In the field of international law, India has been a major contributor, particularly in the areas of human rights law, environmental law, arbitration law and trade law. In India, domestic laws have been in accordance with international standards and norms in order to meet the international obligations that it has towards all other ratifying nations. In India, international law is implemented either on the basis of the role played by each government organ, or from the point of view of applicability in each field of law. India is a party to over one hundred and sixty treaties and conventions dealing with different areas of law such as air law, space law, and maritime law. The Indian constitution and international law have ties that date back to the days of pre-independence, when India was a separate member of the League of Nations even during the British rule. The Indian Constitution adopted on 26 November 1950 was strongly inspired by the principles contained in The Universal Declaration of Human Rights, an international document adopted by the General Assembly of the United Nations with the basic motive for the security and preservation of the fundamental rights to which all human beings have the right.
In the Indian context international law can be widely divided into two parts which are –
1) Application of foreign law in the era preconstitutional
2) Enforcement by post-constitutional era of international law
1) Application of foreign law in the era preconstitutional
India ‘s constitution and international law can be tied back to the days of pre-independence. The pre-constitutional period is known as the period before Indian constitution was adopted and British ruled India. During this time , India adopted many the British foreign law practices. India was a separate member of the League of Nations even during this period, and was also one of the founding members of the United Nations. The knowledge of Britain’s domestic law with international law provisions can be dealt with in 2 categories-
- British domestic law and customary international law rules;
The British considers the customary rules of international law as part of their own domestic laws, subject to the requirement that the customary rules of international law should not be incompatible with those of domestic law in the British statutes. British domestic laws and rules laid down in the Treaty on International Law – Under British law there are several exclusive treaties that need British parliament’s approval for compliance. This consent can be given directly, or the parliament may enact these treaties with the aid of legislation in the state laws.
- Enforcement by post-constitutional era of international law
India’s constitution laid down several provisions relating to international law in its various parts. Some of them are the following-
Preamble – The preamble outlines the purposes of the constitution as a whole. It contains certain specific fundamental values and philosophies which India as a country guarantees to its people and aims to achieve as a nation. Among other items, it mentions the achievement of cultural, social and political for all people and aims at fostering freedom of thought and speech and equal status and opportunity for all in the country. These values are said to be the foundation of true democracy and are considered by nature universal. Sovereignty in international law is an important concept which is also a value mentioned in the preamble to India’s constitution.
Sovereignty essentially implies a nation’s independence, and India ‘s external sovereignty means it can acquire any foreign territory and also surrender any part of the Indian territory subject to certain limitations set out in the Constitution.
General principles of international law provided for in the Constitution
The most important Article in the Constitution relating to international law is Article 51. The State is responsible, in compliance with the provisions of this Article, for fostering international peace and security in the nation and for maintaining just and honorable ties with other nations. The Article explicitly specifies that the State shall comply with all provisions relating to international law and make every effort to satisfy its obligations under the Treaty and, with the aid of arbitration, shall also facilitate the resolution of international disputes.
This article advises the state to abide by international law but does not make it an specific part of Indian legislation. Article 51 of the Constitution is a Guiding concept to be interpreted in accordance with Article 37 of the Indian Constitution. Article 37 notes that the provisions found in Part IV of the Constitution shall not be enforceable in any case, but the principles laid down are vital to the country’s governance and to the State’s obligation to ensure that those principles are followed in the making of laws.
In the case of Keshavanand Bharti v / s state of Kerala (1973), Honorable Chief Justice Sikri said when there is a situation where the language of municipal law is ambiguous or contrary then the court must take the guidance of that particular municipal law’s parent foreign authority. This is because Article 253 of our Constitution gives our Parliament exclusive power to make laws to give effect to any treaty, convention or agreement reached at any international conference with any government, or any decision taken. Similarly, in the case of Krishna Sharma v / s West Bengal State (1954), the high court in Calcutta said that when there is a conflict between municipal law and domestic law, the courts must attempt to create a harmonious structure between the two laws. 3) International law and the executive powers;
According to the Constitution, by virtue of Articles 53,73 and 77 the executive has the right to make laws. Article 53 notes that the executive authority shall be vested on the President of India and shall be exercised by the President directly in compliance with the Indian constitution or by the officers subordinated to him. The president will take the advice of the council of ministers when exercising his power directly. While it is said that all executive functions are performed in the president’s name, they are subject to the provision that they must not infringe the powers of the legislature and the judiciary. Every contract concluded by India shall also be rendered in the name of the President.
As stated in Article 73, the union’s executive power is applied to all matters in respect of which the parliament has the power to make laws subject to the constitutional provisions or to any other legislation enacted by Parliament. As mentioned in Article 253, the parliament has the power to legislate and enact laws to fulfill international obligations Given the allocation of Legislative powers. We may assume that the executive has a wide range of powers, as there has been no legislation in India so far that has restricted the executive’s powers in international law and relations matters.
Treaty-making Power under India’s Constitution
Since Article 73 of India’s Constitution imposes no limitation on the executive’s powers in relation to international law, this enables the executive to enter into any form of treaty obligations. Thus the supreme court said that in India, international law is a part of domestic law except where there is overlap with domestic law provisions. We may therefore conclude that Parliament’s approval is only deemed necessary for treaties that infringe citizens ‘ rights or entail a new reform in existing municipal law. The Supreme Court therefore ruled that foreign law is part of municipal law except where it is inconsistent with the municipal law provisions. To sum up, the current situation in India is that Parliament’s approval is only needed for treaties that impact citizens’ rights or that require a new or modified municipal law in place.
Government legislative powers over international law
Article 245(1) of the Constitution grants parliament the right to make laws for the entire territory of India or any part thereof. At the same time Article 246 distributes legislative powers under Schedule VII between the center (List I) and the State (List II). List III refers to the list of overlapping topics on which both the center and the state may make laws. Relating to international law Article 253 is the specific article which gives Parliament the special power to legislate and pass laws for the implementation of international conventions. Under Article 253, the parliament has the exclusive right to make laws for all or any part of India’s territory for the purpose of implementing an international treaty, agreement or convention with other countries, or any decision taken at any association or conference. In Part XI, Chapter 1 of the Constitution, which distributes powers between the union and the states, the power provided for in Article 253 overrules even the aforementioned provisions. Accordingly, Article 253 empowers Parliament to enact laws on matters referred to in List II of Schedule VII with a view to the implementation of international treaties , agreements and conventions, and parliamentary authority in international law may be said to be completed.
Furthermore, the residual legislative power also rests with the parliament which empowers the parliament to legislate on matters not mentioned in Schedule VII. In addition , Article 2 grants the parliament the right by statute to accept foreign territories into the Union. For example , adding the state of Sikkim to constitutional amendments by the 35th (1974) and 36th (1975). The constitution does not expressly require the parliament to forfeit an Indian territory and this can only be achieved by a constitutional amendment interpreted by the supreme court.
The judiciary of India, and international law
Although the Indian judiciary has no power to make legislation, it interprets India ‘s duty in international law by adjudicating domestic cases related to international law issues. The Indian judiciary has played a very active role in enforcing India’s international obligations under international treaties, especially in the areas of environmental law and human rights, in this regard. We may see India’s approach to international law from two viewpoints- 1) Indian law in respect of the Treaties. The courts have said the treaties ratified by India should be followed in good faith but at the same time the presence of domestic law is necessary for the executive to obey a treaty. Under general terms, treaties are assumed to be self-executing unless and unless there is a provision that the constitution or any current legislation be changed, or that any new legislation be enacted. For this purpose, the courts may take advantage of principles of the treaty which are not incompatible with India ‘s laws. One can not negate the role of foreign treaties in enforcing domestic laws. The following foreign treaties were used-
1) To fill a void in existing legislation
2) To aid with the application of legislation
3) To maintain and defend a position adopted
4) To enforce international agreements where they do not contradict domestic law.
5) To respect ratifications of the international treaties and international law.
The question which has very often appeared before the Indian courts about the enforcement of international law treaties is whether these treaties are necessarily binding or entail any enabling legislation. The supreme court has expressed a dualistic approach to Indian law. In the case of Jolly George Verghese vs Bank of Cochin (1980), Justice Krishna Iyer claimed that what is binding on the court is the former and not the latter, unless the municipal law is altered to accommodate the Treaty.
Furthermore, the Supreme Court in the case of West Bengal vs Kesoram Industries (2004) reiterated that India obeys the doctrine of dualism and stated that any treaty signed by India can not become the law of the land unless the parliament passes a law as provided for in section 253 of the Indian Constitution; In the landmark case of Vishaka vs. the State of Rajasthan(1997), when drafting the guidelines on women’s sexual abuse in the workplace, the court referred to several international conventions and norms applicable for the purposes of ensuring gender equality, the right to work with dignity and 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 on Article 9(5) of the Civil and Political Rights Compact (1966) when awarding the claimant compensation for the matter of custodial death. In the case of Chairman Railway Board vs. Chandrima Das(2000), the court used the principles of the Universal Declaration of Human Rights thus broadening the scope of Article 21 of the Constitution by ensuring protections for the victims of rape by foreigners.
While from the above cases it can be noted that the court has the right to apply international treaties to provisions of domestic law if they are not incompatible with current municipal laws. 2) Indian law in the light of customary foreign law. The Indian judiciary does not generally recognize customary international law laws as being part of domestic law. And the former must prevail where there is a dispute between municipal law and customary international law.
The Supreme Court upheld the relevance of the ideals of sustainable development and the polluter pays principle in the case of the Vellore Citizens Welfare Forum vs Union of India (1996). It claimed that once these principles have been adopted as part of customary international law, there would be no issue in adopting them as part of domestic law unless they are incompatible with existing legislation. In the case of union of citizens for civil rights vs. union of India a similar view was taken. Thus it can be deduced from the above judgment that, although applying the rules of customary international law, the courts are obliged to draw them up in domestic Indian law.
Human rights and State policy recommendations in accordance with international law
The Universal Declaration of Human Rights (UDHR) can be contrasted with the fundamental rights in Part III of the Constitution and the Guideline Principles of State Policy in Part IV of the Constitution, and several similar points can be found. There are also many parallels between the principles and values of Indian constitution and international humanitarian law, for example Part III and Part IV of the Constitution are strongly inspired by the United Nations Charter and the Universal Declaration of Human Rights (UDHR). It can also be seen that the International Convention on Civil and Political Rights (ICCPR) is reflected in Part III of the Constitution, while the Economic and Social Council of the United Nations (ECOSOC) is reflected in Part IV and the Preamble to the Constitution, thus greatly enhancing the framework of human rights legislation in India.
Similarly, Article 51 A of the Indian Constitution gives force to Article 29(1) of the UDHR which mentions the citizens’ duties towards the State which help to create the nation and to understand the importance of individual responsibility. The Constitution is known as the supreme rule of the country. Thus, when evaluating India’s commitment to international law, the Constitution is a text that provides us with the perspective and approach of India to the growing field of international law. As we have seen, India’s relations with international law go back to the days of pre-independence, when India was one of the united nations’ first founding members.
India’s constitution, adopted in the year 1950, was made in accordance with the international community’s status and stance. As mentioned, in order to comply with international law, the preamble, government bodies, human rights and numerous other clauses in the constitution are made. In many of its judgments and rulings, India has attempted to adopt and use international law, subject to the requirement that they are compatible with the country’s domestic law. In addition, the applicability of several Articles has been strengthened by international law treaties and customary international norms, thus building the legal structure and role of India in the field of international law.