Dualism, and Why a Treaty Is Not Law in India

In one line

India is a dualist State: a treaty binds India internationally on ratification and creates no rights or obligations in Indian law until Parliament legislates, so the whole of Module IV is about the gap between the two and the three ways it has been bridged.

The two propositions

A treaty ratified by India binds India as a matter of international law. The obligation is owed to the other parties, and non-performance is a breach for which India answers internationally.

A treaty ratified by India is not law in India. No court will enforce it as such, no person acquires a right under it, and no official acquires a duty under it, until Parliament enacts a law.

Both are true at once, and the second does not excuse the first: a State cannot invoke its internal law as justification for failure to perform a treaty, which is the settled rule of the law of treaties.

Why India is dualist

Three reasons, and they are constitutional rather than accidental.

Treaty-making is an executive function. The power to enter into treaties is part of the executive power of the Union, and it is exercised without any requirement of parliamentary approval or ratification by a legislature.

If a treaty were law on ratification, the executive could legislate. A ratified treaty would alter Indian law without a Bill, without debate and without a vote, which would be a transfer of legislative power to the executive.

And the Constitution provides expressly for implementation. Article 253 empowers Parliament to make any law for implementing a treaty, and that provision would be unnecessary if a treaty were law of its own force. [Article 253, and the Power to Implement a Treaty] takes it.

That third argument is the textual one and it is the strongest, because it rests on the Constitution rather than on general theory.

The three bridges

A candidate should be able to name all three, because each answers a different question.

Legislation under article 253. The direct route: Parliament enacts a statute giving effect to the treaty, and the statute is enforceable as Indian law.

Construction. A ratified convention not inconsistent with the fundamental rights and in harmony with their spirit is read into those rights to enlarge their meaning and content, which is the doctrine in [The Rule That a Convention in Harmony Is Read Into the Rights].

And customary international law. A norm that has become customary is treated as part of Indian law without legislation, provided it is not inconsistent with a statute, on the principle that international law is incorporated into the domestic law so far as it does not conflict.

The second bridge does most of the work in this paper, and it is the reason Indian human rights standards appear as constructions of articles 14, 19 and 21 rather than as statutory rights.