By: Kartik Agarwal
International law is a soft law which is based upon the consent of the subject states. The procedure for adopting principles of international law in the domestic regime of a country varies from nation to nation. Primarily, there are two theories for such adoption namely the theory of incorporation and the theory of modification (monism and dualism, respectively). Monist nations directly incorporate international law in their domestic legal system whereas, the dualist nations require enabling legislation for its incorporation. India is a dualist nation where Parliament has to legislate specific legislation for giving effect to a treaty.
Recently, a writ petition was filed before the Supreme Court (hereinafter ‘the Court’) for directing the Parliament to enact a legislation for implementing the UN Torture Convention of 1984 which was signed by India in 1997. The petition resonates with the principle of dualism, where the power to implement a treaty is vested in the Parliament. However, in a slew of cases, the Court has digressed from this principle and has relied upon such international treaties which are either not signed by the Parliament or, if signed no enabling law has been passed for its implementation. It raises doubt over India’s position as a dualist nation and portrays ambivalence in its approach vis-à-vis interaction with the international law. Further, the practice followed by the UK and the US is also required to be looked upon to find their position vis-à-vis interaction with international law.
THE UNITED KINGDOM
Customary international law (hereinafter ‘CIL’) and Conventions are the most prominent sources of international Law mentioned under Article 38 of the ICJ Statute. CIL is an uncodified law which is based upon the practice and behaviour of the states. The UK follows the principle of incorporation for adopting CIL, wherein CIL directly becomes law for the UK without any enabling law. The UK considers the laws of CIL, which have received the consent of all civilised nations across the world, to be deemed to have received the consent of the UK as well.
To the contrary, the UK follows the principle of dualism for treaties. Enabling law is required to be passed by the Parliament for incorporating a treaty into the domestic legal system. The prerogative to decide whether to enter into a treaty is not enjoyed by the courts. This power rests solely with the executive. However, in the absence of enabling legislation for any ratified treaty, the courts are expected to take a stand in consonance with the executive. Incorporating a treaty in the domestic law requires some modification in the legal text and it cannot be done without the assent of the Parliament. It was held by the UK Supreme Court in the Miller case, “we cannot accept that a major change to UK constitutional arrangements can be achieved by ministers alone; it must be effected in the only way that the UK constitution recognises, namely by Parliamentary legislation”.
The above discussion depicts that the UK’s position is clear regarding the interaction of its domestic laws with international law wherein it follows the doctrine of incorporation and modification for CIL and treaties, respectively.
THE UNITED STATES OF AMERICA
The path followed by the USA is similar to the UK with respect to the CIL. The USA has to comply with the international law subject to its Constitution. It was held in Paquet Habana case that the international law is the law of the land and every court should consider these while determining the rights of the people.
Article 6 of the USA Constitution, also known as the Supremacy Clause, declares the treaties entered into by the USA a supreme law of the land. It specifies the monist nature of the USA Constitution, where the treaties entered into by it directly become law of the land. In Avena case, 52 Mexican Nationals were sentenced on death row in the USA. Article 36 of the Vienna Convention of Consular Relations (hereinafter ‘VCCR’), which was ratified by the USA, obligated the USA to inform arrested foreign nationals of their right to contact their consulate. However, the USA refused to provide such rights to the Mexican nationals and rather, accused them of violation of its domestic law. The International Court of Justice (hereinafter ‘ICJ’) held that the USA has consented to abide by the VCCR and thus, it has to be implemented irrespective of the domestic laws. The court further held that the jurisdiction to settle such dispute lies with the ICJ and not with the domestic courts as it has been conferred to the ICJ by the optional protocol to the Vienna Convention.
This settled position was disrupted by the USA Supreme Court in the Medellin case, wherein the Court had called into question the direct enforcement of treaties. The Court held that VCCR is a non-self-executing treaty and thus, a Congressional act is required to enforce the treaty. Further, it classified treaties into two types; self- executing and non-self-executing. Self- executing treaties are those which directly become part of the domestic law without any enabling legislation, whereas enabling legislation is required for the non-self-executing treaty. A treaty is considered to be a self-executing when it reflects the intention of being ‘self-executing’ and is ratified on those terms.
Medellin case has raised doubt over the monist approach provided by the USA Constitution and as a corollary of it, the stand of the USA vis-à-vis international law is still oscillating in the air. Apparently, the USA is a monist nation on paper and dualist in its approach.
India’s stand is very clear with respect to CIL. The Court has held in the Vellore Citizen case that the principles of CIL shall directly be deemed as part of the domestic law unless they are contrary to the domestic law. This is a settled position and no controversy has arisen over it to date. However, that is not the case with treaties as India’s position regarding treaty is not stable.
Article 253 read with Entry 13 and 14 of List I of the Indian Constitution confers power on the Parliament for implementing any treaty, convention or agreement entered into by the Government of India. This signifies the dualist approach adopted by the Indian Constitution which requires enabling legislation by the Parliament to enforce any international agreement in the domestic legal system.
However, the rapid growth of human rights and environmental law has made India digress from this settled position. In Azadi Bacho Andolan case, the Court held that enabling legislation by the Parliament is only required when the treaty or convention affects the rights of the citizens. It means that the treaties, other than the one which affects the rights of the people, can directly be incorporated into the domestic law. Taking a step forward, the Court held in the Vishakha case that the international conventions and laws can be considered by the Court for construing domestic law if they are not inconsistent with domestic law. In the PUCL case, the court gave effect to the unincorporated provisions of the International Covenant on Civil and Political Rights (hereinafter ‘ICCPR’). This shows that the International treaties and conventions can be referred and relied upon by the court, even if they are not a part of municipal law.
In a slew of cases, the Court has even relied upon the treaties to which India is not a signatory. In the G. Sundarajn case, an issue was raised before the Court regarding setting up of a nuclear power plant at Kundankulam in Tamil Nadu. The Court while responding to this question has relied upon various International Treaties which were not signed by India.
Separation of power constitutes a part of the basic structure doctrine of the Constitution of India wherein executive, judiciary and legislature are expected to function without interfering in each other’s office. Policy making is the function of Parliament and the court is not expected to interfere in this function of the Parliament. Further, the mandate under the Constitution is not only to govern its citizens by the right decisions but by the right decision made by the right authority. The acts of the Indian judiciary to incorporate an international treaty without its ratification results in the usurpation of the law-making authority of the Parliament and thus, it is violative of the doctrine of separation of power.
The aforementioned discussion leads us to the conclusion that the position of India vis-à-vis international law is not in consonance with its Constitutional policy. The dualist approach, as provided in the Constitution, is not practically followed by the Indian Courts. Other developed countries like the USA are also suffering from such ambivalence.
In the name of judicial activism and to bring the Indian Constitution in comity with international law, the judiciary is usurping Parliament’s power of enforcing international treaties and conventions. Parliament represents the will of the people and thus, they are entrusted with the duty to make laws for its citizens. Incorporating an international treaty without any enabling legislation goes against the basic constitutional tenets. Article 51 of the Indian Constitution advocates for respecting international law and treaty obligations, but this shall not come at the cost of violation of the constitutional mechanism.
(Kartik is currently a law undergraduate at National Law University, Jodhpur. He may be contacted at email@example.com.)
Cite as: Kartik Agarwal, ‘Are the Indian Courts still following the Constitutional Principle of Dualism? Not Quite So’ (The RMLNLU Law Review Blog, 01 April 2020) <https://rmlnlulawreview.wordpress.com/2020/04/01/are-the-indian-courts-still-following-the-constitutional-principle-of-dualism-not-quite-so> date of access.