HIDAYATULLAH NATIONAL LAW UNIVERSITY

The Constitutional Power To Interpret International Law: An

Indian Perspective
SUBMITTED TO

Mr. Mohd. Atif Khan

(Faculty, Public Internatinal Law)

SUBMITTED BY

Sakshi Dhruw

SEMESTER- IV

SECTION-A

Roll No.-136

ID. No.-1520151297

Date Of Submission-15.02.2017
 I

Declaration

I, Sakshi Dhruw , hereby declare that, the project work entitled, The Constitutional Power To
Interpret International Law: An Indian Perspective submitted to H.N.L.U., Raipur is record of an
original work done by me with the help of such authorities which I have mention in bibliography
and under the able guidance of Mr. Md. Atif Khan Faculty, Hidayatullah National Law
University, New Raipur.

Sakshi Dhruw

Semester – IV

Section -A

Roll No.-136
 II

Acknowledgements

I feel highly elated to work on the topic ‘The Constitutional Power To Interpret International
Law: An Indian Perspective’.

The practical realization of this project has obligated the assistance of many persons. I express
my deepest regard and gratitude for Mr. Md. Atif Khan, Faculty of Public International Law.
Her consistent supervision, constant inspiration and invaluable guidance have been of immense
help in understanding and carrying out the nuances of the project report.

I would like to thank my family and friends without whose support and encouragement, this
project would not have been a reality.

I take this opportunity to also thank the University and the Vice Chancellor for providing
extensive database resources in the Library and through Internet.

Some printing errors might have crept in, which are deeply regretted. I would be grateful to
receive comments and suggestions to further improve this project report.

Sakshi Dhruw

Semester- IV

Section-A

Roll No.-136
 III

Table of Contents
1. Declaration_____________________________________________________________I
2. Acknowledgements______________________________________________________II
3. Table of Contents_______________________________________________________III
4. Abstract_______________________________________________________________IV
5. Introduction____________________________________________________________1
6. Executive Powers To Interpret International Laws______________________________3
7. Legislative Powers To Interpret International Laws_____________________________6
8. Judicial Powers To Interpret International Laws_______________________________10
9. Scope And Justiciability Of Directive Principle With Regard To International Laws__17
10. Duty To Interpret International And Municipal Laws Harmoniously_______________20
11. Conclusion____________________________________________________________22
12. Bibliography________________________________________________________23-24
 IV

Abstract
Research Objective

The first objective of this project is to look briefly at the nature of international law and
municipal and about the two schools of law that is monist and dualist. The second objective is to
examines the power of different branches to analyze and interpret the international laws as given
by the various provision of Constitution of India . The third objective is to see the scope and
justiciabilty of this provision with references to directive principles and fourthly, to examine the
duty to interpret both laws harmoniously.

Research Methodology

This project is doctrinal in approach. It analysis the various provisions given in the Constitution
of India which deals with the Imternational Law.

Sources of Data

The sources of collection of data is secondary data. This secondary data has been obtained from
published sources such as web sources,articles and other references as guided by the faculty of
Public International Law were primarily helpful and of atmost importance in the successful
completion of the project.

Hypothesis

The alternative idea about the topic is that there are various provision given in the Constitution of
India which provide power to interpret international law. And in the case conflict between
municipal law and international law ,municipal law will hold supremacy over international law
but after interpretating the international law, the international law can be enforceable in the
state.
 v

Research Questions

1. What are the executive powers to interpret international laws ?

2. What are the legislative powers to interpret international laws ?
3. What are the judicial powers to interpret international laws ?
4. What is the scope and justiciability of directive principle with regard to international
laws?
5. What is Duty To Interpret International And Municipal Laws Harmoniously ?

Chapterization

The focus of the Objectives of The Constitutional Power To Interpret International Law: An
Indian Perspective is on the following topics:-

1. Executive Powers To Interpret International Laws.

2. Legislative Powers To Interpret International Laws.
3. Judicial Powers To Interpret International Laws.
4. Scope And Justiciability Of Directive Principle With Regard To International Laws.
5. Duty To Interpret International And Municipal Laws Harmoniously.

Mode of Citation

The Bluebook: A Uniform System of Citation, (19th Edn.) has been followed in this Project.

Scope and Limitation

The Scope of this Project is limited to the various provision given in the Constitution of India to
interpret the international laws.
 1

Introduction
Law of Nations or International Law is the name for the body of customary and treaty rules
which are considered legally binding by the States in their intercourse with each
other.1International Law consists of the rules and principles of general application dealing with
the conduct of States and of international organizationsin their international relations with one
another and with private individuals, minority groups and transnational companies. It may be
described as ‘the sum of the rules accepted by civilised States as determined by their conduct
towards each other, and towards each other subjects.’2

Municipal law refers to the internal law of a sovereign state. Municipal law includes state,
provincial, territorial, regional, or local law of a state. Municipal law is the national, domestic, or
internal law of a sovereign state defined in opposition to international law. While, as far as the
law of the state is concerned, these may be distinct categories of law, international law is largely
uninterested in this distinction and treats them all as one. Similarly, international law makes no
distinction between the ordinary law of the state and its constitutional law.

The question of the extent to which as a matter of municipal law the organs of the state – i.e
courts and other agencies administering law- apply international law is clearly the question of
Municipal Law. The application of international law in municipal court depends upon the
Constitution of the State. Public international law leaves each country to decide on the
relationship between international law and municipal law. In some countries international law
automatically becomes part of municipal law whereas in some countries they specifically adopts
international law and this depend upon the school of law followed by the state.

International law requires States who have ratified international treaties to carry out their
international obligations in accordance with the provisions of the treaties. However, it does not
govern the process of incorporating international law into municipal laws. Different States

1
Brierly’s definition of International Law/ Oppenheim, International Law, edtied by Sir Robert Jennijs and Arthur
Watts, Pearson Education, Singapore, Vol. 1 (1905) pp 1-2
2
Pitt Cobbett definition of International law
 2
follow different processes of incorporating international law into their domestic legal systems,
depending on their constitutional provisions in this respect. Thus, the process of implementation
of international law at national level varies in different States. The divergent practices pertaining
to incorporation of international law into municipal law have been explained by two schools of
law-
Dualist school - Dualists see International Law and Municipal Law as distinct and separate –
arising from different sources, governing different areas and relationships, and different in
substance. According to Dualists, international law is inferior to and weaker than, domestic law.
If international law ever becomes part of domestic law, that can only be because domestic law,
has chosen to incorporate it.

Monist School - Monists on the other hand contend that there is only one system of law, of
which international and domestic laws are no more than two aspects. They justify this by
claiming that both of them govern sets of individuals (States being seen for this as collection of
individuals) both are binding, and both are manifestations of a single concept of law. Hence
international law is superior and stronger, as it represents the system’s highest rules –
jurisdiction on a domestic level being only delegated to states, which cannot avoid being bound
to apply international law at the domestic level. So, if domestic law anywhere conflicts with
international law that is the State’s fault, and will not excuse the State’s obligations.3

India follows the dualist theory for the implementation of international law at domestic level.4
Also,Professor Oppenheim maintained, without support in theory or practice, that "International
law and municipal law are in fact two totally and essentially different bodies of law which have
nothing in common, except that they are both branches-but separate branches--of the tree of
law." 5

3
S.B. Sinha J., “A Contexualised Look at the Application of International Law – the Indian Approach”, AIR Jour,
2004, p.33. M. Sivaraman, “Role of Indian Judiciary in Harmonising Municipal Law with International Law’, AIR,
Jour., 2003, at 211-12.

4
Jolly George Varghese and Anr v The Bank of Cochin (AIR 1980 SC 470)
5
Oppenheim, Introduction To Piccotto, The Relation Of International Law To The Law Of England (1915) 10.
 3

CHAPTER 1:- EXECUTIVE POWERS TO INTERPRET INTERNATIONAL LAWS

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.6

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.7

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.8

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

6
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.

7
Article 73 and 162 of the Indian Constitution.
8
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).
 4
(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.”

As mentioned above, there is no law in India that restricts the exercise of powers by the
Government of India under Article 73. This enables to executive to incur any kind of treaty
obligations. The legal status of such international obligations in respect of the Constitution can
be analysed by a study of various judgments of the Supreme Court.This peculiar situation arises
due to the lack of clear provisions as to the status of international treaties in the Constitution, that
is, regarding adoption of international law into Indian law. Article 51 obligates respect for
international treaties. Article 253 confers powers on the Parliament to make laws to implement
international agreements. Here we have to draw a distinction between formation of treaty and
adoption of that into domestic legal system. Making laws is the exclusive domain of the
legislature. Therefore, generally, ratification (approval) by the legislature is necessary to make
the treaty binding on the State. Whereas, the executive is the agency of the State, that can incur
legal obligations on the State’s behalf. But, as already explained, there are no fetters on the
executive’s power in respect of international law. Therefore, the Supreme Court held that
international law forms part of municipal law except when they are inconsistent with the
provisions of municipal law. To sum up, the current position in India is that approval of the
Parliament is required only for treaties that affect the rights of the citizens or which require a
new, or change in an existing, municipal law.

It is also important to note here that executive power has to be exercised in accordance with
Constitution and the laws. Article 253 confers power on Parliament to make any law for the
whole or any part of the country to give effect to any International Treaty, Agreement,
Convention or decision.
 5

Though signing and ratifying an international treaty is within the domain of the executive,
implementation of such treaty falls under the domain of Parliament as explicitly provided under
Article 253. Further it is to be remembered here that under Article 51, India commits itself to
make endeavour to ‘foster respect for international law and treaty obligations’. Thus under the
scheme of the Constitution, International Treaties can be legally enforceable in India only when
Parliament enacts an enabling legislation incorporating it under the domestic system. This stance
is also fortified by the fact that India continue to act under the influence of Common Law system
accepted during British rule and continued even after the coming in to force of the Constitution.9

Scope of Executive Powers.

The executive power of the Government of India extends to matters with regard to which
Parliament can make laws. The executive power of the Union extends also to the exercise of
such rights, authority and authority as exercisable by the Government of India by virtue of a
treaty or agreement (article 73(1) (b)) of the Indian Constitution). However, executive power of
government of India to enter into international treaties does not mean that international law, ipso
facto, is enforceable upon ratification.

However, executive power of government of India to enter into international treaties does not
mean that international law, ipso facto, is enforceable upon ratification. This is because Indian
constitution follows the “dualistic” doctrine with respect to international law.10Therefore,
international treaties do not automatically form part of national law. They must, where
appropriate, be incorporated into the legal system by a legislation made by the Parliament.11

9
Article 372 of Constitution of India 1950.
10
Jolly Jeorge Vs. Bank of Cochin ,AIR 1980 SC 470

11
Jolly Jeorge Vs. Bank of Cochin AIR 1980 SC 470; Gramophone Company of India Ltd. v. Birendra Bahadur
Pandey ,AIR 1984 SC 667
 6
CHAPTER 2:-LEGISLATIVE POWERS TO INTERPRET INTERNATIONAL LAWS

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.

Under Articles 245 and 246 the Parliament can make laws for the whole or any part of India
within its area of competence as defined and delimited under the distribution of legislative
powers between Union and the States vide the Seventh Schedule. Laws can’t be questioned on
the grounds of extra territorial operations (Art. 245). The Seventh Schedule to the Constitution
embodies three lists, viz. the Union List, State List and Concurrent List consisting of 97, 66 and
47 items, respectively. In the three fold distribution of legislative powers, residuary powers of
legislation have been left with Union (Article 248). In regard to the Union List, the Jurisdiction
of Parliament is exclusive. International relations, foreign affairs, International Organisations
and International Law matters generally have been specifically assigned by the Constitution to
the Jurisdiction of the Union Parliament.12

Thus in the Seventh Schedule, List-I (Union List), the following entries are included :

a) Foreign affairs; all matters which bring Union into relation with any foreign country (entry
10)

b) Diplomatic, Consular and trade representation (entry 11)

c) Union Nations Organisation (entry 12)

12
Subash C. Kashya
 7

d) Participation in International Conference, Associations and other bodies and implementing of

decisions made there at (entry 13)

e) Entering into treaties, agreements and conventions with Foreign Countries (entry 14)

f) War and Peace (entry 15)

g) Foreign jurisdiction (entry 16)

h) Citizenship, naturalization and aliens (entry 17)

i) Extradition

j) Admission into, and emigration and expulsion from India, passports and visas

k) Pilgrimages to places outside India (entry 20) and

l) Piracies and crimes committed on the high seas or in the air (entry 21)

Article 372: Continuance in force of existing laws and their adaptation –

“(1) Notwithstanding the repeal by this constitution of the enactments referred to in Article 395
but subject to the other provisions of this Constitution, all the laws in force in the territory of
India immediately before the commencement of this Constitution shall continue in force therein
in until altered or repealed or amended by a competent legislature or other competent authority.”

Article 372 continued all the pre-constitution ‘laws in force’ until altered, repealed or amended
except that all those laws that were repugnant to any provision of the Constitution were declared
to be void. The importance of this provision here lies in the fact that continuance of “laws in
 8

force” means continuance of the British Common Law also as that was applied by courts in India
in the pre-constitution period.13

What is important to note here is that the common law treats International custom as part of
municipal law unless it is inconsistent with municipal law in which case municipal law prevails
over international law.14 This is modified form of Blackstonian doctrine which treats
international law as part of municipal law without any limitation whatsoever. Further more
according to common law, international treaties, which effect private rights, require modification
of statute law and enabling Act of Parliament for their implementation. Those treaties which are
not inconsistent with municipal law are per se part of municipal law and do not need legislative
Act for their implementation.15 Thus ‘common law’ maintains that the rules of international
customary and treaty law, including Universal Declaration Of Human Rights (containing
customary norms of International Human Rights law) are part of municipal law, if they are not
inconsistent with municipal law.

In Civil Rights Vigilance Committee SLSRC College of Law v. Union of India and others16, the
Karnataka High Court observed that;

‘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 regard any relevant rule of customary international law as
being incorporated in to the domestic law.’

In People’s Union for Civil Liberties v. Union of India17, the Supreme Court observed that;

13
Builders Supply Corp. v. Union of India, AIR 1965 SC 106 cited in Subhash C. Kashyap, supra p.23 see also Gurudip
Singh, ‘Human Rights Covenants in India’ IJIL, at 222 see also Civil Rights Vigilance Committee S.L.S.R.C. College of
Law v. Union of India, AIR 1983 Kar. 85 at 89. In Re Amina AIR 1992 Bom 214
14
Chung Chi Cheung v. R. A.C. (1939), 160 at y 168 see also Gurdip Singh, ‘Status of Human Rights Covenants in
India’, IJIL, p216
15
The Zamora, A.C. 2 (1916) at 77
16
AIR 1983 Kar 85
 9

“It is almost an accepted proposition of law that the rules of customary international law which
are not contrary to the municipal law shall be deemed to be incorporated in the domestic law.”

In A.P. Pollution Control Board v. Prof. M.V.Nayadu18, the Supreme Court recognized and
applied the International Customary Rule of “precautionary principle”. The Indian Supreme
Court’s view about customary nature of “precautionary principle” was appreciated in a Canadian
case19.

Cession of Territory

The Supreme Court in its advisory opinion under Article 143 of the Constitution in the
“Berubari Case”20 said that where the implementation of an Indian Territory, it could not be done
even by passing a law under Article 3. A Constitution Amendment Act under Article 368 was
necessary. The court was of the opinion that Article 3 applied only to a federal redistribution of
territories to a foreign state.20 This opinion was followed in subsequent Supreme Court
judgments in Rama Kishore Sen and others v. Union of India21, Magnabhai Ishwaribai Patel v.
Union of India,22 and Union of India v. Sukumarson Gupta 23 cases.

17
AIR 1997 SC 568
18
1999 SCC 712
19
Canada Ltee v. Hudson (2001) 2 SCR 241 at para 32, per L’Heureaux-Dube J
20
In Re Berubari Union and Exchange of Enclaves, AIR 1960 SC 845
21
AIR 1966 SC 644
22
AIR 1969 SC 783
23
AIR 1990 SC 1962
 10

CHAPTER 3:- JUDICIAL POWER TO INTERPRET INTERNATIONAL LAWS

The primary aim of observance of international law lies with the state as they do observe
international laws in our municipal laws, but if they are not been observed, the court apply these
principles through the theory of implied adoption but those principles should not be inconsistent
with the constitution and the law enacted by the legislature. If there occurs a conflict between
international law and municipal law, the court shall always follow the municipal law. as referred
in the case of Gramophone co. of India Ltd v/s Birendra Bahadur Pandey 24 as Indian judiciary is
not empowered to make legislations but it interprets India's obligation in international law by
pronouncing decisions in municipal or local cases by concerning issues of international law. So
Indian judiciary has been playing a very active role in implementing India's international
obligations under international treaties.

In India, though the polity is dual, the judiciary is integrated.Therefore, India has an integrated
judicial system25.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.

An Indian Judiciary, just after the coming in to force of the Constitution of India confronted with
the issue of the Status of International Law under the provisions of the

24
AIR 1984 SC 667.
25
Provisions in regard to the judiciary in India are contained in Part V („The Union‟) under Chapter IV titled „The
Union Judiciary‟ and Part VI („The States‟) u nder Chapter VI titled „Subordinate Courts‟ respectively. See
D.D.Basu, Introduction to the Constitution of India , 20 th Edn (Nagpur: Wadhwa Sales Corporation 2008).
 11

Constitution. The Division Bench of the Rajasthan High Court in Birma v. State,26 while
considering the question as to whether a treaty between the British Government and The Princely

State of Dholapur, which was not given effect to by means of legislative enactment, could be
regarded as part of the then Dholapur State observed thus;

“……Treaties which are part of the international law do not form part of the law of the land
unless expressly made so by the legislative authority. In the present case the treaty remained a
treaty only and no action was taken to incorporate it in to a law. That treaty cannot therefore be
regarded as part of the Municipal Law of the then Dholapur State and the practice of
surrendering fugitive criminals, which was being followed by the former Dholapur State cannot
be deemed to be a law that could be continued under Article 372 of the Constitution of
India……”

It was indeed surprising that, though the Dholapur State was in practice of surrendering of
fugitive criminals under the treaty, such a practice constitute as custom under International Law
and under Common Law, the Court came to the conclusion that, it cannot be regarded as a law
by underestimating the effect of Article 372.

A far-reaching judgment of the Kerala High Court in Xavier v. Canara Bank Ltd.27, deserve to be
mentioned here. The Court was ceased of a million dollar question, which is the central point for
the present study. The issue was whether provisions of International Covenants/Treaties to which
India is a party become part of the corpus juris of India and as a result giving an aggrieved
individual a right to remedial action before the municipal court. The question arose on whether
Article 11 of the International Convention On Civil And Political Rights 1966, viz., that no one
shall be imprisoned merely on the ground of inability to fulfill a contractual obligation, has
become part of the Municipal Law of this Country consequently conferring right to remedial
action at the instance of an aggrieved individual of this Country. In dealing with this question,
the Court observed;

26
AIR 1951 Raj 127
27
1969 Ker L T 927
 12

“……The remedy for breaches of International Law in general is not be found in the law courts
of the State because International Law per se or proprio vigore has not the force or authority of
civil law, till under its inspirational impact actual legislation is undertaken. I agree that the
Declaration of Human Right merely sets a common standard of achievement for all peoples and
all nations but cannot create binding set of rules. Member States may seek, through appropriate
agencies, to initiate action when these basic rights are violated, but individual citizens cannot
complain about there breach in the municipal courts even if the country concerning has adopted
the covenants and ratified the Optional Protocol. The individual cannot come to court but may
complain to the Human Rights Committee, which in turn, will set in motion other procedures. In
short, the basic human rights, enshrined in the International Covenants above referred to may at
best inform judicial institutions and inspire legislative action within member –States but apart
from such deep reverence, remedial action at the instance of an aggrieved individual is beyond
the area of judicial authority…….”

The above observation of the Kerala High Court was quoted with approval by the Supreme Court
in Jolly George Verghese v. Bank of Cochin28. In this case the Court was ceased with similar
facts of the Xavier case. The Court was dealing with effect of international law and its
enforceability at the instance of individuals within the State (India), and enunciated the law on
the point thus;

“The positive commitment of the State parties ignites legislative action at home but does not
automatically make the covenant an enforceable part of the Corpus juris of India.”

The Karnataka High Court in Civil Rights Vigilance Committee S.L.S.R.C. College of Law,
Bangalore v. Union of India and others29, while dealing with the question of Power of Courts to
enforce International Treaty Obligations held that;

“…..the government of India’s obligations under Gleaneagles Accord and obligations attached
to its Membership of United Nations cannot be enforced at the instance of citizens by Courts in

28
AIR 1980 SC 470
29
AIR 1983 Kar 85
 13

India, unless such obligations are made part of the law of this country by means of appropriate
legislation’.

In Magnabhai Ishwarbhai Patel v. Union of India,30 the Constitution Bench of Supreme Court of
India observed that;

“ The effect of Art 253 is that if a treaty, agreement or convention with a foreign state deals with
a subject within the competence of state legislature, 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.”

Recently, yet again the Constitution Bench of the Supreme Court in State of West Bengal V.
Kesoram Industries ltd 31, observed that;

“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
in to any treaty be it bilateral or multilateral with any other country or countries”.

The single importance of putting Article 253 in the Constitution over and above the entries in
List I of the Seventh Schedule was to clarify beyond doubt that for implementation of an
international treaty, agreement or covenant or to give effect to a decision taken at an international
forum, the Union Parliament could make any law irrespective of some items in the State List
being attracted. Thus, the distribution of legislative powers between the Union and the States
under the Constitution cannot come in the way of international law obligations being
implemented through parliamentary law. The fact however is that the parliament has not so far
made any law on treaty making powers and until that is done, the power of the executive in the
matter of treaty-making shall remain unfettered.32

30
AIR 1969 SC 783 at para 25
31
AIR 2005 SC 1644 at para 4
 14

Article 260 : Jurisdiction of the Union in relation to territories outside India.

“The Government of India may by agreement with the Government of any territory not being
part of the territory of India undertake any executive, legislative or judicial functions vested in
the government of such territory, but every such agreement shall be subject to, and governed by,
any law relating to the exercise of foreign jurisdiction for the time being in force.”

Under Article 260 read with entry 16 of the Union List in the Seventh Schedule of the
Constitution, the Government of India may, by treaty or agreement with another country,
exercise some extra-territorial jurisdiction in the territory of that country and ‘undertake any
executive, legislative or judicial functions vested in the government of such territory”. Article
260 clarifies that every such agreement shall be subject to and governed by any law relating to
the exercise of foreign jurisdiction for the time being in force33.

Article 363 : Bar to interference by courts in disputes arising out of certain treaties
agreements etc. –

“Notwithstanding anything in this constitution but subject to the provisions of Article 143,
neither the Supreme Court nor any other court shall have jurisdiction in any dispute arising out of
any provision of treaty, agreement, covenant, engagement, sanad or other similar instrument
which was entered into or executed before the commencement of this constitution by any ruler of
an Indian State and to which the Government of the Dominion of India or any of its predecessor
Governments was a party and which has or has been continued in operation after such
commencement, or in any dispute in respect of any right accruing under or any liability or
obligation arising out of any of the provisions of this constitution relating to any such treaty,
agreement covenant, engagement, sanad or other similar instrument………..”

33
Ibid
Article 363 bars the jurisdiction of all courts including the Supreme Court in matters arising out
of “any provision of a treaty, agreement, covenant, engagement, sanad, or other similar
instrument” entered into by the Government of India with any princely Indian state. In the

15

Maharaja Pravin Chandra Bhunj Deo Kakatiya v. state of M.P 34., it was held by the Supreme
Court that any dispute arising out of the Merger Agreement, or the Instrument of Accession was
beyond the competence of the courts to enquire into.

It can be observed from above case that the court can apply international treaties to the
provisions of domestic law, if they are not in conflict with municipal law. In another case of
Neelabati Behera vs. State of Orissa 35 the hon’ble Supreme Court while granting compensation
for custodial death has laid down its backing on Article 9(5) on the conventions on civil and
political rights. In another case of Chairman Railway Board vs. Chandrima Das36 , the hon’ble
supreme court while expanding the scope of article 21 of the constitution by providing protection
to foreign rape victim and referred to the international convention and declaration of human
rights. In another case the court has asserted that the application of Universal Declaration of
Human Rights , and principles there of may have to be read, if need be, into the domestic
jurisprudence.

JURISPRUDENCE

Relying upon the Article 51, Sikri, C.J. in Kesavananda Bharathi vs. State of Kerala37,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

34
AIR 1961 SC 775
35 1993 SCC (2) 746

36
2000 (1) SCR 480
37
(1973) 4 SCC 225
Court in Visakha v. State of Rajasthan38 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
16
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.”
In Jolly George Varghese and Another v. The Bank of Cochin ,39the 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)1996with 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.

In Additional District Magistrate, Jabalpur v. Shivakant Shukla ,40the Supreme Court amplified
the scope of Article 21 (right to life) of the Indian constitution by referring to Articles 862 and
963 of the Universal Declaration of Human Rights (UDHR).

The Court in Vellore Citizens Welfare Forum v. Union of India and Others 41, 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

38
AIR 1997 SC 3011
39
AIR 1980 SC 470
40
AIR 1976 SC 1207
41
AIR 1996 SC 2715
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
India‟s international obligations.

17
CHAPTER 4:- THE SCOPE AND JUSTICIABILITY OF DIRECTIVE PRINCIPLES

Jurists have not been precise in the praise of Directive Principles of State Policy, including
Article 51 of the Constitution. They are carried away by the Preamble, as it were, to these
Directive Principles contained in Article 37 which, as already pointed out, declares that these
Directive Principles are not enforceable by any court, but are nevertheless fundamental to the
governance of the country. It is the duty of the State to apply these principles in making laws.

Article 51 as well as the other Articles of the Directive Principles was therefore considered by
well-known writers to be of no potency and that they were only mere platitudes. They did not
reckon with the pro-activism of the Indian judiciary.

Prof. Wheare, in his thesis “India’s New Constitution analyzed” said -

“As these principles cannot be enforced in any court, they amount to a little more than a
manifesto of aims and aspirations.”

Sir Ivor Jennings, , about the Directive Principles, said42:-

“They can be used for the purpose of political and private criticism but they confer no legal
rights and create no legal remedy ...... it all reads like, and is, a political manifesto.”

History has however proved that they were completely wrong. The Indian Supreme Court was
prepared to inject Directive Principles, wherever the State failed in its duty in implementing
them, into its concept of the right of life and liberty enshrined in Article 21 of the Constitution.
They declared that, based on the conventions, they would read life into the Fundamental Rights

42
in an article in the Hindu published in 1948
in Part III of the Constitution. They connect these rights to make them fall in line with the
international conventions. Finally, in “Unnikrishnan v. state of Andhra Pradesh”43 the Directive
Principle, which was otherwise not enforceable, was elevated by judicial declaration to the status
of a fundamental right. But what is remarkable is the metamorphosis which Article 21 underwent
at the hands of the Judges of the Supreme Court of India. Article 21 merely said that no person

19

shall be deprived of his right to life or liberty, other than by the procedure established by law.
The Supreme Court declared, in a series of judgments, that the right to life was not a right to a
mere animal existence but a right to live with human dignity, with all the faculties of the person
intact and with a roof over one’s head and the right to a livelihood. It will, therefore, be seen that
notwithstanding the pessimism of eminent foreign writers, the Supreme Court of India has
utilized Article 51(c), which merely required the State to foster respect for international law and
treaty obligations, for the purpose of protecting human rights and bringing about a social order
which did away with inequality and extended justice to the extent of the powers of the Supreme
Court.

It would not be correct to say that this Article was an innovation of the Indian mind, based on the
traditions of the Indian people from the time immemorial for peace and amity between
communities, people and nations. On the other hand, we have adopted the concept of Directive
Principles of State policy from the Irish Constitution, and especially the first three clauses of the
said Article. It is the fourth clause which requires the encouragement of settlement of
international disputes by arbitration that was engrafted during the debates in the Parliament.

However, it is submitted that “the court should be circumspect in any kind of “legislative
function” only in case of a “clear necessity” and when the reason for it is found in the four
corners of the statute itself.”

43
1993 SCR (1) 594
 20

CHAPTER 5:-DUTY TO INTERPRET INTERNATIONAL LAW AND MUNICIPAL

LAW HARMONIOUSLY

It was Lord Denning who stated that it is the duty of courts to construe legislation so as to be in
conformity with International Law and not conflict with it. The Calcutta High Court has
supported this proposition in Shri “Krishna Sharma v. State of Bengal”.44

In “A.D.M. Jabalpur v. Shivakant Shukla “45, Khanna, J., in his minority judgement held that,
while dealing with the provision of the Constitution, the court should adopt such a construction
as would, if possible not bring it in conflict with the provisions of international law.

In “Kubic Dariusz v. Union of India”46, the Supreme Court held that, “it is generally a well
recognized principle in national legal system that in event of doubt the national rule is to be
interpreted in accordance with the state’s international obligations. There is need for
harmonization whenever possible bearing in mind the spirit of the covenants.” One problem over
here is with the later part as there may be many commonalities between rights guaranteed by
these international instruments and the Indian constitution, but nevertheless it is inappropriate to
generalize that the fundamental rights under the constitution correspond to the international
instruments as at time it may make serious inroads into the sovereignty of a country.

44
AIR 1954 Cal 591
45
1976 SCR 172
46
1990 SCR (1) 98
In “Mackinnon Mackenzie v. Audrey D’ Cousta”47, the supreme court considered the fact that
India was a party to the International Convention concerning Equal Remuneration for Men and
Women for work of Equal Value, and adopted a principle adopted therein to construe a law
enacted by the Parliament, namely, the Equal Protection Act, 1976 to grant relief to the petitioner
by holding that the action of the employer to be unconstitutional violation of the principle of
equal pay for equal work.

21

Therefore the courts should be inclined towards a harmonious interpretation of international

conventional law (treaties, conventions etc) with municipal law. But an important question arises
“in medias res” that International conventional do not operate “in vacuo” and hence if it is to
operate through Domestic Law, then there are bound to be conflicts between the same at times.
An answer to this question has been provided by the Supreme Court when it lays down that
“When there is a clear conflict between the law of India and a treaty... It is the national law that
will prevail.”48

It is submitted from a reading of these cases given above that there is a presumption in favour of
harmony between national legislation and international treaty provisions. However, in case of
ambiguity the court will look at the treaty, if necessary all of it. It will do so even if the
legislation does not mention the treaty.49

47
1987 SCR (2) 659
48
A Paradigm Shift In The Role Of Domestic Courts In Implementing International Treaty Provisions: An Indian
Perspective.
49
Ibid
 Conclusion
I conclude, briefly, that the tentative idea which I had mention in the hypothesis is to a greater
extent is correct in the sense that there are various provision in the Constitution of India which
provide power to the three different brances of Government i.e./ Executive,Legislative and
judicial to deal and interpret with International Law. 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
India‟s obligations under the international treaty. Thus, in absence of specific domestic
legislation enacted by the Parliament, the India‟s 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 India‟s 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 Indian .

22

Bibliography
Statutes

 Constitution of India,1950

International Documents

 Universal Declaration Of Human Rights,1948

 International Convention On Civil And Political Rights, 1966

Books

 D.D. Basu, Introduction to the Constitution of India, 20th Edn.

 Oppenheim, Introduction To Piccotto, The Relation Of International Law To The Law Of
England(1915)
 Agarwal ,H .O, ,International Law and Human Rights, Central Law Publication, Allahabad,
2012
 Shaw ,Mancolm N., International Law, Brij basi Art Press ltd, New Delhi, 2005
 Verma ,S. K , An Introduction to Public International Law, PHI Learning Pvt. Ltd, 2010
 Kapoor ,S.K., International law & Human Rights, Central Law Agency, Allahabad, 2010
Articles and Journals

 A Paradigm Shift In The Role Of Domestic Courts In Implementing International Treaty

Provisions: An Indian Perspective by : Mr. Narendra Kadoliya
23
 Implementation Of International Law In India:Role Of Judiciary-By Dr. Sunil Kumar
Agarwal
 Good Governance In International Law :An Indian Perspective (ILA Regional Conference,
South Africa)
 Bimal N. Patel, India and International Law: Introduction, Martinus Nijhoff Publishers, The
Netherlands, 2011
 Pearson Education, Singapore, Vol. 1 (1905)
 S.B. Sinha J., “A Contexualised Look at the Application of International Law – the Indian
Approach”, AIR Jour, 2004,.
 M. Sivaraman, “Role of Indian Judiciary in Harmonising Municipal Law with International
Law’, AIR, Jour., 2003.

Websites

 www.supremecourtofindia.nic.in
 www.manupatrafast.com
 www.legalindia.com
 www.journal.lawmantra.co.in
 http://www.legalanswers.sl.nsw.gov.au
24