Abstract

Different countries follow different Schools for Application of International Law, while some follow the Monistic approach by which judiciary can apply the International Treaties itself, which make them self-executing treaties. India follows the Dualistic School under which the International Treaties doesn’t automatically become part of the legal system even after being ratified by the executive head of the country. Rather they need to be incorporated in the legal system by enactment of an act in the legislation by the Parliament wherever it is necessary only then it can be applied by the Indian courts. Although Indian Judiciary is not empowered by the constitution to make legislations still it has huge hands to interpret Indian obligations under the International Law into Municipal Law of the Land by pronouncing it in its decisions whenever issues concerning the International Law arise in any case. A pro-active role is played by India Judiciary in implementation of International Law in India and especially when the matters are related to environment or about the Human Rights of the people. This paper with the help of constitutional provisions followed in India examines its practices in relation of International Law and Customary law with the role of judiciary.

• 1.   The Constitution of India, 1950
• 2.   Charles worth, Hilary and others, eds., The Fluid State: International Law and National Legal Systems (Sydney, Australia: The Federation Press, 2005)
• 3.   National Commission to Review the Working of the Constitution, A Consultation Paper on Treaty-Making Power under Our Constitution (2001) Rao, B. Shiva, The Framing of India’s Constitution, Select Documents (1967
• 4.   Rao, P. Chandrasekhara, The Indian Constitution and International Law (New Delhi: Taxmann, 1993)
• 5.   The Vienna Convention on the Law of Treaties United Nations, 1969, UN Treaty Series, vol. 1155, p. 331
• 6.   Malanczuk, Peter, Akehurst’s Modern Introduction to International Law, 7th Revised Edition, (New York: Rout ledge, 1997).
• 7.   Anand, R. P. Confrontation or Cooperation: International Law and the Developing Countries (1987)
• 8.   Agarwal, Dr. H.O., International Law & Human Rights, 20th Edn. (Allahabad: Central Law Publication, 2014).
• 9.   Shaw, N.Malcolm, International Law, 7th Edn. (CAMBRIDGE) Ch 4 International law and Municipal law.
• 10.   S. K. Agarwal, “IMPLEMENTATION OF INTERNATIONAL LAW IN INDIA: ROLE OF JUDICIARY”, oppenheimer.mcgill.ca/IMG/pdf/ SK_Agarwal.pdf
• 11.   Halashetti, Jagadish S., “The Status of International Law under the Constitution of India”, https:// www.legalindia.com/the-status-of-internationallaw-under-the-constitution-of-india/
• 12.   The principle of sovereign equality as embodied in the UN Charter is the cornerstone of the international relations between the States. See Articles 2(1) and 2(2) of the UN Charter; see also R. P. Anand, “Sovereignty of States in International Law” in: R.P. Anand, Confrontation or Cooperation: International Law and the Developing Countries (1987)
• 13.   Narendra Kodoliya, “A Paradigm Shift in the Role of Domestic Courts in Implementing International Treaty Provisions: An Indian Perspective”
• 14.   Jolly Jeorge Vs. Bank of Cochin, AIR 1980 SC 470
• 15.   S. K. Agarwal, “Implementation of International Law in India: Role of Judiciary”
• 16.   AIR 1980 SC 470
• 17.   AIR 1984 SC 667
• 18.   AIR 1997 SC 3011
• 19.   AIR 1966 SC 230 3
• 20.   See S. K. Agarwal, “Implementation of International Law in India: Role of Judiciary”
• 21.   See Hilary Charlesworth and others, eds., The Fluid State: International Law and National Legal Systems (Sydney, Australia: The Federation Press, 2005)
• 22.   The Vienna Convention on the Law of Treaties defines the term
• 23.   Westlake has rightly stated that the word Municipal law for the national or State law should be avoided, because municipalities within a state have their own subordinate laws to which the name municipal law is appropriate.(Westlake, International law, Part 1(1910) p. 6.) It seems that the name municipal law has been employed for the State law for want of a better term.
• 24.   S. K. Agarwal, “Implementation of International Law in India: Role of Judiciary”
• 25.   R. v. Bow Street Metropolitan Stipendiary Magistrate ex parte Pinochet, (No. 3) 1997, 2 All E.R. 97
• 26.   Malcolm N. Shaw, International Law (Seventh Edition), Ch 4 International law and Municipal law, p 93.
• 27.   H. Triepel, Volkerrecht und Landesrecht, Berlin, 1899.
• 28.   K. Strupp, “Les Regles Generales du Droit International de la Paix”, 47 HR, 1934, p 38, See also D. Anzillotti, Corse di Diritto internazionale, 3rd Edn. Rome, 1928, Vol. I, pp, 43 ff
• 29.   Malcolm N. Shaw, International Law (Seventh Edition), Ch 4 International law and Municipal law, p 93.
• 30.   Antonio Cassese, Modern Constitutions and International Law, 192, Rec. des COURS 331 (1985-ffl), p. 331
• 31.   The Supreme Court of India has interpreted the constitutional provisions on the executive power in Samsher Singh v. State of Punjab, AIR 1974 SC 2192, by adopting the “residuary test” in defining the executive power. According to this, the executive power of the state is what remains after the legislative and judicial powers are separated and removed. The court went on to add that the real executive power is vested in the Prime Minister and his Council of Ministers and that the President has to act only on the advice tendered by the Council of Ministers.
• 32.   Article 73 and 162 of the Indian Constitution
• 33.   Extent of executive power 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 power 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 on 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) Until otherwise provided by Parliament, a State and any officer or authority of a State may, notwithstanding anything in this article, continue to exercise in matters with respect to which Parliament has power to make laws for that State such executive power or functions as the State or officer or authority thereof could exercise immediately before the commencement of this Constitution.
• 34.   Subject-matter of the legislative competence of the Parliament has been enumerated in Article 256 read with List I and List III of the Seventh Schedule. See D.D. Basu, Introduction to the Constitution of India, 20th Edn. (Nagpur: Wadhwa Sales Corporation 2008)
• 35.   Jolly Jeorge Vs. Bank of Cochin AIR 1980 SC 470
• 36.   Jolly Jeorge Vs. Bank of Cochin AIR 1980 SC 470; Gramophone Company of India Ltd. v. Birendra Bahadur Pandey AIR 1984 SC 667
• 37.   Article 253 states that “Notwithstanding anything in the foregoing provisions of this chapter, 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.” 38. AIR 1969 SC 783 at para 25
• 39.   “The effect of Art 253 is that if a treaty, agreement or convention with a foreign state deals with a subject with in the competence of state legislation, the parliament alone has notwithstanding Article 246 (3) the power to make laws to implement the treaty, agreement or convention or any decision made at any international conference, association or other body.”
• 40.   AIR 2005 SC 1644 at para 4
• 41.   “A treaty entered in to by India cannot become law of the land and it cannot be implemented unless parliament passes a law as required under Article 253. The executive in India can enter into any treaty be it bilateral or multilateral with any other country or countries”.
• 42.   The state shall Endeavour to- (c) foster respect for international law and treaty obligations in the dealings of organized peoples with one another;
• 43.   “The state shall promote international peace and security by the prescription of open, just and honorable relations between nations, by the firm establishment of the understandings of International Law as the actual rule of conduct among governments and by the maintenance of justice and scrupulous respect for treaty obligations in the dealings of organized people with one another”.
• 44.   Subhash C. Kashyap, The constitution of India and International Law’, Bimal N. Patel (ed.), ‘India and International Law’, Martinus Nijhoft Publishers, Leiden 2005, p.19.
• 45.   See Re Berubari Union and Exchange of Enclaves, AIR 1960 SC 845; Ali Akbar v. U.A.R. AIR 1966 SC 230; Magnabhai v. Union of India, AIR 1969 SC 783; Gramaphone Co. Birendra, AIR 1984 SC 667; Jolly George Verghese V. Bank of Cochin, AIR 1980 SC 470; UPSE Board v. Hari Shankar, AIR 1979 SC 65; Prem Shankar Shukla v. Delhi Adm., AIR 1980 SC 1535; Vishaka v. State of Rajasthan, AIR 1997 SC 3011.
• 46.   AIR 1973 SC 1461
• 47.   “In view of Article 51 of the constitution this court must interpret language of the Constitution, if not intractable, which is after all a municipal law, in the light of United Nations Charter and the solemn declaration subscribed to by India”
• 48.   Provisions in regard to the judiciary in India are contained in Part V (
• 49.   Ibid
• 50.   See D.D. Basu, Introduction to the Constitution of India, 20th Edn (Nagpur: Wadhwa Sales Corporation 2008), n 14
• 51.   P.N. Krishanlal v Govt. of Kerala, (1995) Sup. (2) SCC 187; Law Commission of India, “A continuum on the General Clauses Act, 1897 with special reference to the admissibility and codification of external aids to interpretation of statutes,” 183rd Report, November, 2002, p. 20
• 52.   AIR 1997 SC 3011
• 53.   “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.”
• 54.   See S.P. Sathe, “Judicial Activism: The Indian experience,” Washington University Journal of Law and Policy, vol. 29, no. 6, 2001.
• 55.   (1973) Supp. SCR 1
• 56.   AIR 1997 SC 3011
• 57.   AIR 1976 SC 1207
• 58.   AIR 1980 SC 470
• 59.   AIR 1984, SC 667
• 60.   AIR 1983 Kar 85
• 61.   “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.” .
• 62.   ‘The position before English courts is something of a compromise between the two methods. There can be no doubt that they regard customary international law as part of the law of the land for they take “judicial notice” of it; that is to say they assume that the court knows the law and does require it to be proved by calling expert evidence, as in cases involving foreign and external systems of law. The court regards any relevant rule of customary international law as being incorporated in to the domestic law’.
• 63.   AIR 1997 SC 568
• 64.   1999 SCC 712
• 65.   Canada Ltee (Spraytech, Socie’te’ d’arrosage) v. Hudson (2001) 2 SCR 241 at para 32, per L’Heureaux-Dube J