The Indian Constitution and Its Contribution to International Law

Law is given by the subjects of that legal system to govern themselves. In this sense, States are the primary contributors of international law. They also adopt principles from international law into their domestic systems in order to bring them in tune with contemporary international standards and practices. Uniformity in law fosters better international relations. Although, other subjects of international law also contribute to the development of international law, our primary concern here is the interaction and interrelationship between municipal law and international law. This relation is two-way, that is, international law borrows principles from domestic law and vice-versa, and this relation should be analysed as such.

Indian and International Law

India’s contribution to international law, especially in the field of humanitarian laws, environment protection, technology and trade laws, cannot be overemphasised. At the same time, India has adopted from international law to fulfil its international commitments. Prominent in this exchange are human rights, environmental laws, the intellectual property laws, arbitration law and space laws. The relation between India and international law can be analysed in two major parts – relation with Indian Constitution and the relation with other laws. Here, we will focus on Indian Constitution and international law.

A cursory look at the practice of India in relation to international law would be pertinent here. India’s approach to international law can be looked at from two perspectives – Indian law vis-a-vis treaties and Indian law vis-a-vis international customs. The courts have held that treaties to which India is an assenting party should be implemented in good faith, but at the same time, the executive cannot be directed to follow the treaty in absence of a domestic law. Generally, treaties are considered self executing, unless it requires an amendment to the Constitution or an existing law, or a new law is required to be enacted. Therefore, the Courts can take aid of the treaty principles not inconsistent with the provisions of laws of India. [1] Customary international law is not considered to become part of municipal law automatically. Therefore, where there is a conflict between municipal law and customary international law, the former will prevail. [2]

The Constitution of India and International Law

The ties of India’s Constitution with international law date back to the pre-independence days. India was the separate member of the League of Nations. It is also the founding-member of the United Nations. In this section, we will see the general scheme of the Constitution with reference to international law and further proceed to analyse other provisions and aspects.

Article 51 is considered the concrete provision dealing with the relation of Indian Constitution and international law. But before we go into detailed analysis of it, we should look at the Preamble, Part III and Part IV of the Constitution. The Preamble enumerated certain basic values that India guarantees to its citizens and strives to achieve. These values are accepted as universal and basic by most nations throughout the world. The fundamental rights in Part III and the positive mandates to the State in form of Directive Principles can be compared with the Universal Declaration of Human Rights and commonalities can be traced. Shri Subhash C Kashyap has prepared a detailed chart on the common principles in these two parts as well as certain other laws of India. [3] Further, Article 51A gives effect to the declaration in Article 29(1) of the Universal Declaration of Human Rights, which emphasis the duty of individuals to the community.

International Peace and Security, and International Relations

Article 51, which mandates the State to endeavour to promote international peace and security, to maintain good relations with other nations, to respect international law and to settle international dispute by peaceful means is inspired from the Declaration of Havana adopted on 30th November, 1939. The Declaration proclaimed the ‘unshaken faith’ of the parties in international co-operation and promoting international peace and security. This Article is the most important provision while we study the relation with international law. Clause (c) obligates India to respect international law. A combined reading of this with Part III of the Constitution facilitated the judiciary in developing human rights and environmental jurisprudence in India.

Clause (d) of the Article provides for ‘settlement of international disputes by arbitration’. The wisdom of using the term arbitration is doubted. Most countries do not prefer arbitration to other means and in fact the practice of various States shows that arbitration is not the first choice of different nations. India too has not preferred arbitration as the first means to settle international disputes. [4] The UN Charter too suggests various means like negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means. In these circumstances, it is obvious that the use of the term arbitration is misplaced.

Powers of the Executive in matters of International Law and Relations

By virtue of Article 73, the powers of the Government of India extends to matters in respect of which the Parliament has the power to make laws, subject to constitutional provisions or any law made by the parliament on that behalf. As per Article 253, the Parliament can enact laws to implement international obligations, notwithstanding the constitutional distribution of powers. So far, in India, there is no legislation that limits the power the executive in matters of international law and relations. Hence, we can state that the executive has extensive powers in this regard.

The power of the executive is vested in the President of India and is exercised by directly or through officers subordinate to him. [5] All contracts entered into by India should be made in the name of the President. [6] The President, in the exercise of her powers should act according to the advice of the Council of Ministers. [7] All executive actions are taken in the name of the President of India. [8]

Treaty Making Power

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. [9] 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.

Capacity to Maintain Suits

Article 300 provides that the Government of India can sue or be sued in the name of the Union of India.

Extra-territorial Jurisdiction

The Government of India, as per Article 260, can enter into an agreement with any other foreign State to undertake legislative, executive or judicial functions in such territory.

The power of the Parliament

The power of legislating is divided by territorial extent and competence over subject matter. The Parliament can make laws for the whole of India on subjects specified in List I of Schedule VII, and the legislature of the any State can make laws applicable within the territory of that State over the subjects contained in List II. List III is designated as Concurrent List over which the Parliament as well as the legislature of the States can exercise jurisdiction, subject to the overall power of the Parliament. [10] Article 253 confers exclusive power on the Parliament to enact laws to implement international agreements. This power overrides even the other provisions in Chapter 1 of Part XI of the Constitution which deals with the distribution of powers between the Union and the States, as explained above. The provisions of Article 253, therefore, gives power to the Parliament to enact laws on matters listed in List II of Schedule VII, in order to implement international treaties, agreements, conventions or decisions taken international conference, association or other body. Hence, the power of the Parliament on matters of international law can be stated to be plenary. Further, the residuary power of legislating is also with the Parliament. [11] This enables the Parliament to legislate on matters not listed in Schedule VII.

The Parliament also possesses the power to admit foreign territories into the Union by way of a law (Article 2). But, if territory of India has to be ceded, a constitutional amendment will be required, as the Constitution does not specifically empower the Parliament to do so.

The impact of International Law on Human Rights in India

Fundamental rights under the Indian Constitution and the international humanitarian law contain similar principles and values. Developments in international law have paved way to various human rights legislations in India. A greater role is being played by the judiciary in developing human rights jurisprudence in India based on international principles.

Contributions to Environmental Law

Since the Stockholm Conference in 1972, several Acts have been passed in order to implement international treaties. The judiciary’s contribution in this regards is invaluable, in both adopting international principles and enforcing municipal law in conserving and protecting environment.

ROLE OF INDIAN JUDICIARY IN IMPLEMENTATION OF INTERNATIONAL LAWS

Jayesh Sharma

LL.M. 10 – 16

Introduction

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 [12] 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.

General Principles

It has been categorized into two parts as:

Prevailing Customary International Laws

Our Indian constitution contains a specific provision in article 51 which is a direction to state, which actually shows the intention of our law makers(founding fathers) towards international law which reads as under: “ Promotion Of International Peace And Security-The state shall endeavor to-

(a) Promote international peace and security;

(b) Maintain just and honourable relations between nations;

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

(d) Encourage settlement of international disputes by arbitration.

In case of keshavanand bharti v/s state of kerala [13] Chief Justice Sikri observed that: “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 a municipal law, in the light of the United Nations Charter and the solemn declaration subscribed to by India”. from the above judgment it can be deduced that where the language of the municipal law is ambiguous or rather intractable the court must rely upon the parent international authority of municipal law. as article 253 of our Indian constitution confers exclusive power upon parliament to make law for giving effect to any treaty, agreement or convention with any other country or countries or any decisions made at any international conference.

Article 51 directs the state to respect international law although it does not make international law as a part of Indian law. Article 51 is a directive principle i.e. it is to be read with article 37 of constitution of India which lays down the provisions contained in part iv shall not be enforceable in any courts but the principles therein laid down are nevertheless fundamental in governance of the country and it shall be the duty of the state to apply these principles in making laws.

Thus if there occurs a conflict between the international and the municipal law, the courts shall as far as possible shall try to provide a harmonious construction between the two laws. this view has been taken by the Calcutta high court in krishna sharma v/s state of west benga [14] Whereas in the case of ADM Jabalpur v/s Shivkant Shukla ( Habeous corpus case) [15] the Honble Supreme Court has taken the view that “nothing which conflicts with the provision of our constitution could be enforced her under any disguise”

Taking the liberal approach the Honble Supreme Court in the case of Gramophone Co of India V/S Birendra Bahadur Pandey [16] has laid down that the comity of nations requires that the rules of international law may be accommodated in the municipal law even without express legislative sanctions provided they do not run conflict with the acts of parliament …the doctrine of incorporation also recognizes the position that the rules of international law are incorporated into the nations law and considered to be part of national law , unless they are in conflicts with an act of parliament.

The height of judicial creativity is enshrined In the case of Vellore citizens welfare forum V. Union of India [17] , the Honble Supreme Court upholding the validity of principles of sustainable development , polluter pays and precautionary rules has laid down “ once these principles are accepted as part of customary international law, there should be no difficulties in accepting them as part of our domestic law. It is almost an accepted preposition 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 court of law.” The same view has been taken by the Honble Supreme Court in the case of People Union for Civil Liberties V. Union Of India [18] .

Thus it can deduced from the above judgment that the courts while applying the rules of international customary law have craft them in the Indian domestic law.

Implementation of treaty obligation

The basic question which arose for the implementation of international law covenants, treaties is that whether the treaties are automatically binding on india or they need any enabling legislation.

Answer to this question lies in the judgement given by the hon’ble court in the case of Jolly George Verghese and othrs vs Bank of Coachin [19] . The hon’ble supreme court, through the words of Justice Krishna Iyer had laid down that “the positive commitment of state parties is in the legislative action at home but does not automatically covenant and enforceable part of corpus juris in India”.

On the practical note it has been observed that international treaties have been used in aid of domestic laws. Such treaties are been used for the following purposes.

To fill a gap in the law

As the mean of interpretation

To justify and fortify a stance taken

To implement international convention when they are not in conflict with existing national laws.

To fulfill the spirit of the conventions and treaties

To interpret the law as to reflect international changes

The judicial activism in the field of implementation of international treaties can be marked from the leading case of Vishakha vs. State of Rajasthan [20] . The hon’ble apex court while promulgating the guidelines on women’s sexual harassment has 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 internation conventions and norms are significant for the purpose of interpretation of the guarantee of gender equality, right to work with human dignity in Article 14, 15 , 19(1)(g) and 21 of the constitution and the safeguard against the sexual harassment implicit there in. any international convention not in consistence with the fundamental rights and in harmony there of to promote the object of constitutional guarantee”.

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 [21] 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 Das, [22] , 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 UDHR, and principles there of may have to be read, if need be, into the domestic jurisprudence.

Conclusion

It would be better to conclude and precisely to say that the international treaties are enforceable by the indian courts when they are incorporated by international law by the act of parliament. There are number of legislations which are constituted after india became the signatory to such international covenants and treaties, eg: Diplomatic Relation (Vienna Conventions) Act 1972. SAARC Convention (separation of terrorism) Act 1993, Protection Of Human Rights Act 1993. Some other acts on territorial waters, exclusive economic zone etc.

It would not be wrong to say in recent years indian judiciary had relied upon international treaties and conventions un less they are not in conflict with the Indian national laws.

DOMESTIC IMPLIMENTATION OF INTERNATIONAL LAW

Sachin Shinde

MEANING OF INTERNATINAL LAW- PROF.OPPENHEIM defines international law as body of customary or conventionary rule which are considered legally binding by civilised while

States while intercourse with each other

Implementation of inter national law in Indian context can be broadly divided into

Two parts i.e. implementation of international law in pre constitution period and implementation

Of international law in post constitution period

INDIAN CONSTITUTION AND INTERNATIONAL LAW –

There has been various provision made in constitution regarding implementation of international law . some of them are as follows

ARTICLE 51 OF CONSTITUTION-

Art.51 clause[ c] of constitution state that state shall endeavour to foster respect for international law and treaty obligations in dealings of organised people with one another.

ARTICLE 253 OF INDIAN CONSTITUTION-

Notwithstanding in the forgoing provisions of this chapter parliament has power to make

Any law for the whole or any part of territory or implementing any treaty, agreement, conventions

With any other country or countries of any decision made at an international conference, association or other body.

India has taken sincere steps towards the implementation international covenants and

Treaties in which he is signatory

Some of the rule and law India had made with regard to the international law in the field of 1. Enviormental law 2.Air law 3.Trade law.

INT ERNATIONAL ENVIORMENTAL LAW AND IMPLIMENTATION IN INDIA-

There has been various international conference took place with regard to environmental issues

Some of are as follows

1.-STOCKHOME CONFERENCE-

1st UNITED NATION Conference on Human Enviorment was held in june 5 to16 1972 in stockhom

The conference was called for

“to defend and improve the human environment for present and future generations has become the

Imperative goal for mankind”

The 1st addressee to the conference was Indira Gandhi the then Prime Minister of India

The result of stockhome conference in India was that 42nd amendment made in constitution

Whereby certain article were added in the Indian constitution i.e. Art.48-A and ART.51 A(g)

Certain changes were made in the7th schedule of the constitution

The act which were incorporated in line of stockhom conference are as follows-

1 .WATER (prevention and control of pollution)ACT,1974

2 .AIR(prevention and control of pollution)ACT,1981

3.THE ENVIONMENT PROTECTION ACT , 1986

2.UNITED CONFERENCE ON ENVIORNMENT AND DEVELOPMENT (UNCED)

The united nation conference on environment and development also known as RIO SUMMIT.

Rio conference took place from 3 June to14 June1992

India commitment to Rio summit was to “ to develop national law regarding liability and compensation for the victim of pollution and other environmental damages”

The fruit come of this conference to in context to India was that various acts were enacted

Some of them are as follows 1. Public Liability Insurance Act 1991

2. National Environmental Tribunal Act 1995

The Wildlife( Protection) Act 1972 was amended by Indian parliament to give effect to

Various provisions of the ‘ Convention on International trade in Endangered species of wild fauna and flora(EITES)1973 ‘ as India is the signatory to the convention .

2. IMPLIEMENTATION OF INTERNATIONAL AIR LAW IN INDIA-

A number of international conventions have been conducted to regulate air law. India is party

To most of international conventions and to give effect to this convention India has enacted

Several law.

1.CHICAGO CONVENTION ON INTERNATIONAL CIVIL AVIATION,1944-

Chicago convention on international civil aviation is most important convention relating to

Aerial navigation . in this convention International Civil Aviation Organisation ( ICAO)

Was established .

Impact on India- the outcome of this convention with regard to India was that Aircraft Act 1934

Was enacted by Indian parliament.

2. TOKYO CONVENTION-

Tokyo convention 1963 was held in Tokyo in order to solve problem relating to danger against

Safety and to punish hijacker.

Impact on India- the impact of Tokyo convention in India was that Tokyo Convention act ,1971 was

Established.

3. WARSAW CONVENTION-

Warsaw convention which was held 12th October 1929 was in regard for unification of certain

Rule relating to international carriage.

Impact on India – The outcome of this convention in regard to India was that to give to this convention Indian Carriage By Air Act,1972 was established.

4.HAGUE CONVENTION 1970-

Hague convention was milestone in regard to suppressing the crime of hijacking was took place in 1970.

Impact on India-The outcome of this convention is that Indian parliament enacted the ANTI

HIJACKING ACT, 1972

IMPLEMENTATION OF INTERNATIONAL TRADE LAW IN INDIA

Self sufficiency in trade sector is no longer a feasible dream. every country is dependant on other

Country .

INTERNATIONAL TRADE ORGANISATION AND INDIA-

India is a member of various international trade organisations, some of them are as follows –

IMF, UNCTAD, UNDP , UNICTRAL , IBRD.

Most popular effect of UNICTRAL with reference to India is ARBITATION AND CONCIALIATION ACT

ACT 1996 based on UNICATERAL model.

TRIPS AGGRIMENT AND INDIA-

The impact of TRIPS agreement on India is that various acts were made by Indian parliament. some of them are as follows. The Patent Act 1970, Trade Marks Act 1999 ,Copy Right ACT 1957.

WTO AND INDIA-

India is a founding member of World Trade Organisation .Uruguay round binds into 3 basic commitments 1. Market Access 2.Domestic Support 3. Export Competition.

Changes Brought In Customs Regulations Under WTO Regime-

Custom valuation is now based on ’Agreement on Implementation of Article VII of the General Agreement On Tariffs and Trade’1994.

CONCLUSION-

Domestic Implementation of International Law in India is an ongoing process and has done good

Progress. India is a growing economy holding good future. India has taken unilateral Initiative like Special Economic zone act