1. Introduction
The emphasis on European contributions to the development of modern international law tends to overshadow those of other states and entities to the evolution of norms relating to the conduct of states. Many global societies outside Europe, however, developed norms defining the contours of the state, thereby extending its scope to diverse legal relationships.Footnote 1 For example, certain norms regulating state conduct were in vogue on the Indian subcontinent from early times and these were strictly adhered to.Footnote 2 The idea of sovereignty distinguished the origin of European notions of international law from others, and it dominated global affairs for centuries.Footnote 3 Much later, the end of Second World War brought significant and far-reaching changes in the composition and evolution of the international community, with scores of new states joining it. These new states hoped for the creation of a more equitable and egalitarian world order.Footnote 4 The realization of such an order was not easy. At the other end of the scale, the establishment of a viable domestic legal structure that would effectively deal with varied internal political and socio-economic tensions was also an enormous challenge to these new states. Reformulation of the colonial legal structures inherited by these states from their previous regimes was simply not feasible. Accordingly, these new states continued with the existing legal structures, hoping to transform them gradually. The features of the Indian legal system, as it exists today, are essentially a British legacy. While the structures of Indian courts retained this colonial legacy, the response of the political establishment of the new India towards international law was anti-colonial. In this setting, India resisted acceptance of certain international legal norms in whose formulation it had had no role to play. Joining with other Asian and African countries, India sought to question the legality of some of the basic principles of international law, and consistently argued that it in essence remained at the periphery of the international legal system.Footnote 5
The British and other European powers came to India armed with their specific notions of law and justice. They firmly believed that their idea of justice was superior to the native legal structures. These notions of superiority, however, have been disputed, for these European powers, formally and on an equal footing, were dealing with another well-developed legal system. The first British and European settlements established in India during the seventeenth century, for instance, were allowed ‘by leave of a regularly established government, in possession of the country, invested with the rights of sovereignty, and exercising its powers’.Footnote 6 The native Indian legal system was with the passage of time gradually transformed into a British legal system. The courts were, accordingly, established based on British laws, slowly dislodging the Indian way of dispute settlement.Footnote 7
The Indian Supreme Court, whatever its form and jurisdiction, was established in 1773.Footnote 8 The British legal system and the courts established under that system treated local Indians and the British differently. It took another century and a half to introduce some kind of procedural and substantive equality into the Indian court structures. The Government of India Act, 1935, formally established a seemingly more egalitarian Federal Court, a predecessor of the present Indian Supreme Court.Footnote 9 This Federal Court had a defined jurisdiction. It primarily had exclusive jurisdiction over any dispute between the Federation and other provincial units, or any dispute that existed between provincial units inter se. Appeals lay to the Federal Court from any high court in British India if that court certified that the case involved a substantial question of law as interpreted by the Government of India Act, 1935.Footnote 10 There was no specific reference to international law in this colonial enactment. The Indian Supreme Court had its first formal encounter with international law immediately after its independence, when it had to decide the constitutional validity of executive action initiated for the purpose of territorial adjustments. Only in recent years has the higher judiciary in India increasingly invoked a diverse set of international legal norms, particularly in the field of human rightsFootnote 11 and the environment, to find new ways to achieve the ends of justice.Footnote 12
This study is of Indian courts, and it will examine the way in which they perceive international law. However, the main focus is limited to the analysis of the decisions of the Indian Supreme Court. International law, it should be noted, remains an exotic, yet persuasive, legal tool for Indian courts, and is usually invoked at the level of high courts and the Supreme Court, although the lower judiciary gets to invoke some elements of international law and foreign law at the procedural level.Footnote 13 The study identifies three distinct contexts, besides examining the context of the constitutional framework, through which Indian courts traversed and contributed to the development of international law. It should, further, be noted that this contextualization, categorized below, is typical of a developing country such as India as to how it seeks to perceive and internalize international law.
The first context develops from 1947 to 1970. During this phase India had to deal with an array of complex territorial and boundary issues and their resolution within its constitutional framework.
The second context emerges during the 1970s and continues into the 1990s. In this phase India, encountering intense socio-political and economic turmoil, faces several internal challenges. In response to this, one could see Indian courts taking up several environment and human rights-related cases.Footnote 14 Finding no suitable internal legal principle on which to fall back, the Indian Supreme Court invariably turned to international law and related sources. In this period we also see some measure of ambivalence in the approach of the Supreme Court to applying international law as a stand-alone source of domestic legal system. In other words, the Supreme Court would primarily base its decision on a domestic legal provision, with international law providing the added justification.
India's new economic agenda forms the backdrop for the analysis of the third context, which begins somewhere in the early 1990s and continues till this day. In this phase, although the environment and human rights continue to remain the primary source of contention, the Indian Supreme Court has moved into considering more complex international commercial and trade matters as well.Footnote 15
2. The constitutional context
The exclusive reference to international law in the constitution can be found in Article 51. This provision is hortatory in nature, as it exhorts the Indian state to make all possible endeavours to adhere to and respect international law. The Constitution of India is a comprehensive document containing provisions relating to fundamental rights granted to individuals and directions to the Indian state with regard to certain policy adherences. It also includes various aspects relating to institutional mechanisms. While fundamental rights are strictly enforceable, the policy directions to the state are not. The Indian Supreme Court, time and again, had to deal with the issue of the primacy of Part III (dealing with fundamental rights)Footnote 16 over Part IV (Directive Principles of State Policy) in cases of conflict. The Directive Principles of State Policy are, as the Court puts it, fundamental in the governance of the country, but may not necessarily override the fundamental rights.Footnote 17 Article 51, as part of the Directive Principles of State Policy, refers to international law. It states that
The State shall endeavour to (a) promote international peace and security; (b) maintain just and honourable relations between nations; (c) foster respect for international law and treaty obligations in the dealings of the organized peoples with one another; and (d) encourage settlement of international disputes by arbitration.
One may refer to the drafting history of this provision to understand Indian thinking at that time on international relations and international law. According to some commentators, the drafting of Article 51 was inspired by the Havana Declaration of 30 November 1939, adopted under the auspices of the International Labour Organization (ILO).Footnote 18 The declaration referred to the promotion of international co-operation and the imperative need to achieve international peace and security by the elimination of war as in instrument of national policy. It also referred to international law as the actual rules of conduct between governments and respect for treaty obligations in the dealings of organized peoples with one another. The similarity of the language between the declaration and Article 51 of the Indian Constitution is evident, and for this reason the prevailing assumption is that the formulation of Article 51 is based on the declaration. Just a few years before the formulation of Article 51, India had participated in the negotiations and adoption of the UN Charter.Footnote 19 Thus some imprints of the language of the Charter could also be seen in the formulation of Article 51.
The initial draft of what was to become Article 51 had a more definitive language.Footnote 20 The language of the final text was a watered-down version. These changes can be addressed briefly. The phrase ‘the State shall’, for example, became ‘the State shall endeavour to’. The reference to international law as the ‘firm establishment of the understandings of international law’ was reduced to ‘foster respect for international law and treaty obligations’. The phrase ‘elimination of war as an instrument of national policy’ that had appeared in the original draft was completely deleted.
All these changes and deletions suggest that India had perhaps anticipated future bitter engagements with some of its neighbours. The incursions into Kashmir followed by a skirmish in 1948 must also have had their effect on this drafting exercise. The Kashmir imbroglio, the sharing of Indus waters, and other territorial claimsFootnote 21 by its neighbours contributed to the moderation of this provision. Pakistan constantly advocated the judicial settlement of all these issues, while India, on the other hand, was totally opposed.Footnote 22 On both Kashmir and sharing the Indus waters, India had preferred negotiated settlements. It was even prepared to go for arbitration rather than a binding judicial settlement. The inclusion of clause (d) in Article 51, referring to India's commitment to encouraging ‘settlement of international disputes by arbitration’ as one of its stated policies should be seen in this context. However, there were strong reservations about this reference to settling disputes through arbitration.Footnote 23
This also explains why India sought to place this reference to international law and other related issues in Part IV of the constitution. International legal norms are not directly enforceable within India sans appropriate domestic legislation giving effect to these norms.Footnote 24 Despite this, Indian courts have largely succeeded in opening new windows to welcome international legal norms through creative interpretative techniques, aligning it, for example, with fundamental rights. This combination of fundamental rights and international legal norms has, in fact, produced an exemplary and potent body of jurisprudence, expanding in the process the scope and application of certain norms relating to human rights and the environment. It should be noted that the scope of Article 51, as its language suggests, is limited. The framers of the Indian Constitution, for practical reasons and also for the reasons stated above, injected a language into Article 51 that seems to work within the realm of possibilities.
While Article 51 of the constitution provides the substantive reference to international law, there are other procedural provisions which concern treaty-making.Footnote 25 The Indian constitutional scheme vests power and authority with the executive to conclude a treaty, while clearly demarcating a line between the formation of a treaty and its performance.Footnote 26 In recent years this dual responsibility of the executive to conclude and to implement the treaties has become a contentious issue in India.Footnote 27 For implementation is linked to Article 253 of the constitution that places power in the parliament ‘to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decisions made at any international conference, association or other body’.
Article 253 could be regarded as articulating a ‘transformation doctrine’, essentially a positivist–dualist position.Footnote 28 However, the emerging case law from the Indian Supreme Court in recent years seems to favour the doctrine of ‘incorporation’.Footnote 29 This changeover happened in the UK courts in 1977 with the decision of the Court of Appeal in Trendtex Trading Corporation v. Central Bank of Nigeria. In Gramophone Company of India Ltd v. Birendra Bahadur Pandey and Others (hereinafter Gramophone case)Footnote 30 the Indian Supreme Court, while referring to the Trendtex decision,Footnote 31 stated, ‘Two questions arise, first, whether international law is, of its own force, drawn into the law of the land without the aid of a municipal statute and, second, whether so drawn, it overrides municipal law in case of conflict’. If the municipal law conflicts with international law, the Court further noted that
[T]he sovereignty and the integrity of the Republic and the supremacy of the constituted legislatures in making the laws may not be subjected to external rules except to the extent legitimately accepted by the constituted legislatures themselves. The doctrine of incorporation also recognizes the position that the rules of international law are incorporated into national law and considered to be part of the national law, unless they are in conflict with an Act of Parliament. Comity of Nations or no, Municipal Law must prevail in case of conflict. National Courts cannot say yes if Parliament has said no to a principle of international law. National Courts will endorse international law but not if it conflicts with national law.Footnote 32
In Vishaka and Others v. State of Rajasthan and Others Footnote 33 the Indian Supreme Court appeared to have moved from transformation doctrine to incorporation doctrine. In this case the Court stated inter alia that ‘Any International Convention not inconsistent with the fundamental rights and in harmony with its spirit must be read into these provisions to enlarge the meaning and content thereof, to promote the object of the constitutional guarantee.’ While the English courts moved from transformation to incorporation doctrine with regard to the implementation of customary international law, the Indian Supreme Court, on the other hand, seemed to have moved a step further by taking into account the norms as embodied in the international conventions.Footnote 34 Indeed, some of these norms incorporated in the international conventions are customary norms, and the Court found, prima facie, no difficulty in accepting them, albeit with certain reservations.
It is, however, not yet clear what position Indian courts, specifically the Supreme Court, would take if a domestic norm conflicts with a customary norm of international law.Footnote 35 In Additional District Magistrate, Jabalpur v. Shivakant Shukla Footnote 36 the Supreme Court noted, after referring to several authorities, that
[I]f there be a conflict between the municipal law on one side and the international law or the provision of any treaty obligations on the other, the courts would give effect to municipal law. If, however, two constructions of the municipal law are possible, the court should lean in favour of adopting such construction as would make the provisions of the municipal law to be in harmony with international law or treaty obligations.
Even in later cases relating to the protection and preservation of the environment, the Court kept the door of ‘consistency’ of customary international law with municipal law open. Unlike the English courts, the Indian Supreme Court is not yet ready to grant customary international law any primacy over municipal law in case of conflict. In Vellore Citizens Welfare Forum v. Union of India and Others Footnote 37 the Court, referring to the ‘precautionary principle’ and the ‘polluter pays principle’ as part of the environmental law of the country, stated,
Even otherwise, once these principles are accepted as part of the Customary International Law there would be no difficulty in accepting them as part of the domestic law. It is almost accepted proposition of law that the rules of Customary International Law which are not contrary to the municipal law shall be deemed to have been incorporated in the domestic law and shall be followed by the Courts of Law.Footnote 38
The reasoning of the English courts in accepting customary norms as part of the municipal system without looking for any transformation needs consideration when looking to see whether Indian courts would accept this radical position. The reasoning, in fact, takes into account the nebulous and complex nature of international law and its formation. The primary reason for this change was rooted in the idea that the courts could not otherwise recognize changes in the norms of international law. The Trendtex decision states, inter alia, that ‘it is the nature of international law and the specific problems of ascertaining it which create the difficulty in the way of adopting or incorporating or recognizing as already incorporated a new rule of international law’.Footnote 39 The Indian Supreme Court has yet to take into account the complexity of sourcing correct and updated trends in international law on a continuing basis. The period taken for the formative process of international legal norms through state practice is becoming increasingly shorter. In addition to this, the subject matter being dealt with by international law is also becoming increasingly diverse and complex. Despite this, the observations of the Indian Supreme Court in several cases indicate that there is still some hesitancy in recognizing prima facie the legality and applicability of customary norms of international law within domestic legal structures. The Court continues to stick to the requirement of ‘consistency’ of customary international law with the municipal law.Footnote 40
3. The territorial context: 1947 to 1970
The relationship between Articles 51 and 253 was first examined substantively by the Indian Supreme Court in Maganbhai Ishwarbhai Patel v. Union of India and Another (hereinafter Maganbhai).Footnote 41 The Supreme Court dealt, albeit briefly, with four cases that preceded Maganbhai in examining this relationship. That the subject matter of these four cases containing elements of international law related to the aspects of determination of boundaries was no accident. As stated above, in its first two decades of existence the Indian government was burdened with complex territorial and boundary negotiations as a consequence of partition of the subcontinent. The implementation processes that were the outcome of some of these negotiations were challenged before the Indian courts by the affected Indian citizens. The important question was whether the territory could be ceded to another country through an executive decision or whether it should be done through a constitutional amendment. The adjustment of an undefined boundary through marking was regarded as something that could be effected through an executive act.Footnote 42 The adjustment of the boundary or territory pursuant to an order of the arbitral tribunal was regarded as a ceding of the territory, necessitating a constitutional amendment.Footnote 43 In these cases, decided immediately after India gained independence, the important issue related to the preservation of its sovereign identity vis-à-vis its neighbours. In one case that was to decide the extent of Indian occupation of Goa, issues related to the applicability of the 1949 Geneva Conventions and the consequent applicability of Article 51.
The earliest case was Midnapore Zamindary Co. Ltd. v. Province of Bengal and Others. Footnote 44 The CourtFootnote 45 in this case noted that ‘disputes as to boundaries between two independent States cannot be the subject of inquiry of municipal courts exercising jurisdiction in either State’. This case was followed by In re The Berubari Union and Exchange of Enclaves Footnote 46 (hereinafter Berubari I). Berubari I was a reference by the president of India to the Indian Supreme Court on certain questions concerning the transferring to East Pakistan (now Bangladesh) of the Berubari Union and the exchange of certain enclaves, pursuant to an agreement concluded between the prime ministers of India and Pakistan. The government of India argued that this agreement between two prime ministers ‘ascertained and delineated the exact boundary and did not involve alteration of territorial limits of India or alienation or cession of Indian Territory’.Footnote 47 The government of India further argued that this agreement between two prime ministers could be ‘implemented by executive action alone without Parliamentary legislation whether with or without a Constitutional amendment’.Footnote 48
The Court, however, did not agree with the contention that it was the ascertainment of the boundary between the two countries. The Court further noted that there was ceding of territory pursuant to an order of the tribunal duly constituted by both states. This was not merely a marking of the boundary. The Court concluded that in order to cede the Berubari Union an amendment of the constitution was necessary.Footnote 49 Following this case, the Indian Supreme Court in Ramkishore Sen and Others v. Union of India,Footnote 50 also known as Berubari II, again had to deal with the question of the transfer of a small portion of territory to East Pakistan. The Court, after considering the facts of the case, came to the conclusion that a constitutional amendment was not necessary to transfer or readjust some of the territories in the present case.
The Maganbhai obiter dicta concerning both Berubari I and Berubari II should be noted. The Supreme Court stated, inter alia,
Ordinarily an adjustment of a boundary which International Law regards as valid between two Nations, should be recognized by the Courts and the implementation thereof can always be with the Executive unless a clear case of cession is involved when Parliamentary intercession can be expected and should be had. This has been the custom of Nations whose Constitutions are not sufficiently elaborate on this subject.Footnote 51
The ratio of Maganbhai sums up the scope of executive order that could implement and determine the relationship between Articles 51 and 253, when it stated, inter alia, that ‘The decision to implement the Award by exchange of letters, treating the Award as an operative treaty after the boundary has been marked in this area, is within the competence of the Executive wing of Government and no Constitutional amendment is necessary.’ In brief, with this decision in Maganbhai the Indian Supreme Court appeared to overrule its earlier view in Berubari I that the executive cannot implement an arbitral award to adjust a territory without parliamentary approval.
The fourth case, Rev. Mons. Sebastiao Fransisco Xavier Dos Remedios Monteiro v. The State of Goa,Footnote 52 brought before the Supreme Court the issue of annexation of Goa in 1961 and its after-effects. The question of nationality was an important issue.Footnote 53 The argument was that India was an occupying power under the 1949 Geneva Conventions and it had certain obligations pursuant to that status. India argued that ‘by occupation is meant occupation by armed forces or belligerent occupation and occupation comes to an end by conquest followed by subjugation’.Footnote 54 The Supreme Court noted that ‘A territory is considered as occupied when it finds itself in fact placed under the authority of a hostile army.’Footnote 55 The Court, accordingly, had to answer the question of whether India continued to be an occupying power, and it noted that ‘If cession after defeat can create title, occupation combined with absence of opposition must lead to the same kind of title.’Footnote 56 The Court pointed out that once the occupation ceases, the protection also ceases. In this case the annexation of Goa ceased within a few hours, and accordingly the Court held that the occupation also ceased the moment annexation was over.Footnote 57
During this phase the Supreme Court had to deal with limited issues concerning international law. Adjustment of the territory and nationality were the key elements. The Court predictably dealt with these issues within its constitutional mandate.
4. The socio-economic context: 1971 to 1990
In this phase the courts moved into considering the legality of varied socio-economic policies adopted by the Indian government. These policy issues were examined by the higher judiciary within the parameters of the constitution linking it to certain basic international legal principles primarily in the field of human rights and the environment. The territorial and boundary issues ended almost with the first phase itself, although some issues concerning migration of people across the borders would surface in a different form at a later phase.Footnote 58 In this phase, the Supreme Court through several landmark cases began to widen the ambit of personal freedoms by linking it to international legal norms specifically in the field of human rights.Footnote 59 The Court would source international legal norms or other foreign legal elements to supplement existing domestic norms. A survey of Supreme Court cases in this phase shows that India vigorously pursued its developmental policies, albeit with halting steps.Footnote 60
At the political level, India seemed to be taking a more pragmatic view of itself and its role in international relations. The colonial context also appears to be receding into the background. Some important decisions of the Supreme Court delivered during this phase and providing a new direction for the treatment of international legal norms within the Indian legal system are briefly considered below.
In Additional District Magistrate, Jabalpur v. Shivakant Shukla (hereinafter ADM, Jabalpur)Footnote 61 the Supreme Court amplified the scope of Article 21 of the Indian constitution by referring to Articles 8Footnote 62 and 9Footnote 63 of the Universal Declaration of Human Rights (UDHR). This was one of the earliest cases, decided in 1976, that sought to link fundamental freedoms and human rights. It dealt with the issue of personal liberty at a time when this freedom was taken away by the executive through a Presidential Order under Article 359. The Court then referred to the UDHR to amplify the provisions of personal liberty and held that it cannot be withheld, even during the worst of times. The Court stated,
While dealing with the Presidential Order under Article 359(1), we should adopt such a construction as would, if possible, not bring it in conflict with the above Articles 8 and 9. From what has been discussed elsewhere, it is plain that such a construction is not only possible, it is also pre-eminently reasonable. The Presidential Order, therefore, should be so construed as not to warrant arbitrary arrest or to bar right to an effective remedy by competent national tribunals for acts violating basic right of personal liberty granted by law.Footnote 64
The 1980 case of Jolly George Varghese and Another v. The Bank of Cochin Footnote 65 typically represents some of the emerging linkages between domestic procedural law and human rights. It also, in one sense, shows the creative use of an international legal norm to amplify the ambit of human rights in the context of an individual plight in the peculiar conditions of a developing country. According to the Court, the case involved
a profound issue of constitutional and international law and offers a challenge to the nascent champions of human rights in India whose politicized preoccupation has forsaken the civil debtor whose personal liberty is imperilled by the judicial process itself, thanks to Section 51 (Proviso) and Order 21, Rule 37, Civil Procedure Code.Footnote 66
The Court further noted and framed the issue in the following way: ‘From the perspective of international law the question posed is whether it is right to enforce a contractual liability by imprisoning a debtor in the teeth of Article 11 of the International Covenant on Civil and Political Rights’.Footnote 67 The Court posed the question whether it would be a fair procedure to deprive a person of his personal liberty merely because he had not discharged his contractual liability in the face of the constitutional protection of life and liberty. The Court, however, underscored difficulty in reconciling the international legal principle as embodied in Article 11 of the International Covenant on Civil and Political Rights (ICCPR) with provisions of municipal law. It said as much when it noted,
Even so, until the municipal law is changed to accommodate the Covenant what binds the Court is the former, not the latter . . . From the national point of view the national rules alone count . . .With regard to interpretation, however, it is a principle generally recognized in national legal system that, in the event of doubt, the national rule is to be interpreted in accordance with the State's international obligations.Footnote 68
The 1984 decision of the Supreme Court in the Gramophone caseFootnote 69 continues to be one of the authoritative restatements of its position concerning the applicability of international law within the domestic sphere. It elaborates on the theoretical and practical aspects of the operation of ‘transformation’ and ‘incorporation’ doctrines and other sources of international law dealing with this issue.
The Court invariably had to look for specific international legal norms to arrive at a decision in this case, as the issue concerned the right of a landlocked state to the innocent passage of goods across the soil of another state. Surveying various sources and authorities, the Court noted that there were divergent views on this issue, one supporting it as an inherent right of transit across neighbouring countries, the other saying that these rights were not principles recognized by international law but arrangements made by sovereign states. The result of the lack of unanimity, the Court further noted, had been that ‘the landlocked countries have to rely on bilateral, regional or multilateral agreements for the recognition of their rights. The very existence of innumerable bilateral treaties . . . raises a presumption of the existence of a customary right of transit.’Footnote 70
Referring to the process of codification under international law, the Court discussed the entire issue in the context of the 1965 Convention on Transit Trade of Land-Locked States, to which both India and Nepal were parties. Besides this, the Court also referred to various international conventions relating to copyright and the Indian legislation on copyright to arrive at the correct interpretation of the word ‘import’, and it concluded that
[T]he word ‘import’ in Sections 51 and 53 of the Copyright Act means ‘bringing into India from outside India’, that it is not limited to importation for commerce only but includes importation for transit across the country. Our interpretation, far from being inconsistent with any principle of international law, is entirely in accord with International Conventions and the Treaties between India and Nepal. And that we think is as it should be.Footnote 71
The Gramophone case underscored the difficulties in sourcing international law in the absence of a domestic norm to arrive at a decision. However, a survey of cases during this phase shows that the Supreme Court adopted a more interactive approach to international law. The role of a sensitive and proactive judiciary in attempting to reach out to the wider world also needs to be noted and perhaps needs separate consideration. Leaving aside territorial issues, several key principles of international law, even though as persuasive tools, enter the ambit of discussion in various decisions. In the next phase we could see the Court becoming more proactive in applying several emerging and complex international legal norms.
5. The development context: 1991 and beyond
The decade of the 1990s was crucial for India as it embarked on a new economic agenda. This change in economic policy also seems to have had an impact, somewhat subtly, on the courts. Although in some instances the intervention of the Court had helped to bring back a semblance of orderliness into the working of the various socio-political structures, in several others it had taken a view in conformity with new development agenda. It is possible to discern an increase in the number of diverse and complex cases with international law elements. Besides environment, human rights, and gender-related issues, a brief survey lists several cases whose subject matter related to international trade, arbitration agreements, double taxation agreements, and other related issues. This phase also has cases that dealt with issues concerning terrorism, the definition of terrorism, the rights of the child, extradition matters,Footnote 72 and issues relating to migration. In one case, aggression was the issue. In G. Basi Reddy v. International Crop Research Institute and Another Footnote 73 the issue related to the implementation through domestic legislation of the UN Convention on Privileges and Immunities.
A survey of the environment cases of the Indian Supreme Court shows that even in the absence of comparable domestic norms, the Court continued to accept certain emerging norms of international law as part of the law of the land. In The Vellore Citizens Welfare Forum v. Union of India and Others Footnote 74 the Court examined in detail the concept of ‘sustainable development’. In Karnataka Industrial Areas Development Board v. Sri C. Kenchappa and Others Footnote 75 the Court dealt with issues concerning environmental degradation and its consequences. References also should be made to Andhra Pradesh Pollution Control Board v. M. V. Nayudu Footnote 76 and Narmada Bachao Andolan v. Union of India. Footnote 77 In M. C. Mehta v. Kamal Nath Footnote 78 the Supreme Court dealt with public trust doctrine. The public trust doctrine was reiterated in Intellectual Forum v. State of Andhra Pradesh.Footnote 79
After considering the developments in the field of international environmental law, as outlined above, the Court had no hesitation in holding that the concept of sustainable development had been accepted as a part of customary international law although its salient features have yet to be finalized by international law jurists.Footnote 80 This statement by the Court raises several key issues. First, it seems to be oblivious to the fact that the process of the formation of customary international law is usually a long and arduous one. Second, the customary norms under international law are formulated by consistent state practice rather than by the writings of the jurists, although their writings will have lot of persuasive value. The Court, however, had no hesitation in holding that
The precautionary principle and the polluter pays principle have been accepted as part of the law of the land. Article 21 of the Constitution of India guarantees protection of life and personal liberty . . . Even otherwise once these principles are accepted as part of the Customary International Law there would be no difficulty in accepting them as part of the domestic law.Footnote 81
A caveat to this statement comes in the next sentence, when the Court says, ‘It is almost accepted proposition of law that the rule of Customary International Law which are not contrary to the municipal law shall be deemed to have been incorporated in the domestic law and shall be followed by the Courts of Law.’Footnote 82 This could be regarded as the ‘final frontier’ for the Indian courts, and has been the consistent position of the Indian Supreme Court for the last six decades.
In this phase the concerns of the Court with regard to the environment shift somewhat towards development. We could consider the case of N. D. Jayal and Another v. Union of India and Others,Footnote 83 wherein the petitioners were seeking the intervention of the court concerning the safetyFootnote 84 and environmental aspects of the Tehri dam,Footnote 85 a dam being built in a seismic zone in the Himalayan region. The Court refers to the sustainable development debate, and goes on to add something which amply shows the ambivalence of the Court to the emerging economy with the new economic agenda firmly in place. Consider the following statement of the court, which seems like an attempt to reconcile two opposite views:
The right to development cannot be treated as a mere right to economic betterment or cannot be limited to a misnomer for simple construction activities. The right to development encompasses much more than economic well being and includes within its definition the guarantee of fundamental human rights. The ‘development’ is not related only to the growth of GNP . . . It is an integral part of human rights. Of course, construction of a dam or a mega project is definitely an attempt to achieve the goal of wholesome development. Such works could very well be treated as an integral component for development.
In this case the Court examined each of the components of the conditional clearance, including (a) catchment area treatment; (b) rehabilitation; (c) command area development; (d) flora and fauna; (e) water quality maintenance; (f) disaster management; and (g) creation of a new Bhagirathi Basin Management Authority. After examining these aspects, the majority decision of the Court pointed out that the petitioners had disputed ‘the extent of compliance only and not that there is no compliance at all’. The majority decision found that there was compliance, although with certain lapses. According to the Court, these lapses in compliance could be taken care of by monitoring agencies.Footnote 86
A similar pattern could be seen in Essar Oil Ltd v. Halar Utkarsh Samiti and Others. Footnote 87 The Court first outline various principles of the Stockholm Declaration to sustain humanity and its environment. While emphasizing the need to balance economic and social needs, on the one hand, with environment considerations, on the other, the Court stated,
Indeed, the very existence of humanity and the rapid increase in the population together with consequential demands to sustain the population has resulted in the concreting of open lands, cutting down of forests, the filling up of lakes and pollution of water resources and the very air which we breathe. However, there need not necessarily be a deadlock between development on the one hand and the environment on the other. The objective of all laws on environment should be to create harmony between the two since neither one can be sacrificed at the altar of the other.Footnote 88
The Court interpreted section 29 of the Wildlife (Protection) Act, 1972, and sought to answer the question whether it could be stated that the laying of pipelines through a sanctuary necessarily results in the destruction of wildlife. The Court, considering the legal position in the United Kingdom and other countries, noted that it would ultimately be a question of fact to be determined by experts in each case, and accordingly asked the state government to obtain an environmental impact report from expert bodies. It also sought an environmental management plan. The Court also laid emphasis on transparency and sharing of information with those who were affected by this decision.
From the environment to human rights the approach of the Supreme Court, as one can see, has been changing, and more emphasis is being placed on socio-economic parameters. As discussed earlier, in Vishaka and Others v. State of Rajasthan and Others Footnote 89 the Supreme Court focused its attention on ‘societal aberration and assisting in finding suitable methods for realization of the true concept of “gender equality”; and to prevent sexual harassment of working women in all work places through judicial process, to fill the vacuum in existing legislation’.Footnote 90 The Court stated, inter alia, ‘There is no reason why these international conventions and norms cannot, therefore, be used for construing the fundamental rights expressly guaranteed in the Constitution of India which embody the basic concept of gender equality in all spheres of human activity.’Footnote 91 The Court decided to specify guidelines and norms for due observance at all workplaces or other institutions until legislation was enacted for the purpose.
Even the issues relating to terrorism have taken centre stage during this phase of the Court. The Supreme Court, in particular, had occasion to deal with certain legal and definitional aspects of terrorism. The thinking of the Court concerning ‘international terrorism’ and ‘human rights’ is instructive. In People's Union for Civil Liberties and Another v. Union of India,Footnote 92 the constitutional validity of certain provisions of the Prevention of Terrorism Act, 2002 (hereinafter POTA), were challenged. The obiter of the Court reflects the emerging new realities.Footnote 93 Recognizing terrorism as a challenge to the whole community of civilized nations, the Court noted that the activities of terrorists in one country might take on a transnational character, as they carried out attacks across one border, received funding from private parties or a government across another, and procured arms from multiple sources. Referring to domestic and international aspects of terrorism, the Court referred to international dimensions of terrorism.Footnote 94
The Court also referred to the Report of the Policy Working Group on the United Nations and Terrorism,Footnote 95 which urged the global community to concentrate on a triple strategy to fight terrorism. These strategies, as noted by the Court, were (i) to dissuade disaffected groups from embracing terrorism; (ii) to deny groups or individuals the means to carry out acts of terrorism; and (iii) to sustain broad-based international co-operation in the struggle against terrorism. Based on these, the Court averred,
Therefore, the anti-terrorism laws should be capable of dissuading individuals or groups from resorting to terrorism, denying the opportunities for the commission of acts of terrorism by creating inhospitable environment for terrorism and also leading the struggle against terrorism. Anti-terrorism law is not only a penal statute but also focuses on pre-emptive rather than defensive State action.Footnote 96
On the issue of balancing within the constitutional mandate the protection and promotion of human rights and the combating of terrorism, the Court stated,
If human rights are violated in the process of combating terrorism, it will be self-defeating. Terrorism often thrives where human rights are violated, which adds to the need to strengthen action to combat violations of human rights. The lack of hope for justice provides breeding grounds for terrorism. Terrorism itself should also be understood as an assault on basic rights. In all cases, the fight against terrorism must be respectful to human rights. Our Constitution laid down clear limitations on State actions within the context of the fight against terrorism. To maintain this delicate balance by protecting ‘core’ Human Rights is the responsibility of Court in a matter like this. The constitutional soundness of POTA needs to be judged by keeping these aspects in mind.Footnote 97
The Court upheld the constitutional validity of POTA. In Madan Singh v. State of Bihar,Footnote 98 the Supreme Court was again concerned with the definition of terrorism. The Court noted that finding a definition of terrorism had haunted countries for decades and it dealt elaborately with that issue.Footnote 99
The incursion of illegal migrants into India from the bordering states was the issue in Sarbananda Sonowal v. Union of India and Another. Footnote 100 The Court considered various status reports on the influx of migrants into the state of Assam and also the status reports on the implementation of the Illegal Migrants (Determination by Tribunals) Act (Act No. 39 of 1983) (IMDT Act). The consequences of such an influx were also considered by the Court. Taking into account the entire issue in its historical context, it considered the implementation of various accords concluded between the government of India and the government of Assam on one side and the agitating or affected parties on the other. The legal effects of such accords and their implications on the demography of Assam were also considered by the Court. It also considered the plea that the foremost duty of the central government was to defend the borders of the country, prevent any trespass, and make the life of the citizens safe and secure.
On the definition of ‘aggression’, the Court surveyed a whole range of sources and also referred to various international legal scholars, the Charter of the United Nations, the Work of the International Law Commission and the UN Special Committee on Aggression, and noted that ‘a consensus was arrived at and an agreed definition was approved by the United Nations General Assembly on 12 April, 1974 vide Resolution No. 3314 (XXIX)’. The Court further noted the different facets of aggression by referring to ‘ideological aggression’ and also ‘the promotion of the propaganda of fascist–Nazi views, racial and national exclusiveness, hatred and contempt for other peoples’, and ‘indirect aggression, of intervention in another State's internal or foreign affairs’, including ‘direct or indirect incitement to civil war, threats to internal security, and incitement to revolt by the supply of arms or by other means’ and ‘economic aggression’.Footnote 101 On the issue of the deportation of aliens, the Court noted that they also possessed several rights and the procedure for their identification and deportation should be detailed and elaborate in order to ensure fairness to them.Footnote 102 The Court, inter alia, held that the provisions of the IMDT Act were ultra vires the Constitution of India.
In this phase several cases relating to the interpretation and application of bilateral double taxation avoidance agreements were also before the Supreme Court. This also shows the changing face of the Indian judiciary, which now considers legal issues ranging from international taxation to Internet domain names. Several foreign companies and establishments have increasingly had recourse to the Indian judicial system. We could briefly consider some of these important cases and the way in which, in these cases, the Supreme Court has treated the issues concerning international law, international trade, and economic law, including a few cases concerning intellectual property rights.
In Union of India v. Azadi Bachao Andolan (Movement for Preserving Freedom),Footnote 103 the Court had to deal with the legality of the investment patterns of certain foreign institutional investors (FIIs). These FIIs were based in Mauritius, taking advantage of the Indo-Mauritius Double Taxation Avoidance Convention, 1983 (DTAC). Relying on DTAC and other regulatory frameworks that flowed from the DTAC, they invested large amounts of capital in shares of Indian companies with expectations of making a profit by the sale of such shares without being subjected to tax in India.Footnote 104 These companies were registered or incorporated in Mauritius and their main purpose was to invest in the Indian share market, without being liable to be taxed. The petitioners, inter alia, argued that these companies were controlled and managed from countries other than India or Mauritius and as such they were not ‘residents’Footnote 105 of Mauritius and able to benefit from the DTAC.Footnote 106
The Court had to consider the scope and application of section 90 of the Indian Income Tax Act in relation to the DTAC with Mauritius. The Court dealt with the issue of exercise of fiscal jurisdiction by states and the complexities involved in moderating such a jurisdiction through bilateral tax treaties. The Court, in fact, outlined the rationale behind concluding tax treaties. It stated,
Every country seeks to tax the income generated within its territory on the basis of one or more connecting factors such as location of the source, residence of the taxable entity, maintenance of a permanent establishment and so on. A country might choose to emphasize one or the other of the aforesaid factors for exercising fiscal jurisdiction to tax the entity. Depending on which of the factors is considered to be the connecting factor in different countries, the same income of the same entity might become liable to taxation in different countries. This would give rise to harsh consequences and impair economic development. In order to avoid such an anomalous and incongruous situation, the Governments of different countries enter into bilateral treaties, conventions or agreements for granting relief against double taxation. Such treaties, conventions or agreements are called double taxation avoidance treaties, conventions or agreements.Footnote 107
The Court first dealt with the constitutional sources of executive authority in concluding a treaty. While noting that the power of entering into a treaty is an inherent part of the sovereign power of the state in the Indian context, the Court stated that
[M]aking of law under that authority would be necessary when the treaty or agreement operated to restrict the rights of citizens or others or modifies the law of the State. If the rights of the citizens of others which were justiciable were not affected, no legislative measure would be needed to give effect to the agreement or treaty.Footnote 108
According to the Court, tax treaties were in a different category. Section 90 of the Indian Income Tax Act, 1961 (ITA), accords primacy to these treaties as they
are intended to grant tax relief and not put residents of a contracting country at a disadvantage vis-à-vis other taxpayers, Section 90 of the Income-tax Act has been amended to clarify that any beneficial provision in the law will not be denied to a resident of a contracting country merely because the corresponding provision in the tax treaty is less beneficial.Footnote 109
Surveying the case law of various high courts in India, the Court concluded that judicial consensus in India had been that section 90 was specifically intended to enable and empower the central government to issue a notification for implementation of the terms of a double taxation avoidance agreement. When that happened, the Court further concluded, the provisions of such an agreement, with respect to cases where they apply, would operate even if inconsistent with the provisions of the Income Tax Act. The Court, while referring to the contention of the respondents that as per Article 265 of the Constitution no tax could be levied or collected except by authority of law, pointed out that section 90 was put on the statute book precisely to enable the executive to negotiate a DTAC and quickly implement it.Footnote 110
In Ishikawajma-Harima Heavy Industries Ltd. v. Director of Income Tax, Mumbai Footnote 111 the provisions of the India–Japan Double Taxation Avoidance Treaty were invoked. The notable feature of this tax case is that the appellant, a Japanese company, challenged the taxability of the offshore supply of equipment, materials, and offshore services under the Indian Income Tax Act and the India–Japan Double Taxation Avoidance Treaty.Footnote 112 There were several complex issues relating to the taxing of this Japanese company, which was operating in India with several other companies. The Supreme Court, accordingly, noted that
[I]f an income arises in Japan (contracting State), it shall be taxable in that country unless the enterprise carries on business in the other contracting State (India) through a permanent establishment situated therein. What is to be taxed is profit of the enterprise in India, but only so much of it as is directly or indirectly attributable to the permanent establishment. All income arising out of the turnkey project would not, therefore, be assessable in India, only because the assessee has a permanent establishment.Footnote 113
The Court concluded that while the ‘[g]lobal income of a resident . . . is subjected to tax, global income of a non-resident may not be. The answer to the question would depend upon the nature of the contract and the provisions of DTAA.’Footnote 114
Accordingly the Supreme Court held that ‘if services rendered by the head office are considered to be the services rendered by the permanent establishment, the distinction between Indian and foreign operations and the apportionment of the income of the operations shall stand obliterated’.Footnote 115 In another case, DIT (International Taxation), Mumbai v. Morgan Stanley & Co.,Footnote 116 the Supreme Court considered the interpretation and application of some provisions of the India–United States Double Taxation Avoidance Agreement.
In Satyam Infoway Ltd. v. Sifynet Solutions Pvt. Ltd,Footnote 117 the principal question, as noted by the Court, was whether Internet domain names were subject to the legal norms applicable to other intellectual property rights such as trademarks. The Supreme Court in Shen-Etsu Chemical Co. Ltd. v. M/s Aksh Optifibres Footnote 118 considered the issue of governing law in arbitration. Some important cases in the area of arbitration with some reference to international legal elements, specifically with regard to the appointment of arbitrators (as to the involvement of the courts either in an administrative or judicial capacity), the enforcement of arbitral awards, and the validity of the arbitration agreement should be noted.Footnote 119
A survey of cases in this phase shows the increasing number of references by the Court to foreign legal elements and also to the use of international legal norms to arrive at definitive conclusions. One can perceive the Court's attempts to locate itself in the global context, and the issues raised in the cases reflect this trend.
6. Conclusion
The focus of this study is broadly to decipher the approach of the Indian Supreme Court towards international law. The study proceeded on the assumption that the Indian court structure and the interpretative techniques have largely been influenced by the British legacy. While continuing with this legacy in the post-independent context, Indian courts have had recourse to various international legal principles. This examination has been accomplished within four different contextual parameters with specific timelines. Initially, the constitutional context explains the location and reference of international law within the Indian legal system and its interface with the domestic legal structures.
The territorial context considered four cases and all these four cases raised the core issue of boundary or territorial settlement concerning the new India that emerged as an independent state in 1947. In other words, immediately after its independence India had to settle its territorial claims with its neighbours. The question essentially was whether such boundary adjustments were done through executive order or through a constitutional amendment. The court held that if it were a simple adjustment of the boundary, a constitutional amendment would not be necessary. If it were not a simple adjustment, the Court clearly stated that an amendment to the constitution would be required. The first contextual parameter relating to territory had posed limited issues concerning international law.
The scope and reach of international law becomes a little more perceptible in the second contextual parameter, relating to the socio-economic context. A variety of legal issues, particularly with regard to the environment and human rights, appears in this phase. With the advent of a new economic agenda and faster growth prospects the cases in the third context belong to a different group of subject matters ranging from arbitration and taxation to child rights. One could also see foreign companies having recourse to the Indian Supreme Court, frequently with particular regard to economic matters. The reach and scope of the work of the Court in terms of international law and other related issues begin to expand.
Despite all this, the approach of the Indian Supreme Court to some of the key issues that define the relationship between international law and municipal law continues to be conservative. The sourcing of international law, specifically customary international law, is a critical issue. In various decisions, specifically concerning the environment and human rights, the linkages are usually with sustainable development, the precautionary principle, and others. In some of these cases the Court has not moved beyond a particular point and continues to repeat the same sources and arguments. The above examination shows that Indian courts perceive the necessity of international law as a persuasive tool. Accordingly, international legal norms are consistently creeping into the domestic legal arena in different forms. The Indian courts, specifically the Supreme Court, as one could assess from the Indian experience, seek to incorporate or give effect to international legal norms within the domestic sphere, albeit with a measure of caution. For the Indian courts the correct sourcing, identification, and interpretation of the constantly emerging international legal norms remain a challenge, and this challenge, indeed, arises from the very nature and the process of international lawmaking at the global level. In future, the Indian courts will have to find new approaches and an appropriate interpretative context to deal with the complexities of the relationship between international law and municipal law.
