International Instruments and Their Absorption in Indian Laws

 

AUTHOR: SHIVANSHU KATARE

International law consists of rules and principles that govern the relations between sovereign states and other international actors. These rules and principles are codified in international treaties, conventions, and other agreements. India, as a sovereign state, participates in the formulation of these international instruments and is bound by them in various capacities. The incorporation and absorption of international instruments into Indian law are influenced by the country's constitutional provisions and legislative practices.

1. Nature of International Instruments

International instruments include treaties, conventions, declarations, agreements, protocols, and resolutions adopted by international organizations like the United Nations (UN), the World Trade Organization (WTO), and other specialized agencies. These instruments generally deal with areas such as:

• Human rights
• Environmental protection
• Trade and commerce
• Diplomatic relations
• Disarmament
• Maritime law
• Refugee rights

International instruments can be classified into two main categories:

1. Treaties and Conventions – Legally binding agreements between states or international organizations.
2. Declarations and Resolutions – Non-legally binding instruments adopted by international organizations, often in the form of a statement of principles or guidelines.

2. Indian Constitutional Framework and International Law

The relationship between international law and domestic law in India is governed by Article 51 of the Constitution, which is part of the Directive Principles of State Policy. This article encourages the state to promote international peace and security and foster respect for international law.

Article 51 reads:

• "The State shall endeavour to foster respect for international law and treaty obligations in the dealings of organized peoples with one another."

This provision reflects India’s commitment to aligning itself with international norms and principles, though it does not make international law automatically enforceable in Indian domestic law. Therefore, the issue of whether an international treaty or convention automatically becomes part of Indian law is determined by the domestic legislative process.

3. The Role of Parliament in Absorbing International Instruments

In India, international instruments are not automatically incorporated into domestic law by virtue of India's participation in international agreements. This is due to the dualist approach adopted by India concerning international law. According to this approach, international law must be explicitly adopted through legislation for it to have a binding effect domestically.

• Treaties and Conventions: International treaties, conventions, and agreements are negotiated by the Executive (usually the Ministry of External Affairs) and signed by the President of India. However, these agreements must be ratified by the Indian Parliament for them to be incorporated into Indian law. This is done by passing laws in accordance with the terms of the international instruments.

• Legislative Procedure: After a treaty is signed, the Indian government introduces a Bill in Parliament that incorporates the provisions of the treaty or convention into Indian domestic law. For example, the Covenant on Civil and Political Rights (ICCPR) was incorporated into Indian law through the Indian Penal Code (IPC) and the Criminal Procedure Code (CrPC).

• Presidential Assent: Once Parliament passes a law to incorporate an international instrument, the Bill is sent to the President for assent. After receiving assent, the law becomes part of Indian domestic legislation.

4. Incorporation of Major International Instruments into Indian Law

India has incorporated several international instruments into its domestic legal system, primarily through legislation. Some significant examples include:

1. The Universal Declaration of Human Rights (UDHR) (1948):

   • While the UDHR is a non-binding instrument, its principles have influenced Indian constitutional and legal provisions, especially regarding the Fundamental Rights guaranteed under Part III of the Constitution of India.
   • The Right to Life (Article 21) and Right to Equality (Articles 14-18) in the Indian Constitution reflect principles contained in the UDHR.

2. The International Covenant on Civil and Political Rights (ICCPR) (1966):

   • India ratified the ICCPR in 1979, which influenced several laws related to civil liberties, freedom of speech, and rights of arrested persons. For example, the Indian Penal Code (IPC), Criminal Procedure Code (CrPC), and Protection of Human Rights Act, 1993 align with the principles of the ICCPR.

3. The International Covenant on Economic, Social and Cultural Rights (ICESCR) (1966):

   • India ratified the ICESCR in 1979. This has influenced laws related to labor rights, education, and healthcare, such as the Right to Education Act (2009), which is based on the rights outlined in the ICESCR.

4. The Convention on the Elimination of All Forms of Racial Discrimination (CERD) (1965):

   • India ratified the CERD in 1968, which led to laws such as the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, to address discrimination and protect marginalized communities.

5. The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) (1979):

   • India ratified CEDAW in 1993, which led to the enactment of laws such as the Domestic Violence Act (2005), Maternity Benefits Act (1961), and Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013.

6. The Paris Agreement on Climate Change (2015):

   • India ratified the Paris Agreement, and in line with its commitments, has made significant strides in developing policies to mitigate climate change, such as the National Action Plan on Climate Change (NAPCC).

5. Constitutional and Judicial Challenges

While India has incorporated many international instruments, the absorption of international law into domestic law faces several challenges:

• Dualism vs Monism: India follows a dualist approach, which means that international treaties require legislation to be absorbed into domestic law, unlike countries following the monist approach, where international law automatically becomes part of national law.

• Judicial Interpretation: Indian courts have played a significant role in giving effect to international law, particularly in areas such as human rights and environmental protection. In cases like Vishaka v. State of Rajasthan (1997), the Supreme Court of India used the principles of CEDAW to lay down guidelines on sexual harassment at the workplace.

• Non-Enforceability of Non-Legally Binding Instruments: Many international instruments, such as declarations and resolutions, are not legally binding and cannot be directly enforced in Indian courts unless they are made part of domestic law through legislation.

• Conflicts between International and Domestic Laws: In cases where international law contradicts Indian domestic law, Indian courts typically prioritize national sovereignty and the Indian Constitution. For example, the Constitution of India allows for the non-implementation of international instruments if they conflict with domestic constitutional provisions.

6. Conclusion

The absorption of international instruments into Indian law reflects India's commitment to maintaining international peace, security, and cooperation. However, due to India’s dualistic approach, international treaties and conventions require legislative action before they become enforceable in domestic law. Over time, international instruments have significantly influenced Indian laws, especially in areas like human rights, environmental protection, and social justice. Despite challenges, the Indian judiciary continues to play an essential role in interpreting and giving effect to international obligations, ensuring that India’s laws align with global standards.