International Covenant on Civil and Political Rights (ICCPR) is reflected in Part III of the constitution whereas The United Nations Economic and Social Council (ECOSOC) is reflected in Part IV and the Preamble to the constitution, thus greatly benefiting the scope of human rights law in India.
7) Fundamental Duties
Similarly, Article 51 A of the constitution of India gives force to Article 29(1) of the UDHR which mentions the duties of the citizens towards the state which help to build the nation and understand the importance of individual responsibility.
The constitution is considered to be the supreme law of the land. Hence while analyzing India’s commitment to international law, the constitution is a document that provides us India’s standpoint and approach to the growing field of international law. As we have seen, the ties of India with the international law date back to the pre-independence days when India was one of the first founding members of the united nations. The constitution of India, adopted in the year 1950 was made keeping in mind India’s position and stance in the international community. As discussed, the preamble, organs of the government, fundamental rights and various other provisions in the constitution are made so as comply with international law. India has tried to incorporate and utilize international law in many of its judgments and decisions subject to the provision that they are consistent with the domestic laws of the land. Further, the applicability of many Articles has been strengthened by international law treaties and international principles of customary law thus building India’s legal framework and position in the international community.