International Law in Indian Courts: Between Constitutional Dualism and Judicial Creativity

There is a tension between India’s formal dualism and the judiciary’s openness to international law. Let us understand it.

Constitutional Framework

To determine the place of international law within India’s legal system, the natural starting point is the constitutional framework governing the distribution of legislative powers. The Constitution of India establishes a quasi-federal system in which legislative competence is distributed between the Union and the States. Article 246 provides for this distribution through three lists contained in the Seventh Schedule: the Union List, the State List, and the Concurrent List.

A related question that arises is: who possesses the authority to legislate on matters concerning international law? Article 253 of the Constitution empowers Parliament to enact legislation for implementing international treaties, agreements, or conventions. This provision enables Parliament to pass laws giving effect to India’s international obligations, even in areas that may otherwise fall within the State List.

In practice, treaties in India are generally concluded with the approval of the Union Cabinet and are not placed before Parliament for ratification or debate. Nevertheless, when treaty obligations necessitate changes in domestic law, Parliament must enact implementing legislation. There are several examples of statutes enacted specifically to give effect to international agreements. These include the Chemical Weapons Convention Act, 2000 and the Diplomatic Relations (Vienna Convention) Act, 1972. In other instances, domestic legislation refers to international instruments as guiding frameworks. The Environment (Protection) Act, 1986 draws upon the Stockholm Declaration, while the Biological Diversity Act, 2002 reflects obligations arising from the Convention on Biological Diversity. Similarly, the Lokpal and Lokayukta Act, 2013 references the United Nations Convention Against Corruption.

Further, clarity on this competence is provided under Entry 14 of the Union List, which authorizes Parliament to enter into treaties and agreements with foreign states and to implement them. Taken together, these provisions indicate that international treaties do not automatically become enforceable in domestic law. Rather, they require enabling legislation before they can operate within the municipal legal framework. This approach reflects the dualist orientation traditionally associated with the Indian constitutional scheme.

Treaty Implementation

The role of the executive in treaty-making is also relevant in this context. Article 73 provides that the executive power of the Union extends to matters on which Parliament has the authority to legislate. This allows the executive branch to negotiate and conclude treaties with foreign states. However, where the performance of treaty obligations requires modification of existing domestic law, legislative action by Parliament becomes necessary.

Judicial Engagement with International Law

Despite the apparent clarity of the constitutional framework, Indian courts have played a far more dynamic role in engaging with international law. Judicial decisions reveal a willingness to incorporate international norms into constitutional interpretation, particularly in the field of human rights.

In Maganbhai Ishwarbhai Patel v Union of India (1969), the Supreme Court affirmed the dualist position by observing that treaties requiring changes to domestic law must receive parliamentary approval before they can be implemented. Similarly, in Jolly George Varghese v Bank of Cochin (1980), the Court emphasized that international covenants cannot automatically override domestic legislation unless they are incorporated into municipal law.

However, a significant shift occurred with the landmark judgment in Vishaka v State of Rajasthan (1997). In this case, the Supreme Court held that in the absence of domestic legislation, international conventions could be relied upon to interpret and give effect to fundamental rights under the Constitution. This marked the emergence of a broader jurisprudential trend in which international human rights norms began to inform constitutional adjudication.

This approach was further reinforced in Chairman Railway Board v Chandrima Das (2000), where the Court relied upon international human rights principles while addressing the rights of a foreign national within India. Over time, the judiciary articulated the principle that international conventions consistent with fundamental rights and the spirit of the Constitution may be read into domestic law.

Customary International Law

Another dimension of this interaction emerges in the context of customary international law. Where neither constitutional provisions nor domestic legislation directly address a particular issue, courts have sometimes relied on customary international norms to fill the gap. In People’s Union for Civil Liberties v Union of India (1996), the Court observed that rules of customary international law that are not inconsistent with municipal law may be treated as part of domestic law. Similarly, in Vellore Citizens Welfare Forum v Union of India (1996), the Court recognized the principle of sustainable development as part of customary international law and incorporated it into India’s environmental jurisprudence.

Constitutional Paradox

Taken together, these developments reveal a deeper constitutional tension. The Constitution appears to adopt a dualist framework in which international treaties require legislative implementation. Yet judicial practice demonstrates an increasing willingness to rely on international norms when interpreting constitutional rights. In effect, India operates in a hybrid position: formally dualist in its constitutional structure, but functionally more receptive to international law through judicial interpretation.

Foreign Judgments

An additional dimension of this engagement is visible in the Indian judiciary’s frequent reliance on foreign judgments. Courts often draw upon precedents from other common law jurisdictions such as the United Kingdom, the United States, South Africa, and Australia. For instance, in Justice K.S. Puttaswamy v Union of India (2017), the Supreme Court relied extensively on decisions from the United States Supreme Court, the South African Constitutional Court, and the European Court of Human Rights while affirming the fundamental right to privacy.

Contemporary Challenge

At the same time, contemporary developments reveal that the relationship between international law and domestic constitutional interpretation continues to remain contested. In Mohamad Salimullah v Union of India (2021), concerning the deportation of Rohingya refugees, questions arose regarding the extent to which international refugee and human rights obligations could influence domestic constitutional adjudication.

Conclusion

Ultimately, the evolving jurisprudence of Indian courts demonstrates that the relationship between international law and domestic law remains unsettled. While the constitutional framework suggests a dualist orientation, judicial practice reveals a more flexible engagement with international norms. This dynamic interaction continues to shape the place of international law within India’s constitutional order.