The Gap Between Ratification and Implementation

In one line

The gap between ratification and implementation is the distance between what India has undertaken internationally and what a person actually experiences, and it has five distinct causes, each of which needs a different remedy.

Why the phrase must be broken down

Because a gap named is not a gap explained. An answer that says implementation is poor has stated the problem as its own analysis. The five causes below are the analysis, and each maps onto a different institution.

Cause one: the dualist structure itself

A ratified treaty does not become Indian law. Article 253 gives Parliament the power to legislate for implementation, and until it does, the treaty binds India internationally and creates no domestic right.

So the gap begins as a matter of constitutional design, not of failure. Ratification is an executive act; implementation requires a legislative one, and nothing compels the second to follow the first.

The consequence is measurable. The Convention on the Rights of the Child was ratified in 1992, and the statutes carrying its content, the juvenile justice legislation, the education statute and the child sexual offences statute, came in 2000 and after. Eight years and more passed in which the obligation existed and the law did not.

The remedy for this cause is legislative, and [Article 253, and the Power to Implement a Treaty] describes the machinery.

Cause two: reservations and declarations

A gap that India has created deliberately and stated openly.

The declarations on articles 5(a) and 16(1) of the Women's Convention on personal law; the declaration on article 32 of the Child Rights Convention on child labour; the declaration on article 16(2) on marriage registration; and the position on descent in article 1 of the Racial Discrimination Convention.

These are not failures of implementation; they are stated limits on what was undertaken. The honest description is that the obligation is narrower than the treaty, not that the obligation is unmet. [India's Reservations and Declarations] classifies them.

Cause three: the unratified instruments

The Convention against Torture, signed in 1997 and not ratified. The Enforced Disappearances Convention, signed and not ratified. No individual complaint procedure accepted under any treaty, whether the First Optional Protocol to the Civil and Political Covenant, the Women's Convention Optional Protocol, article 14 of the Racial Discrimination Convention or the equivalents.

Here the gap is not between ratification and implementation at all. It is a gap before ratification, and a candidate should say so, because it is the one place where the standard criticism is imprecise. India cannot fail to implement what she has not undertaken.

What can fairly be said is that the refusal to accept individual complaint procedures removes the mechanism most likely to close the other gaps, since it is individual petition rather than periodic report that produces findings on particular facts.