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The sphere of international law is growing labyrinthine with the passing time. Bodansky notes the burgeoning of multifarious sources of international law. He specifically pins his focus on the development of the soft law sources of international law and their use in different legal systems. As the arena of international law becomes knotty with each advancement that the world makes into the future it is bound to be consequential for the various state-actors. 

This article will look at the seepage of international law into the Indian legal system. “Seepage”  entails ‘to leak slowly through a porous material or small holes’, connoting an un-justified entry of a substance. Whereas, ‘admittance’ on the other hand, entails the welcoming nature of the host towards the foreign substance. This article shall look at such entries of international law in the municipal law courts of India and will try to map the ‘seepages’ of such law due to the divine violence, as Walter Benjamin puts it, that judiciary does on legislated law in the interests of ‘justice’. 

The article shall begin by looking at the constitutional framework regarding the ‘admittance’ of international law into the Indian legal system. Then the article will chart the case laws where activist stand has been taken by the Indian judiciary and divine violence has been done. This exercise also seeks to unveil the inexact and procrustean approach that the Indian judiciary has taken in application of international customary law in Indian courts. Towards the close, I shall fuse the whole discussion and peruse how woolly employment of international customary law by Indian judiciary has caused detritions in the democratic setup of India and what is the salvaging way forward.  

Indian Constitutional Framework: 

Article 51 of the Indian Constitution of India (hereinafter referred to as Article 51) reads as follows:

51. Promotion of international peace and security The State shall endeavour to

(c) foster respect for international law and treaty obligations in the dealings of organised peoples with one another; and …

Article 51 puts the responsibility of admittance of the international law into the Indian legal system on the shoulders of the legislature (and not the judiciary). Article 51 falls in under the Directive Principles of State Policy (DPSP) under the Indian constitution therefore it is not enforceable in the court of law

But Article 37 of the Indian constitution (hereinafter referred to as Article 37) asks the state to mindful of DPSP when making the law for the country. The court in the landmark case of Kesavananda Bharati v. State of Kerala laid down the principle that the Indian laws must be interpreted in harmonious construction with the international law principles of the UN Charter. It has been argued by C. H. Alexander that the principles of common law act like an unwritten constitution of India along with the written constitution; he cites the example of recognition of diplomatic immunity principle even while it is not a part of the written constitution. He brands these common law exercises as the colonial spin-off that India has inherited and harboured.   

The other important article in the Indian Constitution when one talks about the ‘admittance’ of international law into the municipal domain is Article 253. It empowers the legislature to enact laws to enforce treaties, agreements or conventions that India is a signatory to.  This need to make laws in concurrence with the principles of International law arises out of Article 26 of the Vienna Convention on Law of Treaties, 1969 (hereinafter referred to as VCLT). The said article of VCLT talks about the principle of pacta sunt servanda which purports that a state which is a party to the internationally signed document must adhere to its principles. 

Has the constitutional framework been followed? 

A reading of the above stated provisions of Indian and international law evokes that India follows a Dualism model and not the Monism model of admitting the international law to the municipal arena. That is, to admit the principles of international law into the municipal legal system of India it is mandatory for the parliament to pass a municipal law. The Indian judiciary at various instances both seconded and diverged from this position. The judiciary has freely countenanced seepage of the international law principles in the Indian cases and has rendered the existence of the constitutional framework for admittance, nugatory. 

Simma and Alston have argued that there are various positions with regard to the applicability of the international law principles to the individual states. The most important element of this applicability is the recognition and acceptance of these principles by the states. But the Indian judiciary at more than one instances has failed to do so.

The Indian Supreme Court in the case of J.G. Verghese v. Bank of Cochin, drew a distinction between the treaty law and the customary international law. The court said that it shall only be treaty law which shall need the passing of legislation by the Indian legislature to enforce itself. The court lay down that whereas the customary law is concerned the courts can be bound by it even before the necessary changes have been brought in the Indian law by the legislature. This resonates the aspect of the unwritten constitution. The Indian Supreme Court, in the case of People’s Union for Civil Liberties v. Union of India held that the principles of customary international law should be applicable in the Indian municipal domain to the extent that they are not contradictory to the municipal law. Therefore, ruling out the requirement of legislation by the legislature for a niche category of customary international law which shall be admitted de jure. 

A watershed moment in this activist history of Indian judiciary was the case of Vishaka and others v State of Rajasthan and others where the Indian judiciary not only encroached upon the legislative function by laying down the guidelines against sexual harassment but also upheld the usage the of international law without it being implemented by the procedure established under Article 253 of the Indian constitution. The court gave the reasoning that because there is no specific law to govern the concerning issue of sexual harassment in the workplace,hence judiciary wa automatically elegible to fill the void under  Article 141 of the Indian Constitution and under International treaties. There were two levels of judicial overreach in this case. It is important to note that these two kinds of overreaches are inextricably linked. Firstly the court assumed to itself the function of the legislature that is to make the law and secondly it assumed to itself the function of recognising the usage of the CEDAW, 1980 without the Indian parliament having recognised it fully. The court here erred in thinking that Article 141 gave it the power to make laws. The power given under Article 141 to the judiciary is to only ‘declare’ laws. The court not only breached the mandates of Articles 51 and 253 but also overstepped the power given by Article 141. Melissa Waters terms such acts of the judiciary as ‘creeping monism’.

The Indian Supreme Court came out with all guns blazing in the case of State of West Bengal v. Kesoram Industries Ltd. & others, where it said that even if India is not a signatory to the particular treaty still its principles can be applied in the Indian municipal courts to the extent that it is not at loggerheads with the municipal law. In this case, the judiciary did not even feel needful to function behind the garb of customary international law as a category. Rather the judiciary out rightly opined in favour of the application of unlegislated international law principles in India. 

The aforementioned instance of judicial overreach becomes microscopic when one sees the giant instance of such ‘creeping monism’ in the case of G.Sundarrajan vs Union Of India & Ors. The Indian Supreme Court while considering the case about the Kundankulum Nuclear Plant referred to various international treaties. The astonishing blunder made by the court here was that it made usage of treaties to which India wasn’t even a signatory and penned its decision in the case accordingly. The court said,

“… Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management dated 5th September, 1997 … India is not a signatory to the same but the said Convention is worth referring to…”

Detritions and Salvaging:

The Indian judiciary has portrayed international customary law as something that is encompassing of world views and is basic to the cardinal understanding of rights. Hence, it opines that international customary law can be allowed to ‘seep’ in. But it is very important to unpack this category to see what all are we rendering at the behest of the judiciary which is not a ‘people-chosen’ forum in a democratic setup. Bradley and Goldsmith, argue that modern International customary law category has become to comprise more non-objective laws and more citizen oriented laws which can be at loggerheads with the municipal law.  Hence I argue, it is high time the parliament weighs in and checks the unbridled law-making of the judiciary with regard to the crucial issues which have come to be a part of the international law as this domain mushrooms in a knotty fashion. This practise of the judiciary taking the forefront in propounding the rights of individuals in conjunction with international law is actually driving us away from democratic justice even though this may be divine justice (violence). 

Sahil Bansal is a final year law student, at Jindal Global Law School, Sonipat.   


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