DR.

RAM MANOHAR LOHIYA NATIONAL

LAW UNIVERSITY

Basics Of Legislation

Implementation Of International Law In India: Role Of

Judiciary

Submitted to Submitted by

Dr. ShashankShekhar Prakhyat Prakash Mishra

Assistant Professor (Law) Roll No. 098
Dr. Ram Manohar Lohia B.A L.L.B(hons), Ist sem
National Law University Section- B

2017-2018
 ACKNOWLEDGEMENT

I would like to express my special thanks of gratitude to my teacher Mr. Shashank Shekhar

who gave me the golden opportunity to do this wonderful project of Basics of Legislation on

topic IMPLEMENTATION OF INTERNATIONAL LAW IN INDIA: ROLE OF

JUDICIARY, Who also helped me in completing my project and has rendered endless

support, kind and understanding spirit during my project completion. I came to know about

so many new things I am really thankful to him. The completion of this project could not

have been possible without the participation and assistance of various people thus, I would

also like to thank my parents and friends who helped me a lot in finalizing this project within

the limited time frame.

I would also like to thank the Great Almighty, source of supreme knowledge for countless

love rendered on me.

PRAKHYAT PRAKASH MISHRA

ROLLNO-098

ENROLLMENT ID- 170101098

BA LLB(HONS), Ist semester.

 INDEX

1. INTRODUCTION............4

2. RELATION BETWEEN INTERNATIONAL LAW AND INDIAN LAW5

3. IMPLEMENTATION OF INTERNATIONAL TREATIES IN INDIA ...6

Executive Powers to enter into International Agreements......6

Legislative Powers to implement International Agreement.7
Implementation of International Obligations7

4. INDIAN JUDICIARY AND INTERNATIONAL LAW..8

Structure of Judicial System..8

International Treaty for Construction of law...............................................9
General Principles.10

5. JURISPRUDENCE11

6. THE JUDICIAL ROLE OF THE DOMESTIC COURT...12

7. DOCTRINE OF PACTA SUNT SERVANDA AND CONSTITUTIONAL

LIMITATIONS ON INTERNATIONAL TREATY IMPLEMENTATION..13

8. VARIOUS BRANCHES OF LAW AND THEIR IMPLEMENTATION IN

INDIA..14
Human Rights in India..14
Environmental Law and Jurisprudence..15
Trade Law...15
Intellectual Property Rights..16
Alternative Dispute Resolution.17
Space Law...17
Cyber Law...18

9. CONCLUSION.......19
10. REFERENCES......20
 INTRODUCTION

The status of International Law within a municipal legal system is generally determined by

the Constitution of a State or Municipal Law. Unlike France, United States, Germany and

some modern Constitutions that provide relatively clear provisions for the Domestic

Application of International Treaty Law, the constitution of India does not make any specific,

vehement reference to the status of international law in its domestic legal system. Thus, the

process of implementation of international law at national level varies in different countries.

The divergent State practices pertaining to incorporation of international law into municipal

law have been explained by two schools of law Monist and Dualist.

Monist School:- As soon as a States has ratified an international agreement,

that international law automatically becomes a part national law. Under such

systems, treaties are generally considered to be self-executing treaties.

Dualist School:- This school regards international law and municipal law as

separate. According to this school of law, municipal law can apply

international law only when it has been incorporated into municipal law. This

incorporation can result from a statute enacted by the Parliament or through

executive action or by court decisions. Thus, an unincorporated treaty has no

formal standing in domestic law.

India follows the dualist theory for the implementation of international law at domestic level1.

International treaties do not automatically become part of national law in India. It, therefore,

requires the legislation to be made by the Parliament for the implementation of international

law in India. Through judicial activism the Indian judiciary has played a proactive role in

implementing Indias international obligations under International treaties, especially in the

field of human rights and environmental law.

1
Jolly Jeorge Vs. Bank of Cochin, AIR 1980 SC 470
 RELATION BETWEEN INTERNATIONAL LAW AND INDIAN LAW

International law has a very complex and uneasy relationship with the domestic laws of a
country. It is pertinent to note that international treaties are the result of the negotiations
between the States and are governed by international law. Indias approach to international
law can be looked at from two perspectives Indian law vis-a-vis treaties and Indian law vis-
a-vis international customs. India follows the dualist theory of international law. Therefore,
international law principles and norms cannot be invoked in municipal courts without being
expressly incorporated into the domestic law. The courts have held that in the light of the
provisions of Article 51.

Treaties to which India is an assenting party should be implemented in good faith, but
at the same time, the executive cannot be directed to follow the treaty in absence of a
domestic law. However, paradoxically treaties are considered self executing, that is,
they apply in the municipal sphere automatically, except where it requires an
amendment to the Constitution or an existing law, or where a new law is required to
be enacted. Therefore, the Courts can take aid of the treaty principles not inconsistent
with the provisions of laws of India.
Customary international law, on the other hand, is not considered to become part of
municipal law automatically. Therefore, where there is a conflict between municipal
law and customary international law, the former will prevail.
Nevertheless, the courts have played an active role in the implementation of Indias
international obligations and have taken cognizance of both treaty as well as
customary principles of international law in cases involving violations of human
rights or questions of environmental law.
Although Article 51 mandates respect for international law, it is not an enforceable
Article. Article 253 confers exclusive power on the Parliament with respect to
international affairs. But the Constitution contains no express provision settling the
relation and status of international law in Indian courts. This silence" has given the
flexibility to courts to implement international law in a progressive and measured
manner.
 IMPLEMENTATION OF INTERNATIONAL TREATIES IN INDIA

A. Executive Powers to enter into International Agreements

The Central government or government of India has executive power to enter into and
implement international treaties under Articles 246 and 253 read with Entry 14 of List I of the
Seventh Schedule of the Indian Constitution.2 The executive powers of Central government
or government of India are derived from the legislative power of the Union of India. In this
regard, it is to be noted that the executive powers of the Union and State governments are co-
extensive with their respective legislative powers. 3

Executive powers of the Union of India are specifically vested in the President under Article
53 of the Indian Constitution. Apart from vesting the executive power, this provision also
provide for the exercise of such executive power either by him directly or through the officers
subordinate to him in accordance with the Constitution.

It is pertinent to note that Article 73 of the Indian Constitution confers upon the government
of India executive powers over all subjects in which parliament has legislative competence.9
Article 73(1) reads as follows:

Extent of executive powers of the Union,

(1) Subject to the provisions of this Constitution, the executive power of the Union shall
extend

(a) To the matters with respect to which Parliament has powers to make laws; and

(b) To the exercise of such rights, authority and jurisdiction as are exercisable by the
Government of India by virtue of any treaty or agreement: Provided that the executive power
referred to in sub clause (a) shall not, save as expressly provided in this constitution or in any
law made by Parliament, extend in any State to matters with respect in which the Legislature
of the State has also power to make laws.

2
Samsher Singh v. State of Punjab, AIR 1974 SC 2192
3
Article 73 and 162 of the Indian Constitution.
 B. Legislative Powers to implement International Agreement

A treaty may be implemented by exercise of executive power. However, where

implementation of a treaty requires legislation, the parliament has exclusive powers to enact a

statute or legislation under Article 253 of the Indian Constitution. The Article 253 empowers

the Parliament 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. Conferment of

this power on the Parliament is evidently in line with the power conferred upon it by Entries

13 and 14 of List I under the Seventh Schedule. Article 253 makes it amply clear that this

power is available to Parliament, notwithstanding, the division of power between the Centre

and States effected by Article 246 read with the Seventh Schedule.

Where the Constitution does not require action to be taken only by enacting a legislation or

there is no existing law to restrict the executive power of the Union (or the state, as the case

may be), the government would not only be free to take such action by executive order or to

lay down a policy for making of such executive orders, but also to change such orders or the

policy itself, as often as the government requires.

C. Implementation of International Obligations

The basic provision of the constitution of India, by virtue of which international law becomes

implementable through municipal laws of India is Article 51 (c). Article 51 (c) of the

Constitution enjoins the State to endeavour to foster respect for international law and treaty

obligations in the dealings of organized peoples with one another.

It is pertinent to mention that article 51 enshrines one of the fundamental principles of State

policy (DPSP), embodied in Part IV of the Constitution. The directive principles, according

to article 37, are not enforceable through the court of law, nevertheless they are fundamental
in the governance of the country and there is a nonobligatory duty on the part of the State to

apply these principles in making of laws. Thus, the article 51 and the international law per se

are not justiciable in the realm of Indian municipal law.

However, the non-justiciability of Article 51 does not preclude government to strive to

achieve the objectives of the international treaty, which has been ratified by it, in good faith

through executive or legislative actions. Further, judiciary, though not a empowered to make

legislations, is free to interpret Indias obligations under international law into the municipal

laws of the country in pronouncing its decision in a case concerning issues of international

law.4

An examination of the decisions and practice of courts in India is, thus, imperative to

understand the implementation of international law in India.

INDIAN JUDICIARY AND INTERNATIONAL LAW

A. Structure of Judicial System

In India, though the polity is dual, the judiciary is integrated. Therefore, India has an

integrated judicial system5.At the top of the system is the Supreme Court of India which

exercises jurisdiction in different forms, namely writ jurisdiction, appellate, original,

advisory and that conferred under several statutes. At the next level are the High Courts in the

various states. While most states have their own High Courts, some states have common High

Courts. The High Courts also exercise writ jurisdiction, regular appellate jurisdiction as well

as the power of supervision over all the Courts and Tribunals located in their respective

States. The third tier is that of the subordinate judiciary at the districtlevel, which in turn

consists of many levels of judges (both on the civil and criminal sides) whose jurisdiction is

4
Relying upon the Article 51, Sikri, C.J. in Kesavananda Bharathi vs. State of Kerala, (1973) Supp. SCR 1
5
D.D. Basu, Introduction to the Constitution of India, 20th Edn (Nagpur: Wadhwa Sales Corporation 2008)
based on territorial and pecuniary limits. In addition to the subordinate judiciary there are

specialized courts and tribunals at the district and state levels to hear and decide matters

relating to direct and indirect taxes, labour disputes, service disputes in state agencies, family

disputes, motor accident claims as well as consumer complaints to name a few.

The Supreme Court and the High Courts as the courts of records are the custodian of the

constitution has an awesome responsibility. Articles 129 and 215 recognize the existence of

such power in the Supreme Court and the High Courts as they exercise inter alia the

sovereign judicial power. The Supreme Court and the High Courts also have writ

jurisdictions under Article 32 and 226 of the Indian Constitution, respectively. Thus, they are

empowered to provide remedy in the form of writs in case of violation of fundamental rights

guaranteed under chapter III of the Constitution of India.6

B. International Treaty for Construction of law

Wherever necessary, Indian courts can look into International Conventions as an external aid

for construction of a national legislation.7 The Supreme Court in Visakha v. State of

Rajasthan,8 took recourse to International Convention for the purpose of construction of

domestic law. The Court observed:

In the absence of domestic law occupying the field to formulate effective measures

to check the evil of sexual harassment of working women at all work places, the contents of

International Conventions and norms are significant for the purpose of interpretation of the

guarantee of gender equality, right to work with human dignity in Articles 14, 15, 19(1)(g)

and 21 of the Constitution and the safeguards against sexual harassment implicit therein. Any

international convention not inconsistent with the fundamental rights and in harmony with its

6
See D.D. Basu, ibid., n.14
7
P.N. Krishanlal v Govt. of Kerala, (1995) Sup. (2) SCC 187
8
AIR 1997 SC 3011
spirit must be read into those provisions to enlarge the meaning and content thereof, to

promote the object of the Constitutional guarantee.

C. General Principles

1. Construing Existing laws to implement treaty Obligations

Obligations arising under international agreements or treaties are not, by their own force,

binding in Indian domestic law. Appropriate legislative or executive action has to be taken

for bringing them into force. Although not self-executing under Indian law, implementation

of a treaty does not require fresh legislative or executive action if existing administrative

regulations or statutory or constitutional provisions permit the implementation of the treaty in

question. The Indian courts may construe, in this context, statutory or constitutional

provisions that pre-exist a treaty obligation in order to render them consistent with such a

treaty obligation.

2. Fostering Respect for International Law

The Directive Principles of State Policy as enshrined in Article 51 of the Indian Constitution

enjoin upon the State to endeavour, inter alia, to foster respect for international law and treaty

obligations in the dealings of organized people with one another. It is a fundamental principle

of statutory interpretation in Indian domestic law that, wherever possible, a statutory

provision must be interpreted consistently with Indias international obligations, whether

under customary international law or an international treaty or convention. If the terms of the

legislation are not clear and are reasonably capable of more than one meaning, the treaty

itself becomes relevant, for there is a prima facie presumption that Parliament does not intend

to act in breach of international law, including therein a specific treaty obligation; and if one
of the meanings which can reasonably be ascribed to the legislation is consonant with the

treaty obligations and another or others are not, the meaning which is consonant is to be

preferred

JURISPRUDENCE

Relying upon the Article 51, Sikri, C.J. in Kesavananda Bharathi vs. State of Kerala,

observed as under:

It seems to me that, in view of Article 51 of the directive principles, this Court

must interpret language of the Constitution, if not intractable, which is after all an intractable

law, in the light of the United Nations Charter and the solemn declaration subscribed to by

India.

The Supreme Court in Visakha v. State of Rajasthan took recourse to International

Convention for the purpose of construction of domestic law.9 The Court observed:

In the absence of domestic law occupying the field to formulate effective measures

to check the evil of sexual harassment of working women at all work places, the contents of

International Conventions and norms are significant for the purpose of interpretation of the

guarantee of gender equality, right to work with human dignity in Articles 14, 15, 19(1)(g)

and 21 of the Constitution and the safeguards against sexual harassment implicit therein. Any

international convention not inconsistent with the fundamental rights and in harmony with its

spirit must be read into those provisions to enlarge the meaning and content thereof, to

promote the object of the Constitutional guarantee.

9
AIR 1997 SC 3011
In Jolly George Varghese and Another v. The Bank of Cochin,10 the Court first attempted to

deal with the emerging linkages between domestic law and human rights by reconciling

Article 11 of the International Covenant on Civil and Political Rights (ICCPR) with

Contractual provisions under municipal law to protect human rights of a the civil debtor

whose personal liberty was at stake due to judicial process under Section 51 (Proviso) and

Order 21, Rule 37, Civil Procedure Code.

The Court in Vellore Citizens Welfare Forum v. Union of India and Others,11 referring to the

precautionary principle and the polluter pays principle as part of the environmental law of

the country, held as follows:

Even otherwise, once these principles are accepted as part of the Customary

International Law there would be no difficulty in accepting them as part of the domestic law.

It is almost accepted proposition of law that the rules of Customary International Law which

are not contrary to the municipal law shall be deemed to have been incorporated in the

domestic law and shall be followed by the Courts of Law.

A survey of Indian jurisprudence, thus, indicates the active role being played by the higher

judiciary in the implementation of Indias international obligations.

THE JURIDICAL ROLE OF THE DOMESTIC COURT

The courts are the guardian of the Constitution of India. In the absence of any treaty

regulating legislation in India, it mainly has to play the following roles:

It may have to interpret the legislation implementing a treaty;

In case of ambiguity it may have to interpret the International treaty provisions along

with the legislation implementing a treaty in domestic law;

10
AIR 1980 SC 470
11
AIR 1996 SC 2715
 The role of the courts in case an international treaty has been ratified but not

incorporated within domestic law;

The role of the court in case where an international treaty to which the executive has

ratified but with some reservations;

The role that it might have to play in cases of international treaties to which such state

is not a party yet treaties are nevertheless of vital importance ( e. g Human Rights

Treaties like ICCPR )

However the list is by no means exhaustive and is merely indicative of the situations where a

domestic court may come across interpreting International treaty provisions

THE DOCTRINE OF PACTA SUNT SERVANDA AND CONSTITUTIONAL

LIMITATIONS ON INTERNATIONAL TREATY IMPLEMENTATION

It is said of the Vienna convention that it is the convention of conventions. The doctrine of

pacta sunt servanda contained in article 26 and article 27 of the Vienna convention, 1980

lays down that every treaty in force is binding upon the parties to it and must be performed in

good faith and a party may not invoke the provisions of its internal law as a justification for

its failure to perform a treaty.

With such expectations flowing out of the doctrine of pacta sunt servanda leads us to

another question that is do international treaties have to stand the constitutional test of being

conformity with part III of the Constitution of India as advocated by Basu; and in addition to

it do they also have to stand the test of the vague doctrine of Basic Structure; or can a State

have the defense of Sovereignty for non- compliance with the treaty provisions.
International obligations once undertaken must be complied with, but International Law does

not mention the manner in which compliance is to be carried out, with this perception, all the

divergence of state practices are accommodated. Secondly, such International treaty

obligations command responsibility or liability at international plane and at National plane

it is submitted it is only a legitimate expectation that can be made by such International

treaties Hence while interpreting International treaty provisions the domestic courts will have

to subject such interpretation to such Constitutional tests as stated hereinabove. The same

view has been expressed by the National Commission to Review the Working of the

Constitution in the following terms: Judiciary has no specific role in treaty-making as such

but if and when a question arises whether a treaty concluded by the Union violates any of the

Constitutional provisions, judiciary come into the picture. It needs no emphasis that whether

it is the Union Executive or the Parliament, they cannot enter into any treaty or take any

action towards its implementation which transgresses any of the constitutional limitations. .

It may be interesting to know that some countries like France in fact have a Counseil

Constitutionnel post who have the authority to pronounce on whether a treaty confirms to

the constitution or not.

VARIOUS BRANCHES OF LAW AND THEIR IMPLEMENTATION IN

INDIA

A. Human Rights in India

Fundamental rights under the Indian Constitution and the international humanitarian law

contain similar principles and values. Developments in international law have paved way to

various human rights legislations in India. A greater role is being played by the judiciary in

developing human rights jurisprudence in India based on international principles.

As highlighted earlier under the section Indian Constitution and International Law", the

Fundamental Rights and Directive Principles in the Constitution echo international human

rights principle. Special legislations and provisions like the Child Labour (Prohibition and

Regulation) Act, 1986, the Mental Health Act 1987, the Human Rights Act, 1993, the

Persons with Disability (Equal Opportunities, Protection of Rights and Full Participation)

Act, 1995 and the Right of Children to Free and Compulsory Education Act (or the Right to

Education Act), 2009 have also been enacted to ameliorate the marginalised sections of the

society. The Indian judiciary has broadly interpreted the scope of the fundamental rights to

best further the objectives of human rights. It has relied upon various international norms and

principles in order to recognise and enforce various rights. Human rights in India, thus, has

greatly benefited from international law.

B. Environmental Law and Jurisprudence

The steep rise in global temperature and the growing realisation that natural resources

living and nonliving are finite created a global concern for the protection and conservation

of environment. To address this concern, the world met at Stockholm in 1972 in what has

come to be known as the First Earth Summit. India was an active participant at this

Conference and since then is committed to the cause of environmental conservation. At the

same time, she is also the champion of the developmental aspirations of the developing

nations.

C. Trade Law

International trade is the cross-border exchanges between subjects of international trade law.

In order to institutionalise international trade regulations, International Trade Organisation

(ITO) was sought to be established. But the ITO could not materialise due to wide differences
among nations. As a stop-gap arrangement General Agreement on Trade and Tariffs (GATT)

was signed. The GATT did not include trade in services. Later, after prolonged discussions in

the Uruguay Rounds of negotiations the GATT system was replaced by the World Trade

Organisation (WTO), which included two important aspects of trade the General

Agreement on Trade in Services (GATS) and the Trade Related aspects of Intellectual

Property Rights (TRIPS). India is a founding-member of the WTO. The unique feature of

WTO is that the States could not make any reservations to the provisions of the WTO. The

WTO regulations have to be accepted unconditionally and in full. WTO also has stringent

enforcement mechanism. WTO today has 153 member States. The growing important of

international trade and the strong WTO system ensures that States implement their

international trade law obligations. India has implemented its obligations under the WTO,

which include regulation of tariff and taxes, anti-dumping and intellectual property rights. A

wide variety of laws and amendments were brought in subsequent the establishment of WTO.

The major acts are the Foreign Trade (Development and Regulation) Act, 1992, the Special

Economic Zones Act, 2005, the Special Economic Zones Rules, 2006, the Agriculture and

Processed Food Products Export Development Authority Act, 1985, the Marine Products

Export Development Authority Act, 1972, the Competition Act, 2002, and the range of

amendments to the Tea Act 1953, the Coffee Act, 1942, the Rubber Act, 1947 and IPR laws

in India and the opening of the Indian service sectors to foreign players.

D. Intellectual Property Rights

The intellectual property rights (IPR) system in India is based on the developments in

international law. India is a member of the World Intellectual Property Organisation (WIPO),

and party to the World Trade Organisation (WTO) managed Agreement on Trade Related
Aspects of Intellectual Property Rights (TRIPS Agreement). Therefore, India has brought its

domestic law in harmony with the international IPR regime. The legislations in this regard

include the Patent Act, 1970, the Copyright Act, 1957, the Trade Marks Act, 1999, the

Geographical Indications of Goods (Registration and Protection) Act, 1999, and the Design

Act, 2000.

E. Alternative Dispute Resolution

India enacted the Arbitration and Conciliation Act, 1996 in order to bring uniform rules

regarding settling commercial disputes based on the Model Law on International Commercial

Arbitration, 1985 and the Conciliation Rules, 1980 adopted by the United Nations

Commission on International Trade Law. Amendments to the Code of Civil Procedure, 1908

were also made.

F. Space Law

The launch of Sputnik 1 by the erstwhile USSR (Soviet Union) on 4th October, 1957 marked

the beginning of the space era and since then this field has seen tremendous progress. Law

responded to this revolution" immediately. In 1959 the United Nations Committee on

Peaceful Uses of Outer Space (UNCOPUOS) was established in order to create a specialised

agency for dealing with peaceful use of outer space and promote international co-operation.

UNCOPUOS has two standing subcommittees: the Scientific and Technical Subcommittee

and the Legal Subcommittee.

India has played a pioneering role in the development of international space law. India is one

of the founder-members of the UNCOPUOS. It has participated in all conference on space

law and has been an active participant. India is also a leader in space technology and this

gives great weight to her contribution to law-making.

G. Cyber Law

Cyber law in is India governed by the Information Technology Act, 2000. This legislation

was enacted subsequent to the UNCITRAL Model Law on Electronic Commerce (E-

Commerce). The various legislations passed in this regards include the Information

Technology Act, 2000 and amendments to Evidence Act, 1872.

 CONCLUSION

Indian constitution embodies the basic framework for the implementation of international

treaty obligations undertaken by India under its domestic legal system. According to this, the

Government of India has exclusive power to conclude and implement international treaties or

agreements. The President of India is vested with the executive power of the Government of

India and thus is empowered to enter into and ratify international treaties. This does not mean

that international law, ipso facto, is enforceable upon ratification. This is because Indian

constitution follows the dualistic theory with respect to incorporation of international law

into municipal law. International treaties do not automatically become part of national law in

India. They must be incorporated into the legal system by an act of Parliament, which has the

legislative powers to enact laws to implement Indias obligations under the international

treaty.

Thus, in absence of specific domestic legislation enacted by the Parliament, the Indias

international obligations are not justiciable in Indian Courts. However, a perusal of the

jurisprudence shows that a pro-active role is being played by Indian judiciary in

implementing Indias international obligations under International treaties, especially in the

field of human rights and environmental law. Thus, Indian judiciary through judicial

activism fills up of the gaps in the municipal law of India and International law, thereby

playing an important role in the implementation of international law in India.

 REFERENCES

Basu, D.D., Introduction to the Constitution of India, 20th Edn (Nagpur: Wadhwa
Sales Corporation 2008).
The Vienna Convention on the Law of Treaties United Nations, 1969, UN Treaty
Series, vol. 1155, p. 331
https://www.legalindia.com
http://www.manupatrafast.com

CASES

Additional District Magistrate, Jabalpur v. Shivakant Shukla, AIR 1976 SC 1207

Jolly George Varghese and Another v. The Bank of Cochin, AIR 1980 SC 470
Kesavananda Bharathi vs. State of Kerala, (1973) Supp. SCR 1
Vellore Citizens Welfare Forum v. Union of India and Others, AIR 1996 SC 2715
Visakha v. State of Rajasthan, AIR 1997 SC 3011