Article 51(c), and the Duty to Foster Respect for International Law

In one line

Article 51(c) directs the State to endeavour to foster respect for international law and treaty obligations in the dealings of organised peoples with one another, and although it is unenforceable under article 37 it supplies the constitutional warrant for construing Indian law consistently with India's international obligations.

The text

Article 51: promotion of international peace and security. The State shall endeavour 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.

Three features of clause (c).

It distinguishes international law from treaty obligations, so it covers both customary law and treaties.

It is addressed to the State as defined in article 36, which by reference to article 12 includes the legislature, the executive and local and other authorities, so it is not merely a foreign policy direction.

And it is an endeavour, like every other directive, which is what article 37 makes unenforceable.

What it does despite being unenforceable

Four functions, and they should be given as functions rather than as a general statement that directives influence interpretation.

It supports the presumption of consistency. Indian law is presumed, where it admits of the construction, to be consistent with India's international obligations, and article 51(c) is the constitutional foundation of that presumption.

It supports reading a convention into a fundamental right. The rule that a convention not inconsistent with the fundamental rights and in harmony with their spirit is read into them to enlarge their meaning is grounded in article 51(c) together with the general principle. [The Rule That a Convention in Harmony Is Read Into the Rights] takes it.

It supports incorporating customary international law. A norm that has become custom is treated as part of Indian law so far as it is not inconsistent with a statute, and the direction to foster respect for international law is what makes that a constitutional principle and not merely a common law inheritance.

And it colours the reasonableness inquiry. A restriction that serves an obligation India has assumed internationally is more readily held reasonable under article 19, because article 51(c) makes respect for that obligation a constitutional object.

The three limits

Stating them keeps the chapter honest, because article 51(c) is frequently made to bear more than it can.

It cannot override a statute. Where Parliament has legislated inconsistently with a treaty, the statute governs in India, and article 51(c) does not make the treaty prevail. That is the direct consequence of dualism.

It cannot create a right. It supports the enlargement of an existing fundamental right and supplies no right of its own, which is why asylum and nationality remain outside Part III however clearly the instruments state them.