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International Law and the Constitutional Schema

Abstract and Keywords

This chapter examines the Indian constitutional scheme with regard to international law. It begins with an overview of the doctrinal debates surrounding key constitutional provisions relating to international law, with particular emphasis on Article 51(c) of the Indian Constitution. It then considers how Indian courts have viewed norms of international law with respect to the constitutional guidance to ‘foster respect for international law and treaty obligations’, along with the courts’ development of domestic rights jurisprudence in dialogue with international law. It also explores how the constitutional schema has become an instrument for a usurpation of power by the executive and the judiciary, while limiting the role of Parliament and ‘people power’ in relation to international law.

Keywords: constitutional schema, courts, executive, India, Indian Constitution, international law, judiciary, jurisprudence, Parliament, people power

I. Introduction

*It is now becoming increasingly trite but nevertheless true to assert that international law in the age of globalisation is all-pervasive. There are a breathtaking number and variety of treaties—multilateral, plurilateral, and bilateral—spanning a wide area of regulation. This is accompanied by increasing institutional density in the international arena. There is also an increase in the phenomenon of labelling ‘not-so-customary norms’1 and even soft law as custom, and applying them. At the heart of all this hectic international activity is standard setting, with corresponding increases in the costs of deviation.2 Such standard setting has consequences, at times, fundamental, for individuals and entities within national borders.3 It would appear axiomatic then that international standards, and indeed such intense international engagement in areas of consequence to individuals and entities within national states, should be built on the outcomes of participatory processes, and be accountable to impacted actors (or their representatives) at the national level. However, this appears not to be the case in some countries. The Indian constitutional scheme, as currently interpreted and practised, with regard to international law is a case in point.

This chapter first considers the doctrinal debates attached to key constitutional provisions relating to international law. It then considers how Indian courts have internalised norms of international law in the light of the constitutional guidance to ‘foster respect for (p. 144) international law and treaty obligations’.4 Indian courts have been extraordinarily receptive to norms of international law and have developed domestic rights jurisprudence in dialogue with international law. Laudable as this is, there is more to the courts’ receptivity to international law. This chapter advances the hypothesis that Indian courts have internalised norms of international law by using and interpreting international law instrumentally to dispense ‘justice’, and expand their own power and discretion. In so doing the courts have often glided over distinctions between different sources of international law, ignored hierarchies, where they exist, between norms of international law, paid little heed to the legal status or gravitas of legal norms, and created, thereby, a body of jurisprudence in relation to international law that is as assertive and far-reaching as it is puzzling. It is a body of jurisprudence, notwithstanding its seemingly expansive and progressive embrace of international law, which is incapable—given its lack of nuance and precision—of assisting in the creation, crystallisation and further development of norms of international law. This body of jurisprudence, moreover, in wresting power from Parliament, is also vulnerable, however salutary the outcomes of particular cases might be, to the charge that it is democracy denying. This is particularly problematic in the light of constitutional provisions that seemingly invest the executive with untrammelled treaty-making power. The constitutional schema, therefore, in practice has lent itself to a usurpation of power by the executive and the judiciary, leaving Parliament and ‘people power’ with a limited role in relation to international law.

II. Fostering Respect for International Law

1. Article 51(c)

Article 51(c) of the Constitution directs the State to ‘endeavour to’, inter alia, ‘foster respect for international law and treaty obligations in the dealings of organised peoples with one another’.

There are several noteworthy features of Article 51(c). First, this Article falls in Part IV of the Constitution that identifies the Directive Principles of State Policy (DPSP). Although the DPSP are not intended to be ‘enforceable by any court’, they are nevertheless ‘fundamental in the governance of the country’, and it is ‘the duty of the State to apply these principles in making laws’.5 In the words of the Supreme Court, ‘[i]n view of Article 51 of the Constitution, this 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’.6 In addition, in the Court’s jurisprudence, fundamental rights are read in conjunction with the DPSP, ‘like two wheels of a chariot, one no less important than the other’.7 Numerous international legal norms have been read into fundamental (p. 145) rights,8 as for instance the precautionary principle into the environmental right,9 thereby expanding the remit and reach of international law, and of the courts themselves.

Secondly, the State is merely obliged to ‘endeavour’ to foster respect for international law.10 The obligation identified in Article 51 is one of effort rather than of result, and such obligations resist tests of justiciability. Thirdly, it is unclear from the terms of Article 51(c) whether the State is obliged to foster ‘respect’ for international law internally, in its own conduct or as between India and other nations, or all of these.11 In the absence of any limiting criteria, presumably it implies all of these. Fourthly, the juxtaposition of ‘international law’ with ‘treaty obligations’ is curious. This could be attributed, as some scholars have, to poor drafting, as ‘international law’ would include ‘treaty obligations’,12 or it could suggest that ‘international law’ refers to customary international law. This in turn would imply that international customary law is not incorporated prima facie into Indian municipal law.13 Finally, the term ‘organised peoples with one another’ is another curiosity. Some scholars have argued that this must be read to mean the dealings of States and peoples with one another,14 while others argue that the term ‘organised peoples’ includes apart from sovereign states ‘self-governing communities which have not secured recognition by the family of nations, yet may have the capacity to conclude certain treaties, mainly of a non-political character’.15

2. The Case Law

Notwithstanding the lively scholarly debate on the textual building blocks of Article 51(c), the courts have refrained from analysing the text in detail, preferring instead to approach the obligation to ‘foster respect for international law and treaty obligations’ in an expansive and instrumental manner.

In theory, international legal norms are not directly enforceable in India in the absence of appropriate domestic legislation giving effect to these norms.16 In practice, however, the courts have fostered respect for international law and treaty obligations by incorporating and internalising numerous international legal norms into domestic law. In their approach to international law, the courts appear to favour a certain ‘give and take and mutuality of (p. 146) influence’17 between different sources of international law; however, given that there are critical distinctions between sources of international law, it is worth exploring how different sources of international law have been raised and treated by the Indian courts.

Article 38 of the Statute of the International Court of Justice identifies the sources of international law as international conventions (or treaties), international custom, and general principles of law of civilised nations.18 Broadly, international conventions (or treaties) that arise through a process of conscious negotiation by States bind those States that are party to them, and international custom that evolves through consistent state practice and opinio juris (a sense of legal obligation) binds all States. The notion of general principles of law recognised by civilised nations is believed by many scholars to refer to legal principles developed in foro domestico19 and shared by legal systems. But others believe that such principles are distinguished not by where they are developed—in foro domestico or internationally—but by the fact that they are made objective through recognition by States.20 General principles require attitudinal consistency by States, whereas custom requires behavioural consistency by States.21 While both require convincing evidence of general acceptance, general principles are built not on State practice but on legal expressions of moral and humanitarian considerations. These three formal sources of international law are characterised as ‘hard law’ in that they are law properly so called. In addition, there exists a vast array of norms—for instance declarations, resolutions, or decisions taken by conferences—that are characterised as ‘soft law’. The term ‘soft law’ is used to refer to ‘international prescriptions that are deemed to lack requisite characteristics of international normativity’, but which, nevertheless, ‘are capable of producing certain legal effects’.22 Soft law can have persuasive value but it is by definition neither ‘law’ properly so called, nor binding on States. As we shall see, although the Indian courts appear to have a relatively consistent approach to treaties, they tend to blur the boundaries between custom, general principles of law, and soft law, thereby obfuscating the lines between hard and soft law, law and not law.

a. On Treaties: Judicial Incorporation, Interpretation, and Gap Filling

The courts have raised, used, and ‘incorporated’ international conventions or treaties in several ways. First, where an international treaty to which India is a party has been incorporated in domestic law, and the terms of it are unclear or ambiguous, courts have interpreted the domestic legislation in consonance or harmony with the international treaty. They do so on the basis of a prima facie presumption that Parliament did not intend to act in breach of (p. 147) international law and its treaty obligations. Conversely, where the law on the issue as settled in India is clear enough, the courts have held that it is unnecessary to look elsewhere (viz. international law).23

A recent case that illustrates this general point is Salil Bali v Union of India.24 The Court was asked to consider the constitutionality of the Juvenile Justice Act 2000, in relation to the age of a juvenile, in the light of the December 2012 Delhi rape. In upholding the constitutionality of the Act and the impugned provision, the Court relied, inter alia, on international law. It noted that the Act was:

[i]n tune with the provisions of the Constitution and the various Declarations and Conventions adopted by the world community represented by the United Nations. The basis of fixing of the age till when a person could be treated as a child at eighteen years in the Juvenile Justice (Care and Protection of Children) Act, 2000, was Article 1 of the Convention of the Rights of the Child … 25

Secondly, where an international treaty to which India is a party has not been incorporated into domestic law, courts have directed the State to nevertheless give effect to it. An example of an unincorporated treaty being given effect is People’s Union for Civil Liberties v Union of India26 (the telephone tapping case), where the Court expanded Article 21 to include the right to privacy on the grounds that municipal law must be read in conjunction with international law. The International Covenant on Civil and Political Rights 1966 (Article 17) and the Universal Declaration of Human Rights 1948 (Article 12), to which India is a party, protect the right to privacy. The Court noted that ‘the provisions of the covenant, which elucidate and go to effectuate the fundamental rights guaranteed by our Constitution, can certainly be relied upon by courts as facets of those fundamental rights and hence, enforceable as such’.27

Thirdly, where an international treaty to which India is a party has not been incorporated into domestic law, in addition to giving effect to the treaty, the Court has, at least in one notable instance, judicially ‘incorporated’ or legislated it. In Vishaka v State of Rajasthan,28 the Supreme Court ‘in the absence of enacted domestic law’ laid down ‘guidelines and norms’ on sexual harassment to be observed at all workplaces until a legislation is enacted for the purpose. The Court noted, ‘it is now an accepted rule of judicial construction that regard must be had to international conventions and norms for construing domestic law when there is no inconsistency between them and there is a void in the domestic law’.29 Further, ‘[a]ny international convention not inconsistent with the fundamental rights and in harmony with its spirit must be read into these provisions [Articles 14, 15, 19, and 21 of the Constitution] to enlarge the meaning and content thereof and to promote the object of constitutional guarantee’.30 (p. 148)

The Supreme Court herein ‘made law’, and, it did so with reference to international law. The Court referred to the Convention on Elimination of All Forms of Discrimination Against Women 1980, to which India is a party, subject to some reservations, but is as yet an unincorporated treaty, to derive legitimacy for its excursion into law-making. In order to derive authority for its law-making, the Court claimed to be acting ‘in exercise of the power available under Article 32 of the Constitution for enforcement of the fundamental rights’.31 And, it emphasised that this would be treated as the law declared by this Court under Article 141 of the Constitution. It is worth noting that the Court’s power under Article 141 of the Constitution is to ‘declare law’, a power which only binds courts and tribunals throughout India. The Court does not have the power, as it has here been assumed, to ‘make law’ binding upon all citizens of India.32 Giving effect to unincorporated treaties is in itself a usurpation of the legislative function,33 let alone making law to act as a place holder until Parliament steps in. In taking an expansive view of international law in Vishaka, the judiciary ‘made law,’ extended its own reach, and encroached on the domain of Parliament.

Although the extent to which the Supreme Court went in Vishaka may be unusual, scholars have documented a trend among the world’s common law judges towards the phenomenon of ‘creeping monism’—the trend of judges to utilise unincorporated (human rights) treaties in their work.34 Judges have welcomed this trend because ‘it respects the universality of fundamental human rights and freedoms and the vital role of an independent judiciary in reconciling the competing claims of individuals and groups of persons with the general interests of the community’.35 Such a trend, nevertheless, raises questions about where and how national courts will strike the balance between their roles as international actors (sympathetic to universal values) on the one hand and as domestic constitutional actors (subject to constitutional constraints) on the other.

Finally, and in a similar vein, courts do not hesitate to refer favourably even to treaties to which India is not a party. A recent case in point is G Sundarrajan v Union of India,36 where the Supreme Court was asked to consider whether setting up the Kudankulum nuclear power plant was contrary to public policy. In holding that it was not, as it served the larger public interest, the Court nevertheless stressed the obligation that the relevant authorities were under to ensure that adequate nuclear safety measures were put in place before the plant commences operation. In this context, the Court drew attention to several international treaties, including one that India had not ratified.37 Quoting extensively from this (p. 149) instrument, the Court noted, ‘India is not a signatory to the same but the said Convention is worth referring to in order to understand and appreciate the world-wide concern for public safety.’38 Although the Court did not seek to give effect to this treaty, it uses this ungratified treaty to provide context and establish benchmarks. Another recent case in point is the National Legal Service Authority v Union of India (Transgenders case), where the Court referred to numerous treaties under the heading ‘India to follow International Conventions’, including the Convention against Torture 1980, to which India is not a party.39 The Court recited a string of relevant treaties without indicating whether or not India is a party to these treaties, and distinguishing the legal effects thereon.

In relation to treaties to which India is not a party, the Gujarat High Court decision in Ktaer Abbas Habib Al Qutaifi v Union of India40 goes perhaps the furthest. The Court in this case read the principle of non-refoulment, drawn from the Refugee Convention to which India is not a party, into Article 21. Citing Article 51(c) and Article 253, the Court held ‘[t]he principle of “non-refoulment” is encompassed in Article 21 of the Constitution of India and the protection is available, so long as the presence of the refugee is not prejudicial to the national security’.41 In doing so, however, it noted that the principle of non-refoulment ‘forms part of general international law’,42 and that ‘[t]here is substantial, if not conclusive, authority that the principle is binding on all states, independently of specific assent’.43 Although the Court asserted rather than established this principle as one of general international law, this claim does provide cover to the Court in its attempt to incorporate it into domestic law.

b. On Customary and ‘Not-So-Customary’ Norms

As with treaties, the Indian courts appear inclined to incorporate international customary and not-so-customary norms into domestic law. The classic case in this regard is the Vellore Citizens’ Welfare Forum case, where the Court held that the international environmental law principles of precaution and ‘the polluter pays’ are part of domestic environmental law, as well—arguably—as customary international law.44 In the Court’s reasoning Article 21, and other relevant constitutional provisions,45 as well as India’s network of statutory environmental laws, were sufficient to render the precautionary and ‘the polluter pays’ principles part of domestic environmental law.46 It is worth noting that these constitutional provisions contain a mandate ‘to protect and improve’ the environment, and the network of environmental laws seeks to further this mandate. At the time there was no reference in any environmental legislation to the concept of precaution, and the Court did not identify one either. Further, the Court declared that ‘sustainable development as a balancing concept between ecology and development has been accepted as a part of the customary international law although its salient features are yet to be finalized by international law jurists’.47 It reached this conclusion by reference to a series of soft law instruments, including (p. 150) the Rio Declaration, Agenda 21, and the Bruntland Report.48 It listed several principles as ‘salient principles’ of ‘Sustainable Development’49 and identified the precautionary and ‘polluter pays’ principles as ‘essential features of sustainable development’, noting that ‘[e]ven 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’.50 The guarded phrasing of this last statement (‘even otherwise’ and ‘once’) appears to leave the question of whether precaution and ‘polluter pays’ are custom open. However, subsequent judgments have understood the Vellore case to suggest that these principles are custom.51 Indeed, even the Canadian courts have cited the Indian courts as recognising precaution as custom.52 The Vellore Court’s reasoning is riddled with logical leaps,53 but suffice it to say here that both the precautionary and ‘polluter pays’ principles are contested in international law.

Although there are numerous references to the precautionary principle in international law,54 there are divergent views on whether the precautionary principle is properly so called, how it might best be defined, what its precise content is, what obligations it creates and on whom, and whether, in its strong version, it lends itself to actualisation.55 As such, to characterise this principle as custom (if indeed this is what the Vellore Court did), without the benefit either of serious forensic analysis of state practice and opinio juris or at least of compelling argument, is at best intellectual sloppiness. The Court did not address any of these central queries. Yet it directed the government ‘to implement the precautionary principle’.

There are several concerns with the approach the Court followed in this case. First, having defined little and promised much, in essence the Court put itself forward as the sole arbiter of what is (or is not) a situation warranting an application of the precautionary principle. Since there are no definitions, benchmarks, or boundaries, determinations can only be made on a case-by-case basis, and can only be made by the Court.

Secondly, there is something inherently ‘democracy denying’ about courts adopting so-called customary international law with such cheerful abandon. Customary international law of more recent vintage differs from traditional customary international law in several fundamental ways: it can arise quickly; it is based less on actual state practice and more on international pronouncements, such as UN General Assembly resolutions and multilateral treaties—many of which are aspirational; and, it seeks to regulate not the relations of States among themselves, but a State’s treatment of its own citizens.56 In sum, as some scholars have (p. 151) characterised it, new customary international law is less consensual and less objective than traditional customary international law, and more likely to conflict with domestic law.57

Finally, many so-called norms of customary law do not often have sufficient legal content or precision in and of themselves to be ‘norm creating’,58 as for instance the principle of sustainable development. When courts embrace such customary law into domestic systems, without adding the necessary precision and legal content into it, as the Court did in the Vellore case, they essentially expand their own discretion at the expense of democratic processes.

c. General Principles of Law

The case law on ‘general principles of law recognized by civilized nations’ is sparse, but one case is distinctive for its treatment, albeit telegraphic, of general principles of law as well as for its inclusion of the inchoate and contested notion of jus cogens into the Court’s jurisprudence. In the State of Punjab v Dalbir Singh,59 the Supreme Court considered the constitutional validity of section 27 (3) of the Arms Act 1959, that imposes a mandatory death sentence for causing death through the use of prohibited arms/ammunition. In holding this section unconstitutional, the courts relied inter alia on the dicta on sentencing discretion in previous death penalty cases which they argued represented jus cogens. In their words:

[T]he ratio in both Bachan Singh and Mithu has been universally acknowledged in several jurisdictions across the world and has been accepted as correct articulation of Article 21 guarantee. Therefore, the ratio in Mithu and Bachan Singh represents the concept of jus cogens meaning thereby the peremptory non-derogable norm in international law for protection of life and liberty.60

First, it is unclear what exactly is purported to be a peremptory norm or jus cogens. The ratio in Bachan Singh61 and Mithu Singh62 are neither identical nor capable of being distilled into a single norm of general application, let alone a peremptory norm. Secondly, the Court asserts the existence of a general principle (developed in foro domestico and shared across legal systems), and conflates it with the notion of jus cogens. Admittedly, jus cogens can emerge from general principles of law,63 but peremptory norms represent, by definition, a higher order of norm, a norm that trumps others, and must therefore be convincingly argued and established. The Vienna Convention on Law of Treaties 1969 defines jus cogens as a norm ‘accepted and recognized by the international community of states as a whole as a norm from which no derogation is permitted, and which can be modified only by a subsequent norm of general international law having the same character’.64 (p. 152) There is a lack of clarity in the scholarly literature on the sources of peremptory norms,65 the content of such norms,66 and the legal consequences thereof.67 Scholars have also noted that it is a concept that lacks consistency in state practice.68 Although jus cogens are not premised on consistency in State practice, it requires a generality of acceptance and recognition at least as high as that necessary for custom.69 Notwithstanding its references to a few foreign judgments, the Court does not seek to demonstrate such generality of acceptance. The Court asserts rather than argues and establishes the peremptory nature of the norm, whatever it may be. Yet these sentences have been referred to approvingly in a subsequent judgment,70 and may well acquire a life of their own in Indian jurisprudence.

d. Soft Law

The courts, it appears, approach soft law—normative statements and agreements in non- legally binding or political instruments—in the same expansive and catholic fashion that they do hard law. Indeed, they frequently refer to soft law norms in the same breath as hard law. A recent case in point is National Legal Services Authority v Union of India,71 which quoted extensively from the Yogyakarta principles, and relied on these, among other sources, to recognise ‘transgenders’ as a third gender, and to extend to them the constitutional protections enshrined in Part III. The Court, noting the discrimination faced by the transgendered community, highlighted ‘the necessity to follow the International Conventions to which India is a party and to give due respect to other non-binding International Conventions and principles’.72 In their view, this requires India to recognise and follow such non-binding norms.73 It is worth noting that the Yogyakarta principles, fashioned not by States but by a group of international human rights experts, can best be characterised as ‘soft law’ possessing persuasive value.74 The Court acknowledges that the Yogyakarta principles are non-binding norms, but declares, nevertheless, that they must be ‘recognized and followed’.75

To be clear, this discussion is not intended to suggest a disdain for soft law. On the contrary, soft law expresses ‘emerging notions of an international public order’ and is ‘thus a vehicle for extending the realm of legitimate international concern’ beyond national jurisdiction.76 Soft law provides a platform for consensus building, catalyses the development (p. 153) of hard law, and guides the structuring of subsequent regimes.77 Nevertheless, courts—in reflexively and unreflectively adopting soft law—missed a valuable opportunity to assist in the crystallisation of norms contained in these instruments.

3. Fostering Respect for International Law in the Service of ‘Justice’

This survey of illustrative case law on ‘fostering respect for international law and treaty obligations’ across varied sources of international law offers many insights. The courts appear driven by their perceived constitutional mandate to dispense justice. In furthering this mandate they use international law, among other tools, in an instrumental fashion. In Nilabati Behera v State of Orissa, the Court noted that ‘The wide powers given to this Court by Article 32, which itself is a fundamental right, imposes a constitutional obligation on this Court to forge such new tools, which may be necessary for doing complete justice and enforcing the fundamental rights guaranteed in the Constitution … ’78 Similarly, in MV Elizabeth v Harwan Investment and Trading Pvt Ltd the Court noted that ‘Legislation has always marched behind time, but it is the duty of the Court to expound and fashion the law for the present and the future to meet the ends of justice’.79

It is evident from the case law discussed that courts use all available tools, including international law, to further their constitutional mandate to dispense justice. It is also clear that courts have developed constitutional values and rights jurisprudence in dialogue with international law. The most progressive judgments over time have relied on international (and foreign) legal norms. Recent examples include the Supreme Court’s judgment in the Transgenders case,80 which extended constitutional rights protection to the transgenders community, and the Delhi High Court’s judgments in Mohd Ahmed v Union of India,81 which operationalised the right to health, and the Naz Foundation case,82 which decriminalised homosexuality. Indian courts have expanded constitutional protections through a blend of receptivity to international law and engagement in transnational judicial dialogue. They have thus established themselves as legitimate and active participants in the global project of arriving at and respecting universal rights and values.

It is worth noting, however, that using international law in this instrumental fashion has significant drawbacks. The Court’s use of international law has expanded its (already considerable) power and discretion. This has occurred in several ways. First, the courts have given effect to unincorporated treaties, gradually usurping parliamentary functions. Secondly, the courts have incorporated custom and not-so-customary norms without examining in any depth (or at all) state practice and opinio juris, and soft law norms without an analysis of their legal status and the particular conditions that warrant their application. This has, given the presence of infinite international legal norms of differing legal gravitas, (p. 154) created and nurtured uncertainty in the corpus of law that can be expected to be drawn on to decide cases, especially in the environmental and human rights field. Thirdly, the courts have engaged in a largely superficial manner with the content and mechanics of international law. They have often raised and asserted rather than argued and established. Fourthly, the lack of rigour, precision, and nuance in the Court’s engagement with international legal norms renders it impotent to assist in the dialectic process of international norm creation and crystallisation.83 While many of the cases discussed represent ‘State practice’ and count in quantitative assessments of the use of or reference to a particular norm, the conceptual vacuity of these judgments in relation to formal international law renders them unreliable in any qualitative content-based assessments of the evolution of norms in international law. This represents a significant missed opportunity for India in shaping the evolution of international law.

Broadly, it could be argued that international law—since it contains seemingly authoritative yet less scrutinised ‘hooks’ for judges to hang their judgments on, dispense justice with, and reach particular outcomes—offers judges a fertile route to expand their own power. This is problematic at many levels, not least because it creates room for subjectivity and militates against constitutional morality.84 The recent Supreme Court judgment in Suresh Kumar Koushal v Naz Foundation,85 that reversed the Delhi High Court’s judgment, and ‘recriminalised’ homosexuality on patently superficial grounds, testifies both to the extent of subjectivity in Indian judgments, and the transient and contingent nature of progressive politics in this case-by-case method of judicial governance.

Thus, while the courts have fostered respect for and internalised international legal norms, they have also fostered respect for themselves in the process, yet not enough to take their role as norm creators in the international legal process seriously. In a display of institutional chauvinism, the courts have expanded their own power, but in institutional terms, perhaps at considerable cost.

The solitary check the Indian courts have long accepted in their embrace of international law is the existence of contrary municipal law. In Gramophone Company of India Ltd v Birendra Bahadur Pandey, the Supreme Court opined that ‘Comity of Nations or no, Municipal Law must prevail in case of conflict. National Courts cannot say yes if Parliament has said no to a principle of international law. National Courts will endorse international law but not if it conflicts with national law.’86 Similarly, in Additional District Magistrate, Jabalpur v Shivakant Shukla, the Supreme Court noted that in case of a ‘conflict between the municipal law on the one side and the international law or the provision of any treaty obligations on the other, the courts would give effect to municipal law’.87 Even the Vellore case contained the caveat ‘which are not contrary to municipal law’ in the role it envisaged in domestic law for rules of customary international law.88 This check has been reaffirmed as recently as in the Transgenders case.89 This is significant in relation to customary (p. 155) international law, as many jurisdictions incorporate it directly as part of the law of the land, even in some cases according it a higher rank than contrary municipal law.90

III. Treaty Making and Implementation

I will now turn to the powers of the executive and Parliament in relation to treaty making and implementation.

1. The Executive’s Treaty Making and Implementing Power

In line with Commonwealth practice, the Constitution provides the executive with what some scholars have characterised as ‘virtually unlimited powers’ to enter into treaties.91 Article 73 states that the executive power ‘shall extend to the matters to which the Parliament has powers to make laws’. The Parliament by virtue of Article 246 read with the relevant entries in the Union List92 has the power inter alia to legislate with respect to entering into and implementing treaties and agreements. In addition, Article 253 recognises the power of Parliament to make laws for the whole or any part of India for implementing any international agreement. In PB Samant v Union of India,93 the Bombay High Court held that the executive power under Article 73 is to be read in conjunction with the power conferred under Article 253. In the Court’s words:

There is no manner of doubt that in case the Government enters into treaty or agreement, then in respect of implementation thereof, it is open for the Parliament to pass a law which deals with the matters which are in the State list. In case the Parliament is entitled to pass laws in respect of the matter, then it is difficult to appreciate how it can be held that the Central Government is not entitled to enter into treaty or agreement which affects the matters included in the State list.94

The treaty-making power of the executive extends therefore even to matters within the competence of the State legislature.95 Scholars have argued that this militates against the Centre–State balance necessary for effective implementation of international treaties, and highlights the need for a cooperative mechanism that would allow the Centre and the State to be partners in concluding international treaties.96

The position is neatly stated in Maganbhai Ishwarbhai Patel v Union of India thus: ‘[t]he executive is qua the State competent to represent the State in all matters international and may by agreement, convention or treaties incur obligations which in international law are (p. 156) binding upon the State’.97 Since the power of the executive, by virtue of Article 73 read with Article 246, the relevant entries in the Union list, and Article 253 is coextensive with that of Parliament, and Parliament has yet to legislate in this area, the executive has the unfettered power, for now, to enter into treaties and agreements, and to determine the manner in which they should be implemented.98 The government of India, in an oft-quoted passage, proclaimed, ‘Parliament has not made any laws so far on the subject [of treaties] and until it does so, the President’s power to enter into treaties remains unfettered by any international constitutional restrictions.’99

The executive has sweeping powers in relation to treaty making—due both to constitutional prescription and to legislative apathy. In Ram Jawaya Kapur v Union of India,100 the Court held that ‘[o]rdinarily the executive power connotes the residue of governmental functions that remain after legislative and judicial functions are taken away’.101 The lesser the terrain occupied by legislation, therefore, the greater the executive power. Such sweeping executive powers in relation to treaty making have proven controversial, in particular in the context of India’s engagement with the GATT/WTO regime.102 In theory, Parliament could enact a law providing guidance on the kind of treaties the executive can enter into. It could also direct the executive to enter into a particular treaty or to refrain from doing so.103 Parliament, however, is yet to legislate in this area.

There are, nevertheless, some constraints on the executive’s treaty-making power. The first constraint is imposed by international law. Article 46 of the Vienna Convention on Treaties 1969 prevents States from claiming that their consent to be bound by a treaty is invalid on the grounds that their consent violated a provision of their internal law regarding competence to conclude treaties, that is, ‘unless that violation was manifest and concerned a rule of its internal law of fundamental importance’. Manifest violations of internal laws of fundamental importance (for instance, constitutions) therefore can invalidate treaties.104

The second constraint is imposed, in theory, by the fact that India follows the dualist tradition. Treaties do not have the force of law unless enacted into law by Parliament. The Supreme Court in Jolly Verghese v Bank of Cochin held that ‘international conventional law must go through a process of transformation into the municipal law before the international treaty can become internal law’, and that from ‘a national point of view the national rules alone count’.105 As noted before, however, the courts appear to be moving away from this strict transformation doctrine to one that embraces unincorporated treaties.106 In (p. 157) Gramophone Company of India Ltd, the Court held that ‘national courts will endorse international law but not if it conflicts with national law’.107 In any case, as one scholar notes, ‘the Executive regards the existence of Parliamentary power as more of a performance limitation than a capacity limitation on its treaty making power’.108

Further constraints on the executive’s treaty-making powers have been recognised in case law.109 The executive is obliged to comply with the provisions of the Constitution and the principles underlying it, the law of the land, and the fundamental rights guaranteed to citizens.110 An interesting case in point is DK Basu v State of West Bengal,111 where the Supreme Court expressly nullified a declaration appended by the executive to an international agreement. While ratifying the International govenant on Civil and Political Rights 1966, the Government of India had appended a declaration to Article 9(5) that provides an enforceable right of compensation for unlawful arrest and detention. The Indian declaration noted that ‘there is no enforceable right to compensation for persons claiming to be victims of unlawful arrest or detention against the State’.112 The Supreme Court opined that the ‘reservation … has now lost its relevance in view of the law laid down by this Court in a number of cases awarding compensation for the infringement of the fundamental right to life of a citizen’.113 In a line of cases beginning with Nilabati Behera v Union of India,114 the Supreme Court had implicitly ignored the declaration and awarded compensation, but in DK Basu, the Court went further.

In sum, executive power in this realm is considerable, and political space for a consultative process with the people’s representatives is limited, a fact recognised by the National Commission to Review the Working of the Constitution, which recommended that Parliament enact a law regulating ‘treaty making’ so as to democratise the process as well as to create accountability, and that a Parliamentary Committee be created to determine which treaties must be subject to fuller debate in Parliament, and which treaties could be entered into by the government acting on its own. Many constitutional theorists have also pressed for review and change. Rajeev Dhavan, for example, characterises executive power in this realm as a ‘formidable power which needs to be democratized’.115 And, the ever-quotable Justice Krishna Iyer notes that ‘[o]ur constitutional mechanism vis-à-vis treaty power needs creative scrutiny, innovative hermeneutics and progressive perestroika’.116

2. Parliament’s Treaty Implementing Power

The near-unfettered power enjoyed by the executive in relation to treaty making is checked to some extent by the role envisaged for Parliament in treaty implementation. Article 253 provides that ‘[n]otwithstanding anything in the foregoing provisions of this Chapter, (p. 158) 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’.

Although Parliament has the power to make law to implement treaties, it is neither required to do so in every instance nor does it. Unless treaties operate to restrict the rights of citizens or modify its laws, treaties can be given effect to by the executive in the absence of implementing legislation. The Court in Maganbhai held:

There is a distinction between the formation and the performance of the obligations constituted by a treaty. Under the Constitution the obligations arising under the agreement or treaties are not by their own force binding upon Indian nationals or others. The power to legislate in respect of treaties lies with the Parliament, and making of law under that authority is necessary when the treaty or agreement operates to restrict the rights of citizens or others or modifies the laws of the State. If the rights of the citizens and others that are justiciable are not affected, no legislative measure is needed to give effect to the agreement or treaty.117

In practice, although India is a party to many treaties, few of these have been incorporated into domestic law.118

The last clause of Article 253 merits further scrutiny. Parliament is empowered to legislate not just to implement treaties but also ‘any decision made at any international conference, association or other body’. As such decisions are likely to be either soft law or non-law, the Constitution envisages a role not just for hard law sources of international law, but also the possibility that India may wish to implement soft law prescriptions. An interesting example of this is afforded in the ongoing multilateral climate change negotiations. States are negotiating towards a ‘Protocol, another legal instrument or agreed outcome with legal force’.119 The term ‘agreed outcome with legal force’ was introduced by India. It permits a range of legal form options for the outcome of these negotiations. An ‘agreed outcome with legal force’, as India had sought, could encompass a non-binding international outcome that has domestic legal force. Article 253 would support such an outcome by permitting implementing legislation on non-binding international norms.

IV. Conclusion

This study of relevant case law and doctrinal debates in relation to international law and the Indian Constitution reveals that the Indian constitutional schema has permitted a situation in which both the executive and the judiciary enjoy and exercise near-unfettered power in relation to international law and treaty obligations (making, implementation, interpretation). While both the executive and the judiciary have demonstrated a high degree of institutional chauvinism, Parliament has crept quietly in its shadows. This imbalance is (p. 159) inherently democracy denying, blurs accountability, and constricts the space available for people power.

The Indian courts have developed domestic rights and constitutional jurisprudence in lockstep with international law. This is a testament to the openness and receptivity of the Indian polity as well as its constitutional project. The courts, however, need to approach international law with more discipline, rigour, and vigour. They need discipline in identifying relevant international norms. They need to exercise rigour in their appreciation of these norms; the more precision, nuance, and legal content they can import into the norms of international law that they seek to adopt into domestic law, the more coherent the jurisprudence, the greater its precedential value, and the more valuable a role such jurisprudence will play in the development of international legal norms. They need vigour in that in the narrow band of cases that customary international law—properly so called and appreciated with reference to state practice and opinio juris—is adopted into domestic law, they should defend it with heart. More broadly, courts need to engage substantively with norms of international law so as to drive normative content in the evolution of international law. Parliament for its part needs to exercise the powers conferred on it by the Constitution. As recommended by the National Commission and several constitutional theorists it needs both to pass legislation to circumscribe the unfettered powers exercised by the executive, and also to incorporate international law into domestic law through legislation. The executive for its part, notwithstanding the extensive powers offered to it by the Constitution, needs to exercise these powers with due deference to Parliament and the people. (p. 160)

Notes:

(*) I am grateful to Shibani Ghosh for her excellent research assistance and insightful feedback.

(1) Daniel Bodansky, ‘Customary (and Not So Customary) International Environmental Law’ (1995–96) 3(1) Indiana Journal of Global Legal Studies 105.

(2) Tom Ginsburg, ‘Locking in Democracy, Constitutions, Commitments and International Law’ (2006) 38(4) New York University Journal of International Law and Politics 707.

(3) Joshua Cohen and Charles Sabel, ‘Global Democracy’ (2006) 37(4) New York University Journal of International Law and Politics 763.

(4) Constitution of India 1950, art 51(c).

(5) Constitution of India 1950, art 37.

(6) Kesavananda Bharati v State of Kerala (1973) 4 SCC 225.

(7) Minerva Mills v Union of India (1980) 3 SCC 625 [56]. In any case, one scholar has argued that even though the DPSP are not enforceable, if Parliament enacts a law that contravenes a DPSP, the President could refuse his/her assent to it. CH Alexander, ‘International Law in India’ (1952) 1(3) International and Comparative Law Quarterly 289, 294.

(8) See generally, VG Hegde, ‘Indian Courts and International Law’ (2010) 23(1) Leiden Journal of International Law 53.

(9) See Vellore Citizen’s Welfare Forum v Union of India (1996) 5 SCC 647 [13]–[15] and discussion below.

(10) See VS Mani, ‘Effectuation of International Law in the Municipal Legal Order: The Law and Practice of India’ (1995) 5 Asian Yearbook of International Law 145, 157.

(11) Mani (n 10).

(12) Mani (n 10).

(13) Alexander (n 7) 291.

(14) Mani (n 10) 158.

(15) Alexander (n 7) 294–95.

(16) Constitution of India 1950, art 253, provides Parliament with the power to make laws to implement any ‘treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body’. See National Commission to Review the Working of the Constitution, A Consultation Paper on Treaty-Making under Our Constitution (2001); See generally, Hegde (n 8) demonstrating a shift from the doctrine of ‘transformation’ to that of ‘incorporation’ in Indian case law.

(17) Mani (n 10) 172.

(18) Statute of the International Court of Justice 1945, art 38. Art 38 also identifies subsidiary sources of international law.

(19) See Bruno Simma and Philip Alston, ‘Sources of Human Rights Law: Custom, Jus Cogens, and General Principles’ (1988–89) 12 Australian Yearbook of International Law 82, 102.

(20) Simma and Alston (n 19) 102.

(21) Daniel Bodansky, The Art and Craft of International Environmental Law (Harvard University Press 2009) xx.

(22) See remarks by G Handl in W Michael Reisman and others, ‘A Hard Look at Soft Law’ (1988) 82 American Society of International Law Proceedings 371.

(23) See Kuldip Nayar v Union of India (2006) 7 SCC 1 [167].

(24) (2013) 7 SCC 705. An early case in point is M/S Mackinnon Mackenzie and Co Ltd v Audrey D’Costa (1987) 2 SCC 469. See also Pratap Singh v Union of India (2005) 3 SCC 551.

(25) Salil Bali (n 24) [44]; see also the interesting case of Dadu v State of Maharashtra (2000) 8 SCC 437 [23].

(26) (1997) 3 SCC 433. See also, for an early example, Sheela Barse v Secretary, Children’s Aid Society (1987) 3 SCC 50.

(27) People’s Union for Civil Liberties (n 26) [13].

(28) (1997) 6 SCC 241.

(29) Vishaka (n 28) [14].

(30) Vishaka (n 28) [7].

(31) Vishaka (n 28) [16].

(32) Upendra Baxi, ‘The Avatars of Indian Judicial Activism: Explorations in the Geography of (In)justice’ in SK Verma and Kusum Kumar (eds), Fifty Years of the Supreme Court of India: Its Grasp and Reach (Oxford University Press 2000) 156, 157.

(33) Regina v Secretary of State for the Home Department ex parte Brind [1991] 1 AC 696 (HL).

(34) See Melissa Waters, ‘Creeping Monism: The Judicial Trend Towards Interpretative Incorporation of Human Rights Treaties’ (2007) 107 Columbia Law Review 628.

(35) ‘Bangalore Principles’ on Domestic Application of International Human Rights Norms and on Government under the Law, Concluding Statement of the Judicial Colloquium held in Bangalore, India, 24–26 February 1988, para 5.

(36) (2013) 6 SCC 620.

(37) The Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management 1997, G Sundarrajan (n 36) [223]–[224] (Deepak Misra J).

(38) G Sundarrajan (n 36) 223.

(39) (2014) 5 SCC 438 [58]–[60].

(40) 1999 CriLJ 919.

(41) Ktaer Abbas Habib Al Qutaifi (n 40) [24].

(42) Ktaer Abbas Habib Al Qutaifi (n 40) [23].

(43) Ktaer Abbas Habib Al Qutaifi (n 40) [23].

(44) Vellore Citizen’s Welfare Forum (n 9) [13]–[15].

(45) Constitution of India 1950, arts 47, 48A, and 51(g).

(46) Vellore Citizens’ Welfare Forum (n 9) [13]–[14].

(47) Vellore Citizens’ Welfare Forum (n 9) [10].

(48) Vellore Citizens’ Welfare Forum (n 9) [10].

(49) Vellore Citizens’ Welfare Forum (n 9) [11].

(50) Vellore Citizens’ Welfare Forum (n 9) [11], [15].

(51) See eg, Research Foundation for Science Technology National Resource Policy v Union of India (2005) 10 SCC 510 [33] and quoted with approval in Research Foundation for Science v Union of India (2005) 13 SCC 186 [35].

(52) See eg, Canada Ltée (Spraytech, Société d’arrosage) v Hudson (Town) [2001] 2 SCR 241 (Supreme Court of Canada).

(53) See Lavanya Rajamani, The Precautionary Principle in the Indian Courts: The Vanishing Line between Rhetoric and Law, ed Shibani Ghosh (ICSSR-CPR, forthcoming).

(54) See, for an extensive list of references, Nicolas de Sadeleer, Environmental Principles: From Political Slogans to Legal Rules (Oxford University Press 2002) 91–223.

(55) See Cass Sunstein, ‘Beyond the Precautionary Principle’ (2003) University of Chicago Legal Theory and Public Law Working Paper 38/2003 <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=307098>, accessed October 2015.

(56) Curtis Bradley and Jack Goldsmith, ‘Customary International Law as Federal Common Law’ (1997) 110(4) Harvard Law Review 815.

(57) Bradley and Goldsmith (n 56).

(58) See generally, Vaughan Lowe, ‘Sustainable Development and Unsustainable Arguments’ in Alan Boyle and David Freestone (eds) International Law and Sustainable Development (Oxford University Press 1999) 19.

(59) (2012) 3 SCC 346.

(60) Dalbir Singh (n 59) 101.

(61) Bachan Singh v State of Punjab (1980) 2 SCC 684.

(62) Mithu v State of Punjab (1983) 2 SCC 277.

(63) Alfred von Verdross, ‘Forbidden Treaties in International Law’ (1937) 31 American Journal of International Law 571.

(64) Vienna Convention on the Law of Treaties 1969, art 53.

(65) Variously attributed to state consent, natural law, necessity, international public order, or constitutional principles. See Dinah Shelton, ‘Normative Hierarchy in International Law’ (2006) 100(2) American Journal of International Law 291.

(66) Possibilities that have been mooted include prohibition on genocide, slave trading, use of force, etc; Shelton (n 65) 299–302.

(67) Shelton (n 65) 302–03.

(68) Shelton (n 65) 297.

(69) Simma and Alston (n 19) 103.

(70) Md Jamiluddin Nasir v State of West Bengal (2014) 7 SCC 443.

(71) National Legal Service Authority (n 39).

(72) National Legal Service Authority (n 39) [49].

(73) National Legal Service Authority (n 39) [53].

(74) See generally, Michael O’Flaherty and John Fisher, ‘Sexual Orientation, Gender Identity and International Human Rights Law: Contextualising the Yogyakarta Principles’ (2008) 8(2) Human Rights Law Review 207.

(75) An earlier case that takes a similar approach to soft law is People’s Union for Civil Liberties v Union of India. (2005) 2 SCC 436.

(76) Reisman et al (n 22) 371–72.

(77) Catherine Redgwell, ‘Multilateral Environmental Treaty-Making’ in Vera Gowlland-Debbas (ed) Multilateral Treaty-Making (Martinus Nijhoff Publishers 2000) 104–05.

(78) (1993) 2 SCC 746.

(79) (1993) SCC Supp (2) 433 [18].

(80) National Legal Service Authority (n 39).

(81) Writ Petition (Civil) No 7279/2013 (Delhi High Court 2014).

(82) Naz Foundation v Government of India (2009) 160 DLT 277.

(83) See Melissa Waters, ‘Mediating Norms and Identity: The Role of Transnational Judicial Dialogue in Creating and Enforcing International Law’ (2004–05) 93 Georgetown Law Journal 487, 502, on the mutually reinforcing relations between international legal norms and domestic cultural and societal norms.

(84) See for a discussion on this concept, Naz Foundation v Government of India (n 82).

(85) (2014) 1 SCC 1.

(86) (1984) 2 SCC 534 [5].

(87) (1976) 2 SCC 521 [542].

(88) Vellore Citizen’s Welfare Forum (n 9) [25].

(89) National Legal Service Authority (n 39) [58]–[60].

(90) See generally, Simma and Alston (n 19).

(91) Rajeev Dhavan, ‘Treaties and People: Indian Reflections’ (1997) 39 Journal of the Indian Law Institute 1.

(92) Entries 10, 11, 12, 13, 14, 15, and 16.

(93) AIR 1994 Bom 323.

(94) PB Samant (n 93) [4].

(95) See eg, Rekha Saxena, ‘Treaty Making Powers: A Case for Federalisation and Parliamentarisation’ (2007) 42(1) Economic and Political Weekly 24.

(96) Saxena (n 95) 24.

(97) (1970) 3 SCC 400 [80].

(98) National Commission to Review the Working of the Constitution (n 16). See also Mani (n 10).

(99) Law and Practice Concerning the Conclusion of Treaties (United Nations Legal Series 1953) 63; cf Upendra Baxi, ‘Law of Treaties in the Contemporary Practice of India’ (1965) 14 Indian Yearbook of International Affairs 137.

(100) AIR 1955 SC 549.

(101) Ram Jawaya Kapur (n 100) 12.

(102) See Devesh Kapur and Pratap Bhanu Mehta, ‘The Indian Parliament as an Institution of Accountability’ (Democracy, Governance and Human Rights Programme Paper No. 23, United Nations Research Institute for Social Development, January 2006) 28.

(103) National Commission to Review the Working of the Constitution (n 16) para 10.

(104) See generally, Baxi (n 99).

(105) (1980) 2 SCC 360 [6] in part quoting AH Robertson (ed), Human Rights in National and International Law (Manchester University Press 1968) 13.

(106) See case law discussed above, and Hegde (n 8).

(107) Gramophone Company of India Ltd (n 86) [5].

(108) Baxi (n 99).

(109) See generally, Dhavan (n 91); P Chandrasekhara Rao, The Indian Constitution and International Law (Taxman 1993).

(110) Dhavan (n 91).

(111) (1997) 1 SCC 416.

(112) India’s declarations to the ICCPR and ICESCR <https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-3&chapter=4&lang=en>, accessed October 2015.

(113) DK Basu (n 111) 42.

(114) Nilabati Behera (n 78).

(115) Dhavan (n 91).

(116) VR Krishna Iyer, Constitutional Miscellany (2nd edn, Eastern Book Company 2003) 11.

(117) Maganbhai Ishwarbhai Patel (n 97) [80]. See also Mani (n 10) 165–68.

(118) Rao (n 109) 149.

(119) Decision 1/CP.17, ‘Establishment of an Ad Hoc Working Group on a Durban Platform for Enhanced Action, 2011’ in FCCC/CP/2011/9/Add.1 (15 March 2012) para 2.