Recent apex court judgments show a misunderstanding of the relationship between international law and domestic Indian law. Greater conceptual clarity on this is critical.
Supreme Court of India. Credit: Shome Basu
The Supreme Court’s recent judgment in Jeeja Ghosh v. Union of India needs to be celebrated for reaffirming the rights of persons with disabilities to live with dignity. This case arose from a public interest litigation that was filed when Spice Jet forcibly de-boarded Jeeja Ghosh because of her disability. The court held the airline’s action illegal and ordered it to pay Rs. 10 lakh to the petitioner. In reaching this conclusion, the court also referred to international law to underline the rights of persons with disabilities. For instance, para 13 of the judgment says: “The Vienna Convention on the Law of Treaties, 1963 requires India’s internal legislation to comply with international commitments. Article 27 states that a “State party… may not invoke the provisions of its internal law as justification for its failure to perform a treaty.”
The Vienna Convention on the Law of Treaties (VCLT) was concluded in 1969 and it entered into force in 1980 so it is curious why the court refers to 1963. Be that as it may, the first sentence of para 13 appears to be an expression of the pacta sunt servanda principle in international law. According to this principle, given in Article 26 of the VCLT, every treaty signed by a country is binding on it and the obligations imposed by treaties must be performed by the country in good faith.
One way to honour treaty obligations is to ensure that the country’s domestic laws are consistent with its treaty obligations. It is this aspect, which is reflected, in the first sentence of para 13 of the judgement. However, if this is the case, then one wonders why, obscurely, the second sentence of the same para cites Article 27 and not Article 26. It gives the impression that the court is justifying its expression of the pacta sunt servanda principle by invoking Article 27 of the VCLT, whereas the court should have cited Article 26. Article 27 of the VCLT has a different purpose. It proscribes the invocation of internal law as a justification to the violation of international law. That is, when a state is accused of violating international law, it cannot rely on its domestic law as a defence. This principle is also reflected in Article 3 of the International Law Commission (ILC) Articles of State Responsibility, which states that the characterisation of an act of a state as internationally wrongful is governed by international law and that such characterisation is not affected by the characterisation of the same act as lawful by internal law. Therefore, one is unsure about the relevance of citing Article 27 in the judgment.
If anything, the phrasing is indicative of the fact that complete clarity on the nature of international law and its relationship with India’s domestic legal system still evades the Indian Supreme Court. The ubiquitous nature of international law today regulates many things such as the environment, trade, investment, health, human rights, etc. This all-permeating character of international law has direct impact on countries. Therefore, a clearer understanding of international law and its interface with domestic law is of paramount importance. Unlike some countries, where international law, even without transformation to national law, is considered part of the law of the land (i.e. the principle of monism), international law does not become binding under the Indian constitution until an appropriate domestic legislation is enacted to give effect to it. This is the principle of dualism and is reflected in Article 253, which gives parliament the power to make laws that implement international law.
Indeed, many cases decided by high courts and the Supreme Court reflect the dualist approach of the Indian legal system. In the words of justice Krishna Iyer in Jolly George Vergese v. Bank of Cochin, “until the [m]unicipal Law is changed to accommodate the [treaty], what binds the courts is the former not the latter”. More recently, the Supreme Court in State of West Bengal v. Kesoram Industries reiterated that India follows the “doctrine of dualism” and that “a treaty entered into by India cannot become law of the land…unless Parliament passes a law as required under Article 253”.
Judicial incorporation?
However, the Supreme Court in certain cases has digressed from this doctrine of dualism, giving rise to confusion regarding the relationship between international law and India’s legal system.
For instance, in Vishaka v. State of Rajasthan, 1997, a landmark judgment on sexual harassment of women at workplaces, it was noted 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”. Not only did the court use international law to find the meaning of domestic law, it also held that international conventions not inconsistent with fundamental rights must be read “to enlarge the meaning and content thereof”. This was reaffirmed in the National Legal Services Authority v. Union of India, 2014 – the case that recognised transgender as a third category of gender. The court said: ‘If parliament has made any legislation which is in conflict with the international law, then Indian courts are bound to give effect to the Indian law, rather than international law. However, in the absence of a contrary legislation, municipal courts in India would respect the rules of international law.’ It then went on to say that any international convention not inconsistent with fundamental rights must be read into Articles 14, 15, 19 and 21 to enlarge the meaning and content thereof.
In cases such as these, the court has often relied on Article 51 (c) of the Constitution (read with Article 253) to support its reasoning. Article 51 (c) directs the state to ‘endeavour to’ ‘foster respect for international law and treaty obligations’. As Lavanya Rajamani in her essay on ‘International Law and the Constitutional Schema’ in the Oxford Handbook of the Indian Constitution points out, the obligation under Article 51 (c) is one of making an effort and not of achieving a result. Thus, can the Supreme Court rely on it to judicially incorporate international treaties into domestic law?
Moreover, based on this, the key question that arises is: when the court says that international treaties, which are consistent with Indian laws, can be used to enlarge the meaning and content of domestic laws such as fundamental rights, is the court saying that these international treaties are part of the law of the land or have ‘direct effect’ even without parliament enacting a domestic legislation? Or should a distinction be drawn between using international treaties to interpret and enlarge the content of domestic law and concluding that these treaties are part of the law of the land?
Although one is unsure if such distinction has any merit, it might have practical consequences. For example, will the government (i.e. the executive) be right in adopting measures to implement international treaties, which are consistent with domestic laws, even when parliament has not enacted a legislation giving ‘effect’ to such an international treaty? If the Supreme Court’s jurisprudence is to be understood in support of the ‘direct effect’ theory as posed above, then the executive will be right in doing so. This is indeed what India argued in the WTO Solar Panel case against the US, decided recently. Citing the jurisprudence of its own Supreme Court, India argued that ‘legislative action to incorporate an international instrument is required only when there is “conflicting” domestic legislation’. Meaning thereby that international instruments consistent with domestic law are part of the law of the land even without an enabling domestic legislation. However, the WTO Appellate Body (AB) didn’t accept India’s argument and held that using international law to interpret India’s domestic laws does not mean that these international instruments have ‘direct effect’ in the Indian legal system.
Another key question in this regard is: can the court’s jurisprudence be read to imply that the court is endeavouring to segregate international norms, more specifically international treaties, binding India into two categories: ‘treaties consistent with domestic law’ and ‘treaties inconsistent with domestic law’? If yes, then can Article 51 (c) be relied upon to bring about this categorisation? Perhaps, not because fostering respect for international law under Article 51 (c) is for all treaties that India has signed and not just for ‘treaties consistent with domestic law’.
Interestingly, the court, in cases such as G Sundarrajan v Union of India, 2013, and in the Transgender case has even resorted to those international treaties consistent with Indian law that India has not signed.
(Mis)adventures with customary international law
Apart from treaties, custom is also a formal source of international law. The Supreme Court’s dealings with custom or customary international law (CIL) is also a bit perplexing. In Vellore Citizens’ Welfare Forum v. Union of India, 1996, the court said that there is no difficulty in accepting CIL, not contrary to domestic law, as part of the Indian legal system. Although both treaties and CIL impose equally binding obligations on a country, unlike treaties it is often not easy to ascertain whether a norm has indeed attained the status of CIL. A norm becomes part of CIL only if states customarily follow that norm from a sense of legal obligation.
In this case, the court declared that sustainable development as a balancing concept between ecology and development has been accepted as part of customary international law. However, as Lavanya Rajamani has shown, the court reached this conclusion by simply referring to soft law instruments such as the Rio Declaration and the Bruntland report. Incorporation without properly ascertaining whether a norm has become part of CIL would lead to perilous situations where even those norms that do not bind India internationally become part of the Indian legal system.
To conclude, international legal norms are not directly enforceable in Indian courts till there is a domestic legislation giving effect to these norms. In practice, however, courts have practised what has been described as ‘creeping monism’, where international legal norms are internalised into domestic law. This blurs the boundary between dualism and monism and raises a number of conceptual questions. The WTO Solar Panel case demonstrates this quite well. In view of this, it is critical for India’s apex court to demonstrate greater rigour in approaching international law and in explaining its relationship with domestic law.
Prabhash Ranjan is an assistant professor of law at the South Asian University (SAU), New Delhi. Anmolam and Farheen Ahmad are LLM candidates at SAU.