The Relationship Between International Law And Indian Municipal Law

The relationship between International Law and Municipal Law is complex, especially in countries like India, which has a multitude of Legal, Constitutional, and Judicial frameworks. Whereas International Law consists of agreements such as treaties, Conventions, and Customary Laws arrived at by sovereign states; Municipal Law pertains to the Laws of a Country which are applied within its borders and to its citizens. This interface, as happening between the two legal spheres in India, is brought about under the Constitution, Judicial decisions, and legislation.

The article discusses various dimensions of the relationship between International Law and Indian Municipal Law with respect to issues like theoretical frameworks, Constitutional Provisions, Judicial Interpretations, Treaty Implementation, Conflict Resolution, and the Influence of International Law in practical areas like Environmental Law and Trade.

Theoretical Frameworks

Monism vs. Dualism

There are two general schools of thought in legal theory that explain this: monism and dualism. Theories that may help clarify how International Treaties, agreements, and norms are taken up within the legal system of a state.

Monism

In a monist system, International Law and Domestic Law are dealt with as manifestations of a single legal order. International agreements and conventions ipso facto form part of the corpus of the domestic law and are applied as such by the National Courts without the necessity for specific enabling legislation.

The Indian practice, however, is not in full accord with the notion of monism. While in principle, the legal system in India, too, is dualist, there have been cases where Indian Courts have applied International Law directly when Domestic Law was silent on certain issues. For instance, the Supreme Court of India in the landmark case of Vishaka & Ors. vs. State of Rajasthan & Ors. (1997), applied the International human rights standards under the Convention on the Elimination of All Forms of Discrimination Against Women. The Court directed the State to enact legislation with a view to combating sexual harassment at the workplace. In this case, the use of international law by the Court underlines elements of monism in the judicial approach of India, even though the latter does not formally adopt any monist system.

Dualism

The dualist structure views International Law and Municipal Law as two separate legal entities. The former does not ipso facto become part of the Municipal Law. The International Law has to be translated into domestic legislation before it takes the force of law. This distinction underlines the necessity of parliamentary assent for International treaties to be given effect within the Domestic Jurisdiction of the Country.

Primarily, India follows the dualist approach. International treaties for effectiveness in India are required to be ratified and adopted as a Domestic Law by the Parliament. This is what has been reiterated in the case of Gramophone Company of India Ltd. vs. Birendra Bahadur Pandey & Ors. (1984). The Supreme Court held that International Law does not, ipso facto, become a part of Indian law unless specifically incorporated by Legislative action. The Court thus concluded that, though International Law may be resorted to as an Interpretive tool on Domestic Law, it can never supersede Domestic statute unless incorporated.

Consent Theory

Consent theory insists that International Law becomes binding on states by the fact that they voluntarily give consent to be so bound by conventions and agreements. In this connection, consent theory becomes indispensable to determine the applicability of International Law in the domestic sphere in India as well. It is only the International agreement to which India has consented- whether through formal treaty-making processes or through legislative action- that binds India.

This is reflected in the Constitutional provisions that govern the International obligations of India. For instance, Article 253 of the Indian Constitution has empowered Parliament to make laws with respect to the implementation of treaties and agreements. The ratification of any International treaty by the executive does not automatically turn it into a part of Indian law, without that legislation being drawn. Therefore, the dualist framework gets reinforced on issues of International obligations when it has been enacted in India by following the proper Legislative Processes.

Constitutional Provisions

The Constitution of India lays down a pattern for interaction between International Law and Municipal Law. It provides a legal basis for the engagement of India with respect to various International treaties and obligations that become binding upon her.

Article 51: Promotion Of International Peace And Security

Article 51 of the Indian Constitution, forming part of the Directive Principles of State Policy, provides that the State shall strive to establish and promote international peace and security and “Foster respect for International Law and Treaty obligations.” Although the Directive Principles are non-justiciable that is, they cannot be enforced by the Courts, they serve as a guide to Indian Government actions in their International relations and in making up treaties.

Article 51(c) embodies the commitment of India to International Law and state practice in so far as treaty obligations are concerned. It urges the Indian State to undertake an endeavor to secure Domestic Law in conformity with International Law. However, since mere non-binding Directive Principles lack enforceability, the application of International Law in India is thus left at the discretion of Parliament.

Article 253: Power Of Parliament To Implement Treaties

Article 253 enables the Indian Parliament to enact laws to implement International treaties, agreements, and conventions. This provision, however, emphasizes the dualist approach where International Law has to be domesticated by specific legislation. The function of Parliament is no doubt crucial in the matter as the International treaties and conventions do not ipso facto have the force of law in India unless the Legislation is enacted to incorporate them into the Domestic Law system.

For instance, the Protection of Human Rights Act, of 1993, was enacted to give effect to India's International obligations under human rights treaties such as the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). In the similar lines, Environmental Laws such as the Biological Diversity Act, of 2002, have been enacted to carry out International obligations of India under the United Nations Convention on Biological Diversity.

Judicial Interpretations

The Indian Judiciary has indeed played a very significant role in developing the relationship between international law and municipal law. At various times, Indian Courts have referred to International treaties and conventions to fill the lacuna in domestic law. It has been done so, especially on issues concerning human rights and the protection of the environment.

Landmark Cases

Gramophone Company of India Ltd. vs. Birendra Bahadur Pandey & Ors. (1984)

In this case, the Supreme Court of India propounded the theory of dualism, where it held that a rule of International Law does not become a part of Indian law unless it has been incorporated into Indian law by proper legislative action. The case involved enforcement of an international agreement in regard to copyright and, thus, it showed that Parliament had to enact laws in order to give effect to international conventions.

Vishaka & Ors. vs. State of Rajasthan & Ors. (1997)

The Supreme Court in this case applied International law in the form of CEDAW directly to the case of sexual harassment at the workplace. At the time of the Judgment, there was no comprehensive Domestic Law on sexual harassment at the workplace. The Court immediately made use of this legislative vacuum by laying down guidelines consistent with International legal standards. This case is indicative of the fact that National Courts in India can apply International Human Rights Law when National Laws are silent or inadequate upon the issue.

Apparel Export Promotion Council vs. A.K. Chopra (1999)

In the instant case, the Supreme Court of India looked upon the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) to interpret the provisions relating to sexual harassment at the workplace. The Court said that although International conventions are not explicit and automatic parts of National Laws and policies, they offer guiding principles to interpret various provisions.

People’s Union for Civil Liberties & Anr. vs. Union of India & Ors. (2004)

The Supreme Court of India in this case dealt with the right to information and its linkage with International Law. The Court recognized that the right to information is a fundamental right under Article 19(1)(a) of the Indian Constitution. Without the effective exercise of this right, the democratic society cannot properly function. The Court resorted to international norms and conventions to explain the meaning of the right to information. It emphasized that international human rights principles may be applied in interpreting and expanding the ambit of constitutional rights in India.

National Legal Services Authority vs. Union of India & Ors. (2014)

In this case, the Supreme Court made seminal observations while explaining the interrelation between International Law and Domestic law. While noting so, the Court emphasized that international conventions and norms, even if not specifically incorporated into the Domestic Laws, can be used to interpret and widen the scope of Constitutional Rights. The Court said that International conventions and norms should be utilized as a tool and aid for the interpretation of Domestic laws, especially when there is a gap or ambiguity in the National legislation.

Rule Of Judiciary In Interpreting International Law

International law has been used by the Judiciary of India, more often than not, to interpret domestic statutes, not to mention constitutional provisions. In case of ambiguity or incompleteness of the Domestic Law, the Courts have referred to International treaties and conventions in order to support their Judgments on issues related to human rights, environmental protection, and gender equality.

However, the Judiciary refers to the constitutional supremacy of Domestic Law and recognizes that the latter cannot be overridden by International treaties unless these conventions are incorporated by Parliament. The balancing act in this manner enables Indian Courts to ensure a fostering of International legal norms but at the same time ensures that domestic legislation reigns paramount. The approach of the Court shows progressiveness towards the use of an inclusive, rights-based interpretation of the law inspired by International human rights principles.

Treaty Implementation

Constitutional provisions and the legislative processes determine the approach of India to the implementation of international treaties. Whereas the Indian Government's executive branch has the authority to negotiate and subsequently sign a treaty, the process for incorporating the various treaties into Indian Municipal Law requires an act of Parliament.

Vienna Convention On The Law Of Treaties, 1969

India is a party to the Vienna Convention on the Law of Treaties and, therefore, has developed certain rules on how international treaties can be negotiated, interpreted, and enforced. This convention simply reiterates that the basis of treaty law is the principle of pacta sunt servanda, meaning a treaty is binding upon its parties and must be performed in good faith.

Under the Indian constitutional scheme, however, International treaties are not self-executing said to have no legal effect unless implemented by enabling legislation through Parliament. For example, even though India signed the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) at the WTO, it was under an obligation to bring its National Patent Laws in conformity with the stipulations of the TRIPS Agreement by enacting the Patents (Amendment) Act, 2005.

Human Rights Treaties

India has signed, and at times ratified, several International treaties on human rights, such as the ICCPR and the ICESCR. However, this has not resulted in the automatic incorporation of these treaties into Indian law. Incorporation of these treaties is often gradual, requiring specific legislative measures to give effect to the rights and obligations set forth in these international treaties.

For example, the Protection of Human Rights Act, of 1993, has been passed to bring Indian law in line with the standards laid by International Laws on human rights. Even the Courts in India have applied International Human Rights treaties as sources of reference in interpreting the fundamental rights guaranteed by the Constitution in cases such as Vishaka. In such cases, when there are gaps in the Indian laws, International Law influences Indian Jurisprudence on human rights by the Judiciary directly applying international human rights norms.

Conflict And Harmonization

Among the critical challenges in the relationship between International Law and Municipal Law, how to resolve any conflicts between international obligations and domestic legal provisions is one of the most crucial issues. Several conflict resolution mechanisms have been developed in India in a manner that strikingly balances respect for International obligations while upholding the supremacy of the Constitution and the Domestic Laws.

Conflict Resolution

While there is a conflict between international law and domestic law, the Indian courts have generally maintained the supremacy of the Constitution and domestic statutes. On different occasions, the courts have also followed the approach of harmonious interpretation, wherein the courts try to interpret the domestic law in such a way that it aligns with the international obligations of India.

The Supreme Court has invoked this influence of international law in interpreting domestic law in a range of cases as we have already discussed. The Supreme Court has attempted to bring the Indian law into conformity with international human rights standards by interpreting Article 21 (the right to life and personal liberty) as including protection from sexual harassment. In cases relating to environmental issues, Courts have similarly interpreted domestic environmental regulations in light of international principles such as sustainable development and the precautionary principle.

Harmonisation Efforts

Efforts toward bringing International Law in harmony with Indian Municipal Law are well evident, both in legislative actions and Judicial interpretations. India has passed legislation on issues related to environmental protection and human rights, for instance, to attempt the implementation of international treaty obligations. On the other hand, the Judiciary often resorts to applying International Law on gaps in Domestic Law.

For example, the Biological Diversity Act, of 2002 was enacted to give effect to the Convention on Biological Diversity. The Indian courts have also applied international environmental conventions and treaties while interpreting the Domestic Environmental Laws relating to the right to a healthy environment.

Practical Applications

International law has influenced other fields of Indian municipal law in a multitude of ways. The spheres in which International Law has exerted its influence are primarily Environmental Law and trade and commerce.

Environmental Law

India has become a party to a plethora of general international conventions relating to the environment. These include the United Nations Framework Convention on Climate Change (UNFCCC) and the Convention on Biological Diversity. In fact, these conventions have influenced India's domestic Environmental Laws like the Biological Diversity Act, of 2002.

The Indian Judiciary has been quite proactive in ensuring that international environmental norms are implemented. The Supreme Court, in cases like M.C. Mehta v. Union of India & Ors. (1996), has cited International Environmental Law principles, such as the “polluter pays” principle and the “precautionary principle” to protect the environment and enforce sustainable development.

Trade and Commerce

Participation of India in international trade organizations, especially within the WTO, has opened a new chapter in the growth of Indian domestic commercial law. For example, the TRIPS Agreement came into being and radically changed the face of Indian patent laws through the Patents (Amendment) Act, 2005. These changes thus reflect the increasing impact of International trade law on the legal regime for intellectual properties and commercial regulation in India.

Conclusion

The relationship of International Law with Indian Municipal Law always traverses a balancing path between international obligation and domestic authority. Although India basically follows the dualist approach, yet in many cases, Indian Courts apply International Law directly when it comes to matters concerning human rights and the environment. The facilitating factors include the Indian Constitution, which allows Parliament to make legislation with respect to treaties under Article 253, while under Article 51, respect for International law is fostered. The Judiciary has helped International Law merge into the domestic context, especially in environmental and trade issues. As India proceeds with its interactions worldwide, this relationship will continue to emerge and change Indian legal practices with time.