An important report on “India and international law” by the parliamentary committee on external affairs discussed how Indian courts have dealt with international law. The committee observed that India follows the principle of “dualism”, that is, international law does not automatically get incorporated into the domestic legal regime.

What is the process?

An act of Parliament is necessary to transform international law into municipal law as recognised by Article 253 of the Indian Constitution.

However, the Supreme Court has digressed from the principle of dualism and moved towards monism by holding that customary international law (CIL), unless contradictory to domestic law, is part of the Indian legal regime even without an enabling legislation enacted by the Parliament. CIL refers to international law norms derived from a custom that is a formal source of international law.

India has indeed moved away from the principle of dualism towards monism by judicially incorporating not just CIL but also international treaties including those treaties that India has not signed.

What is SC’s stand?

• Even though the government has not adopted a legislation for it, the Supreme Court has held that customary international law (CIL) is part of the Indian legal framework unless it is contrary to domestic law.
• It was decided in Vellore Citizens Welfare Forum v. Union of India that CIL that is not adverse to municipal law is assumed to be integrated into India’s domestic law.
• In later rulings, such as Research Foundation for Science v. Union of India, this concept has been reaffirmed. The Supreme Court, citing the Vellore Citizen case, stated that the precautionary principle, a notion in environmental law, is a component of CIL and hence Indian law.

Positives

• CIL has been incorporated into domestic legal systems in most nations, therefore the Supreme Court’s decision is consistent with international practise.
• It gives the court the power to make the law progressive, especially when the administration and parliament fail to adopt legislation that turn a liberal international legal norm into domestic law due to ideological or political differences.

Challenges

• CIL is commonly taken for granted as being part of Indian law. The precautionary concept, for example, was quickly approved by the Supreme Court, but it has yet to gain widespread global recognition.
• SC, on the other hand, hasn’t always been consistent in adopting CIL. In the case of Mohamad Salimullah v. Union of India, despite the concept of nonrefoulement being part of CIL, the court declined to prohibit the repatriation of Rohingya refugees to Myanmar.
• It violates democratic principles and results in a democratic deficit.
• Because judicial integration of international law is a breach of the separation of powers, and the court has taken over the right of Parliament, According to the committee, this might become a point of disagreement between the court and the other state institutions.

Way forward

• By judicially embracing not only CIL but also international treaties, even those that India has not ratified, India has moved away from the idea of dualism and toward monism.
• The Committee advises the executive to endeavour to address the gap in domestic legislation on customary international law by developing sufficient domestic law.
• There are two elements that must be met in order for a provision to be considered as a binding customary norm under international law. The first is that the state does it, and the second is that it is a legal opinion (belief that the custom is part of the law). Before adopting the CIL into domestic law, the Supreme Court must complete this study.

How to structure

1. Give an intro about how India follows various international laws with example
2. Describe the process followed by both government and judiciary
3. Mention any recent developments in this regard
4. Conclude

Reference:

1. https://indianexpress.com/article/opinion/columns/how-india-has-approached-customary-international-law-7716742