International Law in Indian Courts

Putting article 73 and entry 14 together: the Union executive may conclude a treaty without Parliament. No ratification by either House is constitutionally required, and there is no Indian equivalent of the United States Senate's advice and consent.

That is a large power, and the check on it is the next section: concluding a treaty and making it enforceable are two different things.

Who makes treaties enforceable: Parliament

Article 253 provides that notwithstanding anything in the foregoing provisions of Chapter I of Part XI, Parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body.

Two consequences, and the second is the one that surprises students.

Implementation is a matter for Parliament, not for the executive that made the treaty. So a treaty that requires a change in Indian law, that creates an offence, or that affects private rights needs an Act.

Article 253 overrides the federal division. The words "notwithstanding anything in the foregoing provisions of this Chapter" mean Parliament may legislate to implement a treaty even on a subject in the State List. That is a significant expansion of Union power, and it is the constitutional route by which a wide range of international obligations, on the environment, on human rights, on trade, have entered Indian law.

Familiar examples of implementing legislation include the Territorial Waters, Continental Shelf, Exclusive Economic Zone and Other Maritime Zones Act 1976 for the law of the sea, dealt with in [The Law of the Sea], and the Arbitration and Conciliation Act 1996 for the UNCITRAL Model Law and the New York Convention, dealt with in [UNCITRAL and International Commercial Arbitration] and [Enforcement of Foreign Arbitral Awards].

What an Indian court actually does

With custom: incorporation

Customary international law is applied by Indian courts without any legislation, provided it does not conflict with an Act of Parliament. The authority is the case below, and this is the doctrine of incorporation described in [International Law and Municipal Law].

With treaties: transformation

A treaty that India has ratified but Parliament has not implemented does not by itself alter the law that an Indian court applies. It cannot create an offence, and it cannot by itself create or take away a private right.

With ambiguity: consistent interpretation

Where a statute or a constitutional guarantee is capable of more than one reading, an Indian court prefers the reading that conforms to India's international obligations. This is the rule that does most of the work in practice, and it is stated in the case below as a rule of construction: courts must interpret national law in a way that avoids confrontation with international law.

The leading case

Facts. Gramophone Company of India Ltd v. Birendra Bahadur Pandey, AIR 1984 SC 667, also reported at (1984) 2 SCC 534 and 1984 SCR (2) 664, decided on 21 February 1984 by Chinnappa Reddy, Venkataramiah and Misra JJ. A consignment of pre-recorded cassettes was shipped from Singapore to Kathmandu in Nepal and arrived at Calcutta in transit. The Gramophone Company, alleging that the cassettes were pirated copies infringing its copyright, invoked section 53 of the Copyright Act 1957. The question was whether goods merely passing through India in transit to a land-locked State were imported within sections 51 and 53 of the Act. That turned on whether Nepal's right of innocent passage of goods across Indian territory, recognised in international law and in treaty, cut down the ordinary meaning of the word.

Held. Allowing the appeal, the Court held the goods were imported for the purposes of the Act. On the general question it stated the Indian position. There are two schools of thought: under the doctrine of incorporation, rules of international law are incorporated into the law of the land automatically and are considered part of it unless in conflict with an Act of Parliament; under the doctrine of transformation they are not part of the law of the land unless already made so by an Act of Parliament, a judicial decision or long established usage. The Court held that nations must march with the international community and that municipal law must respect rules of international law even as nations respect international opinion. The comity of nations requires that rules of international law be accommodated in municipal law even without express legislative sanction, provided they do not run into conflict with Acts of Parliament. But where they do run into such conflict, the sovereignty and integrity of the Republic and the supremacy of the constituted legislatures in making the laws are not to be subjected to external rules. The Court added the rule of construction that courts must interpret national law, wherever possible, so as to avoid confrontation with international law.

Why it matters. It is the statement an Indian answer to MU's topic 1.6 has to contain, and it contains three propositions, not one: custom is accommodated without legislation; an Act of Parliament prevails where they conflict; and national law is to be construed, so far as it will bear it, to avoid confrontation.

A worked example

India ratifies the Convention on the Protection of Coastal Wetlands, which requires each party to prohibit construction within five hundred metres of a designated wetland. Parliament passes no Act. A developer begins building at four hundred metres from a designated wetland, with a permit issued under a State law. A citizens' group sues.

Can the group rely on the Convention directly? No. India follows transformation for treaties, so an unimplemented convention does not by itself create an enforceable prohibition, and a court cannot make lawful conduct unlawful by reference to it.

Is the Convention therefore irrelevant? No, and this is the substance of the answer. If the State law or the permitting rules are capable of more than one reading, the court should prefer the reading that conforms to the Convention, on the Gramophone rule of construction. If a constitutional guarantee is engaged, the Convention can inform its content without being incorporated.

Could Parliament legislate even though land and local government are State subjects? Yes. That is precisely what article 253 is for: Parliament may make any law for implementing a treaty notwithstanding the distribution of legislative powers.

Suppose instead the obligation were a rule of customary international law. Then the court could apply it directly on the doctrine of incorporation, subject to the limit Gramophone states: it must not conflict with an Act of Parliament.

Suppose an Act of Parliament expressly permits construction at four hundred metres. Then neither route is open. The Act prevails in an Indian court, and India is in breach on the international plane, where article 27 of the Vienna Convention prevents it pleading its own legislation as an excuse. The remedy is legislative, not judicial.

Distinctions table

What it does NOT mean

Article 51 is not enforceable. It is a Directive Principle, and article 37 makes the principles unenforceable by any court while declaring them fundamental in the governance of the country.

Treaty-making does not require Parliament. It requires the Union executive, under article 73 with entry 14. Implementation requires Parliament, under article 253. Confusing the two is the commonest error in this topic.

Article 253 does not make treaties part of Indian law. It gives Parliament a power. Until the power is exercised, nothing has changed in Indian law.

"Dualist" overstates it. India transforms treaties and incorporates custom, and its courts construe statutes to conform. The accurate description is a modified dualism, not a pure one.

Limits and criticism

Parliament has no formal role in treaty-making. The executive can bind India internationally on any subject, including subjects in the State List, and Parliament's involvement comes only at the implementation stage, if at all. Proposals for a statutory requirement of parliamentary scrutiny have been made repeatedly and none has been enacted.

Article 253 unsettles the federal balance. A treaty concluded by the Union executive can open the door to Union legislation on a State subject, and the States have no constitutional voice in whether the treaty is concluded.

The gap between ratification and implementation is real. India ratifies conventions that are not implemented for years or at all, and in that period the obligation binds India internationally while being unenforceable in its own courts.

The presumption of conformity has a hard limit. It works only where the statute will bear the conforming reading. Where the words admit of one meaning only, the court must apply them, India remains in breach, and the position cannot be cured by construction.

Quick revision

Article 51: the State shall endeavour to promote international peace and security, maintain just and honourable relations between nations, foster respect for international law and treaty obligations, and encourage settlement of disputes by arbitration. A Directive Principle, unenforceable under article 37, and used all the same.

Treaty-making is executive: article 73 plus List I entries 10 to 14, entry 14 being entering into and implementing treaties. No parliamentary approval is needed.

Implementation is parliamentary: article 253, which lets Parliament legislate to implement a treaty notwithstanding the distribution of legislative powers, so even on a State subject.

Custom is applied by incorporation, treaties by transformation, and ambiguity is resolved by consistent interpretation.

Gramophone Company of India Ltd v. Birendra Bahadur Pandey, AIR 1984 SC 667, (1984) 2 SCC 534, 21 February 1984: the comity of nations requires rules of international law to be accommodated in municipal law even without express legislative sanction, provided they do not conflict with Acts of Parliament; where they conflict, the supremacy of the legislature prevails; and courts must interpret national law so as to avoid confrontation with international law.

Test yourself

1. Who can make a treaty on behalf of India, and does Parliament have to approve it?

The Union executive, under article 73 of the Constitution read with entry 14 of List I of the Seventh Schedule, which covers entering into treaties and agreements with foreign countries. Parliament has no constitutional role in the making of a treaty and its approval is not required. Parliament's power under article 253 is to legislate for implementing a treaty, which is a different stage and may never be reached.

2. Explain article 253 and its effect on the federal structure.

Article 253 provides that notwithstanding anything in the foregoing provisions of that Chapter, Parliament has power to make any law for the whole or any part of India for implementing any treaty, agreement or convention with any other country, or any decision made at an international conference, association or other body. Its effect is that Parliament may legislate even on a subject in the State List where it is implementing a treaty. Since the treaty is concluded by the Union executive without the States' concurrence, the provision allows the Union to acquire legislative competence over State subjects by the act of making a treaty, which is a significant qualification of the federal division.

3. State the three propositions in Gramophone.

First, that the comity of nations requires rules of international law to be accommodated in municipal law even without express legislative sanction, provided they do not run into conflict with Acts of Parliament, which is the doctrine of incorporation applied to custom. Second, that where they do conflict, the sovereignty and integrity of the Republic and the supremacy of the constituted legislatures in making the laws are not subject to external rules, so the Act prevails. Third, that courts must interpret national law, wherever possible, so as to avoid confrontation with international law.

4. Is article 51 of any use if it cannot be enforced?

Yes. Article 37 makes the Directive Principles unenforceable by any court while declaring them fundamental in the governance of the country and a duty of the State to apply in making laws. Article 51 is accordingly used as an interpretive direction: it supports reading statutes and constitutional guarantees, where they are capable of it, so as to conform to India's international obligations, and it is the constitutional foundation of the rule of construction stated in Gramophone.

5. India ratifies a convention creating a new criminal offence. No Act is passed. Can a person be prosecuted under the convention in India?

No. India follows transformation for treaties, so an unimplemented convention is not part of the law of the land and cannot create an offence. Article 20(1) of the Constitution independently forbids conviction except for the violation of a law in force at the time of the act. Prosecution requires an Act of Parliament, which article 253 empowers Parliament to pass. Until then India is in breach of the convention on the international plane, and article 27 of the Vienna Convention prevents it pleading the absence of legislation as a justification.

6. Would you describe India as monist or dualist? Justify your answer.

Neither label fits without qualification, and the accurate description is a modified dualism. India transforms treaties: an unimplemented convention does not change the law that Indian courts apply, and article 253 exists precisely because implementation needs an Act. India incorporates custom: on the authority of Gramophone, rules of international law are accommodated in municipal law without express legislative sanction so long as they do not conflict with an Act of Parliament. And Indian courts apply the presumption of conformity, construing national law to avoid confrontation with international law. That mixture, dualist for treaties and monist for custom with an interpretive bridge between them, is the practice of most common law systems.