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(Aayushi Singh is a lawyer who graduated from Institute of Law, Nirma University, Ahmedabad. This is the final article in a three part article series. ) In the previous part, the author discussed how the Supreme Court has successfully bypassed the attacks on its legitimacy by concurring with the demand of a “committed judiciary” that works parallel to the interventionist government. The author further discussed the Supreme Court’s efforts for gaining legitimacy with respect to the use of Public Interest Litigation and entering in the domain of judicial populism rather than focusing more on its classical function of judicial review. Public Interest Litigation vis-a-vis International Law Article 51(c) of the Constitution of India directs the state to ‘endeavour to’, inter alia, ‘foster respect for the International law and treaty obligations in the dealings of organised peoples with one another.[1] This Article falls in Part IV, which is Directive Principles of State Policy; although these are not enforceable by any court, they are fundamental in the governance of the country and it is the duty of the state to apply these principles while making laws.[2] Court has been widely using the principles of International law as model law while delivering its judgement; several International legal norms have been incorporated in the fundamental rights. The precautionary principle incorporated into the environmental law in the case Vellore Citizen’s Welfare Forum v. Union of India (1996) 5 SCC 647, is a legal norm; court repeatedly expanded the reach of international law in the domestic law. The historical dimension of the relationship between International law and municipal law can be seen in Article 372 of the Constitution of India, which enumerates that ‘all the laws in force immediately before the commencement of Constitution shall continue to be in force unless amended or repealed by a competent authority. The laws in force here referred to the common law of England including the norms of customary International law.[3] Historically India has been described as a dualist country but evidences from the past reflect its monist nature clearly.[4] Aparna Chandra has argued that though India remains formally committed to its dualist nature, in practice it shows monist tendencies.[5]
In dualism the international and domestic laws operate in distinct spheres, legislative action is required to incorporate international law into domestic legal order[6] on the other hand monism conceives international and domestic law as a part of the same legal order, there is no requirement of legislative action to incorporate international law into domestic legal order they are automatically incorporated.[7] One of the corollaries of dualism is the “doctrine of transformation”[8] which directs that the municipal courts cannot apply an international obligation unless that has been incorporated by legislative action in Maganbhai Ishwarbhai Patel v. Union of India, (1970) 3 SCC 400. The Supreme Court of India has acquired the monist doctrine of incorporation over the years, without any legislative transformation court has enforced certain international laws while deciding domestic cases.[9] Cases came up in phases before the court, from 1947-1970 cases related to territorial and boundary disputes, 1970-1990 environmental and Human Rights matters were reported as the country was witnessing socio-political and economic turmoil, and from 1990 till now with environment and human rights matters international commercial and trade matters came up.[10] A recent instance can be taken from the case Sahil Bali v. Union of India where the court has to decide upon the Constitutional validity of Juvenile Justice Act, 2000 with reference to the age of Juvenile, while upholding the constitutionality of the Act, Court among other things relied on International law and noted that keeping in consonance with the Constitution and various Declarations and Conventions adopted by India, a child below the age of eighteen years would be a Juvenile which is also Article 1 of the Convention of the Rights of the Child.[11] The court started showing monist tendencies as early as 1984, in Gramophone Company of India Ltd. v. Birendra Bahadur Pandey court while interpreting a provision of Indian Copyright Act held that the rules of International law do require express legislative sanction to accommodate it in the Municipal Law unless they conflict with the existing law of the nation. The law in question in the Gramophone case was a treaty-based law, the court in Vellore Citizens Welfare Forum v. Union of India delivered the same standing in the Customary International Law. Court reiterated its opinion of Vellore Citizens in People’s Union of Civil Liberties v. Union of India and held that once an international principle is accepted as a part of customary international law it is deemed to have been automatically incorporated in the domestic law if it is not contrary to the municipal law. In Vishaka and Others v. State of Rajasthan and Others, the court opined that inter alia that ‘if any International Convention which is not or inconsistent the fundamental rights and accord with its spirit then it must be read with these provisions to expand its reach and thereof to promote the object of constitutional guarantee.’ In this case, court moved from transformation theory to incorporation doctrine. Court has not only used fundamental rights provisions to channel international law into domestic law but it has also interpreted certain domestic law in a way that it fulfils the object of certain India’s international commitments.[12] For instance, while deciding P.N. Krishna Lal v. Govt of Kerala court opined that reliance should be laid on the spirit of international law while considering the constitutionality of certain questioned provisions. In NALSA case court while deciding the matter that the state violated their right to equality under Article 14 and Right to life and liberty under Article 21 by not identifying them as a third gender, the court viewed these issues as gender identity and sexual orientation as the basic features of human life. Court referred to a number of International legal sources including the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and others. Apart from the covenants, the court moved a step forward by giving reference to judgements and legislation of different countries that recognised transgender as the third gender.[13] The imposition of international law into the domestic laws has been accepted widely particularly in international human rights as some beliefs that it indicates openness and support progressiveness of Indian judiciary.[14] However, Chandra has argued that international law in itself has different shapes- and not all are progressive in nature.[15] When the jurisprudence of Supreme Court was challenged on the ground that Hanuffa Khatoon[16] was a foreign national and fundamental rights under Part III is available only to the citizens hence there is no remedy available to her, the court rejected the argument on the basis of domestic jurisprudence from Constitution along with Human Rights jurisprudence from Universal Declaration of Human Rights, 1948 which provides recognition to the inherent dignity and equal and inalienable rights to all members of the human family. Conclusion The author concludes and believes that through the introduction of PIL and expansion of its scope the judiciary has strengthened the roots of democracy, it has also made transgressions upon the functions of the legislature and the executive which is against the doctrine of the separation of power. Such encroachment has been controversial, as the courts don’t provide any rational philosophy with its decision. Deciding domestic matters with the help of International law has allowed Supreme Court to widen the authority of the court to give orders of several forms, Indian courts are using International law particularly customary international law as having a persuasive value, but it is required that the judiciary find appropriate interpretative theories to deal with the complex relationships between the domestic and International law. Though judicial review is a power vested with the judiciary to check legislative action and ensure the suitable exercise of public power, people becoming more aware of their rights, judicial review of every important government action has no doubt increased the essentiality of the role of the judiciary in India. -- [1] Constitution of India, Article 51(c). [2] Constitution of India, Article 37. [3] B.S. Chimni, India, The Oxford Handbook of International Law in Asia and the Pacific, p 559, 560. [4]Aparna Chandra, India and international law: formal dualism, functional monism, Indian Journal of International Law, 1 (2017). [5] Ibid. [6]Aparna Chandra, India and international law: formal dualism, functional monism, Indian Journal of International Law, 4 (2017). [7]Aparna Chandra, India and international law: formal dualism, functional monism, Indian Journal of International Law, 3 (2017). [8]Aparna Chandra, India and international law: formal dualism, functional monism, Indian Journal of International Law, 16 (2017). [9] Ibid note 33. [10] V.G. Hegde, Indian Courts and International Law , Leiden Journal of International Law 52 58 (2010). [11] Lavanya Rajmani, International Law and the Constitutional Schema, The Oxford Handbook of the Indian Constitution, 250. [12]Aparna Chandra, India and international law: formal dualism, functional monism, Indian Journal of International Law, 18 (2017). [13] National Legal Authority v. Union of India (2014) 5 SCC 438. [14]Aparna Chandra, India and international law: formal dualism, functional monism, Indian Journal of International Law, 21 (2017) [15]Aparna Chandra, Fostering Respect? India’s Engagement with International Law: A Call for Caution (unpublished JSD Dissertation submitted to the Yale Law School, 2013). [16] The Chairman, Railway Board and Others v. Mrs. Chandrima Das and Others, (2000) 2 SCC 465.
2 Comments
15/7/2022 04:29:58 pm
Held that once an international principle is accepted as a part of customary international law it is deemed to have been automatically incorporated in the domestic law if it is not contrary to the municipal law. Thank you for making this such an awesome post!
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15/7/2022 04:49:54 pm
The court rejected the argument on the basis of domestic jurisprudence from Constitution along with Human Rights jurisprudence from Universal Declaration of Human Rights, I’m so thankful for your helpful post!
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