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Thursday, May 19, 2022

How India has approached customary international law

🔴 Prabhash Ranjan writes: Supreme Court hasn't been consistent about the position of CIL in Indian law

Written by Prabhash Ranjan |
Updated: January 11, 2022 9:45:58 am
A report on “India and international law” by the parliamentary committee on external affairs was recently presented to the Lok Sabha. (File photo)

An important report on “India and international law” by the parliamentary committee on external affairs was recently presented to the Lok Sabha. Among other things, the report discusses 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. An act of Parliament is necessary to transform international law into municipal law as recognised by Article 253 of the Indian Constitution. However, the committee believes that 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. As regards customary norms, the Supreme Court in Vellore Citizens Welfare Forum v. Union of India held that CIL which is not contrary to the municipal law shall be deemed to have been incorporated in India’s domestic law. This principle has been affirmed in subsequent decisions. The apex court in Research Foundation for Science v. Union of India, relying on the Vellore Citizen case, declared that the precautionary principle, an environmental law concept, is part of CIL and thus part of Indian law.

Several facets of this judiciary-led transition from dualism to monism require elucidation. First, the apex court incorporating CIL as part of the domestic legal regime is consistent with the practice of other common law countries. However, the sticky part is the ease with which CIL is accepted as part of Indian law. For instance, the Supreme Court’s willingness to readily accept the precautionary principle as part of CIL flies in the face of international law debates where the acceptance of this principle as a customary norm remains contested. Determination of whether a particular provision indeed constitutes a binding customary norm under international law requires the double requirement of state practice (the actual practice of the states) and opinio juris (belief that the custom is part of the law). The apex court rarely conducts such an analysis.

Second, the apex court hasn’t been consistent in incorporating CIL. In a 2021 case, Mohamad Salimullah v. Union of India, the court appallingly refused to rule against the deportation of Rohingya refugees to Myanmar despite the principle of non-refoulment being part of CIL. The principle of non-refoulment prohibits a country from returning refugees to countries where they face a clear threat of persecution. But curiously the court did not incorporate this principle into Indian law.

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Third, international law-making is often critiqued for democratic deficit. Arguably, judicially incorporating international law without parliamentary scrutiny legitimises such a democratic deficit. Accordingly, judicial incorporation of international law is questioned because it amounts to the judiciary riding roughshod over the Parliament. The committee too feels that this could become a bone of contention between the judiciary and the other organs of the state.

Fourth, the bright side of judicial incorporation is the progressive development of law when the executive and the parliament for ideological or political persuasions fail to enact laws transforming a liberal international legal norm into domestic law. India’s spectacular failure to enact a refugee law incorporating the principle of non-refoulment is a classic example of this. The apex court squandered the terrific opportunity in the Mohamad Salimullah case to incorporate non-refoulment as part of the Indian legal regime.

The committee’s recommendation that the executive should take note of the vacuum in domestic legislation on customary norms in international law and develop adequate domestic laws is an important one. However, this should not mean expanding domestic law that rejects binding customary norms in international law. On the contrary, India should enact domestic laws that are harmonious with CIL. The judiciary, on its part, should demonstrate greater analytical rigour in interpreting and applying CIL as part of the Indian legal regime.

This column first appeared in the print edition on January 11, 2022 under the title ‘Erratic interpretation’.The writer is professor and vice dean at Jindal Global Law School, O P Jindal Global University. Views are personal

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