India follows the parliamentary system of governance and there is a rigid separation of powers, with each organ exercising their authorities though it does overlap under some instances but there are certain checks and balances to ensure their proper functioning. The organs are distinctively empowered to undertake the obligation for executing the treaties within the internal legal system. India is a signatory to many International bilateral and multilateral treaties and conventions. The Constitution of India lays emphasis on the principles of sovereignty and federalism; it belongs to the dualistic theory under the two schools of law which means that International law does not automatically become applicable under the municipal law as they are separate and have to be incorporated by the legislation as an act of Parliament. The Indian judiciary has been proactive through judicial activism in interpreting the obligations concerning International law especially human rights and environmental law into domestic law. In the case of P.N. Krishna Lal v. Government of Kerala, the Apex court held that domestic courts can seek to implement international laws as an external aid for the construction and upsurge for municipal legislation. It would not be erroneous in stating that in recent past Indian judiciary has he heavily relied on the International treaties.
States follow divergent processes for the implementation of International law into their own legal systems, though it requires ratification to international treaties but it cannot govern or overpower the municipal law. The government of India, executive organ, under Article 246 and 253 is delegated with the responsibility to negotiate and implement treaties. The power of the executive and legislative is an extension of law-making power exercised by the Parliament which is in line with the power conferred on it under Entries 13 and 14 of List-1, Seventh schedule. The Article 51 of the Constitution, read with Article 37, lays down the Directive Principles of State Policy which are not enforceable by the law as fundamental rights but are preliminaries to effective governance and does not preclude the inclusion of underlying principles of the International treaties in good faith.
In the case of Keshavnanda Bharti v. State of Kerala, the court reiterated the importance of interpreting the constitution in the presence of the United Nations Charter and the dignified declaration advocated by India.
India follows an integrated judicial system and under certain circumstances it has taken recourse of International conventions like in the case of Visakha v. State of Rajasthan, the court relied of international law in the absence of effective domestic laws to deal with the crimes related to sexual harassment in work places for women. There have been many instances when the Indian judiciary took recourse of International treaties especially for guaranteeing the citizens of India to lead a life with dignity under Articles 14, 15, 19(1)(g) and 21 of the constitution, in Neelabati Behera v. State of Orissa where the court dealt with the matter concerning custodial death and traversed the scope of ICCPR. Therefore, it becomes mandatory for the courts to construe pre-existing international obligations into our constitutional provisions for delivering justice.
It does not require for the legislative to draft new legislations but to incorporate within the previous statutory regulations. In Additional District Magistrate, Jabalpur v. Shivakant Shuklaand and Chairman Railway Board v. Chandiram Das, the Apex court developed on the ambit of Article 21 of the Indian Constitution in the light of Articles 862 and 963 of Universal Declaration of Human Rights. The courts attempted to deal with the acclivitous and intertwined nature of municipal and international law first in the case of Jolley George Varghese v. The Bank of Cochin, where it scrutinized the scope of Article 11 of International Covenant on Civil and Political Rights in light of the contractual provisions of domestic law to safeguard the personal liberty of civil debtors in regard to the human rights. If there is a conflict between the domestic law and the International law, the courts resort to a harmonious assembly of the both, following the doctrine of incorporation, but primary emphasis on the former will prevail over the latter if it stands in contravention with a parliamentary act as laid down in the case Gramophone co. of India Ltd. V. Birendra bahadur pandey. The international treaties do not become binding on a nation just by the act of ratification but have to be enacted in the domestic legal system under proper executive powers. International law stands to aid of nation such that it fills the grey spaces created in the application of domestic law in the absence of required provisions, giving a broader and liberal scope of interpretation in order to achieve the principle of equity, good conscience and justice.
 (1995) Supp. 2 SCC 187 Samsher Singh v. State of Punjab AIR 1947 SC 2192  (1973) Supp. SCR 1  AIR 1997 SC 3011  (1993) 2 SCC 746  AIR 1976 SC 1207  (2000) 2 SCC 465  AIR 1980 SC 470  (1984) 2 SCC 534
Author Details: Arushi Gupta (O.P. Jindal Global University)
The views of the author are personal only. (if any)