Ashwin Jha
[Link].B Vth Semester
International Law
Topic: Application of International Law by Indian Courts
Submitted to : Dr. Owais Farooqui
Application of International law by the Indian Court
Central governments enjoy the power to implement international conventions: List I (Union List)
in the 7th schedule defines the ambit of the Central government to make laws on various subjects
of national importance. With regard to foreign affairs entries 13 and 14 of the list (stated below
as 1 and 2 respectively) make it amply clear that the power to implement international treaties
rests with the parliament. “Participation in international conferences, associations and other
bodies and implementing the decisions made thereat” “Entering into treaties and agreements with
foreign countries and implementing of treaties, agreements and conventions with foreign
countries.” 8 The powers of the Union Executive are derived from that of the Union Legislature
and are vested, as per article 53, in the President of India. Article 73 of the Constitution confers
upon the executive powers over which the Parliament has the power to legislate. As stated in
entry 14 of the Union list, the Central government, represented by the Executive, may enter into
various treaties with other countries. However, this does not imply that upon entering into
international treaties, the international principles and norms enunciated in them become
enforceable in India. This is because of the Dualist doctrine followed by the Indian constitution.
International principles must be incorporated in the Indian legal system by a legislation enacted
by the Parliament which can be inferred by reading entry 14 in the Union list. Besides, article
253 of the Constitution which reads as the “Parliament has the 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” entrusts the power to enact legislation for even the states as and when
required with regard to international law. Not only is this power of implementation, enjoyed by
the legislature stated in the Union List but the same has been upheld by the Supreme Court in
Jolly George Vs. Bank of Cochin and Gramophone Company of India Ltd. v. Birendra Bahadur
Pandey. Further, in the former case India has been recognized as a follower of the Dualist
approach for incorporation of international laws. In Jolly George Varghese and other v. The
Bank of Cochin, AIR 1980 SC 470 the question before the Court was whether it was justified to
subject debtors to imprisonment so as to force them to execute their contractual obligations.
Addressing the question Krishna Iyer, J, interpreted 51 (Proviso) and Order 21, Rule 37, Civil
Procedure Code in a way that it was reconciled with Article 11 of the ICCPR but nevertheless
held that municipal laws could not be ignored even though they were in conflict with
international conventions.
ROLE OF JUDICIARY
The question which looms large is what will be the stance of the Supreme Court when
international law contradicts domestic law? The answer to the above question is to be found in
the decision given by the Court in Gramaphone Co. of India Ltd. v. Birendra Bahadur Pandey
and Ors. Wherein it upheld 9 that national law shall prevail over international law in case there is
a conflict between the two. This decision has cast doubts over the administration of justice in a
country. Is the judiciary justified in adhering inflexibly to domestic law when international law
opposes that policy? In such cases it is essential for the judiciary to examine the spirit of law and
deliver judgements in keeping with the principles of Justice, Equality and Good Conscience.
This shall be practiced even if the domestic law has to be modified (by way of being given a new
interpretation) to suit international legal standards if that is the only way to meet the ends of
justice. The judiciary has also at some instances interpreted laws to make them in agreement with
international principles. In Githa Hariharan V. Reserve Bank of India, the constitutionality of
sec. 6(a) of the Hindu minority and Guardianship Act, 1956 was challenged. This section
demoted the mother to an inferior position in regard to the guardianship of a minor only on the
grounds of sex. The Court in upholding the Convention on the Elimination of all forms of
Discrimination Against Women, 1979 and the Beijing Declaration directed the states to take
measures to prevent any such discrimination practice and further went on to state that “the
interpretation that we have placed on Section 6(a) of the HMG Act gives effect to the principles
contained in these instruments. The domestic courts are under an obligation to give due regard to
International Conventions and Norms for constructing domestic laws when there is no
inconsistency between them.” The Indian judiciary has brought about a perfect harmony between
the two legal systems that has helped the domestic laws evolve and grow to address the needs of
a society that’s developing even faster than the march of time.
Conclusion
In India dualism prevail over the monism as the municipal law prevails over the international law
as it has been described above. Therefore, it is concluded that the India supports the Dualism.
"International law as such can confer no rights cognizable in the municipal courts. It is only
insofar as the rules of international law are recognized as included in the rules of municipal law
that they are allowed in municipal courts to give rise to rights and obligations". The supremacy
of international law is a rule in dualist systems as it is in monist systems. Sir Hersch Lauterbach
pointed out the Court's determination to discourage the evasion of international obligations, and
its repeated affirmation of: the self-evident principle of international law that a State cannot
invoke its municipal law as the reason for the nonfulfillment of its international obligations. If
international law is not directly applicable, as is the case in monist systems, then it must be
translated into national law, and existing national law that contradicts international law must be
"translated away". It must be modified or eliminated in order to conform to international law.
Again, from a human rights point of view, if a human rights treaty is accepted for purely political
reasons, and states do not intend to fully translate it into national law or to take a monist view on
international law, then the implementation of the treaty is very uncertain.
