ENFORCEMENT OF INTERNATIONAL LAW IN THE INDIAN CONSTITUTION

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This article is written by Shreya Rai, Amity Law School, Noida, Uttar Pradesh, an intern under Legal Vidhiya

ABSTRACT

“We, the people of India, having solemnly resolved to constitute India into a Sovereign, Socialist, Secular, Democratic, Republic and to secure to all its citizens.

Justice, Social, Economic and Political;

Liberty of thought, expression, belief, faith and worship;

Equality of status and opportunity

And to promote among them all Fraternity assuring the dignity of the individual and the unity and integrity of the nation

In our constituent assembly this twenty sixth day of november, 1949, do hereby adopt, enact and give to ourselves this constitution. “

The enforcement of international law in the Indian Constitution is primarily governed by Article 51 of the Constitution, which sets forth the directive principle of state policy requiring the Indian government to foster respect for international law and treaty obligations in the conduct of its affairs. Although Article 51 is not legally enforceable in Indian courts, it reflects India’s commitment to the principles of international law and guides the government in its actions at the international level.

Furthermore, the Indian judiciary has recognized the importance of international law in its interpretation of fundamental rights guaranteed under the Constitution. The Supreme Court of India has held that international human rights norms can be used as interpretative tools to give meaning and effect to fundamental rights enshrined in the Constitution, especially in cases involving issues such as right to life, liberty, and dignity. The Indian Constitution also empowers the government to make treaties with foreign countries, which are binding upon India upon ratification and can be enforced in domestic courts. Treaties are considered part of Indian law and can be relied upon by individuals in Indian courts to seek remedies for violations of treaty obligations.

INTRODUCTION

In addition to Article 51, the Indian Constitution provides for the incorporation of international law into domestic law through the doctrine of “autochthonous adoption.” According to this doctrine, customary international law, which is accepted as law by the international community and is not in conflict with domestic law, is automatically incorporated into Indian law without the need for specific legislation.

The Indian Constitution also empowers the government to make treaties with foreign countries, which are binding upon India upon ratification and can be enforced in domestic courts. Treaties are considered part of Indian law and can be relied upon by individuals in Indian courts to seek remedies for violations of treaty obligations.

Moreover, the Indian Constitution recognizes the jurisdiction of international courts and tribunals, such as the International Court of Justice (ICJ), and provides for the settlement of international disputes through arbitration, conciliation, and other peaceful means.

However, it is important to note that the enforcement of international law in the Indian Constitution is subject to certain limitations, such as the doctrine of parliamentary sovereignty, which gives the Indian Parliament the authority to amend domestic law, including constitutional provisions, and the principle of sovereign immunity, which protects foreign sovereigns and their agents from lawsuits in Indian courts.

Overall, while the Indian Constitution recognizes the importance of international law and provides avenues for its enforcement in domestic courts, the practical implementation and enforcement of international law in India depend on various factors, including domestic legislation, judicial interpretation, and executive action, as well as the evolving dynamics of international relations. Furthermore, the Indian judiciary has recognized the significance of international law in the interpretation of fundamental rights guaranteed under the Constitution. The Supreme Court of India has held that international human rights norms can be used as interpretative tools to give meaning and effect to fundamental rights enshrined in the Constitution, especially in cases involving issues such as the right to life, liberty, and dignity. This shows that international law has a role in shaping the understanding of human rights in India’s legal system.

In conclusion, the Indian Constitution recognizes the significance of international law and provides for its incorporation, enforcement, and application in various ways. From the doctrine of autochthonous adoption of customary international law to the recognition of the jurisdiction of international courts, and the incorporation of treaties into domestic law, the Indian Constitution reflects India’s commitment to the principles of international law. Moreover, the judiciary’s interpretation of fundamental rights and the encouragement of respect for international law in the government’s conduct of affairs further highlight the role of international law in India’s legal system. However, limitations exist in the enforcement of international law in the Indian Constitution. Overall, international law holds a significant place in the Indian Constitution and plays a crucial role in shaping India’s legal system and its approach to international relations.

HISTORY OF INDIAN CONSTITUTION

The history of the Indian Constitution can be traced back to the early 20th century when the demand for self-rule and independence from British colonial rule gained momentum in India. The struggle for freedom from British rule led to various constitutional developments that eventually culminated in the adoption of the Constitution of India in 1950.

Demand for Self-Rule: The demand for self-rule in India started to gain momentum in the late 19th and early 20th centuries. The Indian National Congress (INC) was formed in 1885 as a political platform to advocate for the rights of Indians and eventually became the principal organization leading the struggle for independence.

Morley-Minto Reforms: In 1909, the British government introduced the Morley-Minto Reforms, which granted limited political representation to Indians. The reforms led to the creation of the Imperial Legislative Council, which had limited powers to make laws and discuss issues of public interest. However, these reforms fell short of meeting the aspirations of Indians for self-rule.

Montagu-Chelmsford Reforms: In 1919, the British government introduced the Montagu-Chelmsford Reforms, which expanded the scope of political representation for Indians. The reforms led to the introduction of the concept of “dyarchy,” which divided the powers of the government between the British-appointed Governor and the elected Indian ministers. The reforms also introduced a limited form of self-government at the provincial level.

Demand for Swaraj: The demand for “Swaraj” or self-rule became more vocal in the 1920s and 1930s, with leaders like Mahatma Gandhi advocating for non-cooperation and civil disobedience as means to achieve independence. The demand for Swaraj also led to the adoption of the “Purna Swaraj” (Complete Independence) resolution by the Indian National Congress in 1929, declaring the goal of achieving complete independence from British rule.

Round Table Conferences: In 1930, the British government invited Indian leaders to participate in the Round Table Conferences in London to discuss further constitutional reforms. However, the talks did not yield significant results, and the demand for complete independence remained the primary focus of the Indian leaders.

Government of India Act 1935: In 1935, the British government introduced the Government of India Act, which introduced significant constitutional reforms in India. The Act expanded the powers of the provincial governments and introduced a federal structure with separate powers for the central and provincial governments. However, the Act fell short of meeting the demands of Indians for complete independence.

Constituent Assembly and Constitution Making: In 1946, the British government accepted the demand for the formation of a Constituent Assembly to draft a constitution for India. The Constituent Assembly was elected in 1946, and its members included representatives from various political parties and regions. The Constituent Assembly worked for nearly three years to draft the Constitution of India, which was adopted on November 26, 1949, and came into effect on January 26, 1950, marking the birth of the Republic of India.

The Constitution of India is a comprehensive document that provides for a federal system of government, separation of powers, fundamental rights, and directive principles of state policy, among other provisions. It has been amended several times since its adoption to reflect the changing needs and aspirations of the Indian society. Today, the Indian Constitution serves as the supreme legal document that governs the functioning of the country and upholds the values of democracy, secularism, and rule of law.

DOMESTIC AND INTERNATIONAL LEGAL SYSTEM

Indian Legal System:

Sources of Law: The Indian legal system is based on a combination of various sources of law, including the Indian Constitution, legislation enacted by the Indian Parliament and state legislatures, judicial precedent, customary law, and personal laws of different communities.

Judiciary: The Indian judiciary is independent and has a hierarchical structure, with the Supreme Court of India as the highest judicial authority in the country. The judiciary in India has the power of judicial review and can interpret the Constitution and other laws, and also adjudicate disputes between parties.

Legal Framework: The Indian legal system covers a wide range of areas, including constitutional law, civil law, criminal law, family law, labor law, environmental law, intellectual property law, and more. The legal system in India is complex and has evolved over time through statutes, judicial decisions, and legal reforms.

Enforcement Mechanisms: The enforcement of laws in India is carried out by various agencies and authorities, including the police, executive branches of government, and the judiciary. The legal system provides for both civil and criminal enforcement mechanisms, and individuals or entities can seek redressal through courts or other dispute resolution mechanisms.

International Legal System:

Sources of Law: The international legal system is primarily based on treaties, conventions, customary international law, and general principles of law recognized by nations. International law is created through agreements among states, international organizations, and customary practices that are followed by states.

International Organizations: International organizations such as the United Nations (UN), International Court of Justice (ICJ), and World Trade Organization (WTO) play important roles in the international legal system. They establish norms, rules, and procedures that govern the relations between states and other international actors.

Treaties and Conventions: Treaties and conventions are binding agreements between states and are an important source of international law. States voluntarily enter into treaties and conventions, and they are expected to comply with their obligations under these agreements.

Enforcement Mechanisms: The international legal system does not have a centralized enforcement mechanism like domestic legal systems. However, states may resort to diplomatic, economic, or other means to enforce their rights and obligations under international law. International courts, such as the International Court of Justice (ICJ), can also hear disputes between states and provide judgments that are binding, though enforcement of such judgments may require the cooperation of the parties involved.

INTERACTION BETWEEN DOMESTIC AND INTERNATIONAL LAW

Treaties and Conventions: India is a party to numerous international treaties and conventions, and these international agreements may require implementation and enforcement within the Indian legal system. India may pass domestic legislation to give effect to its international obligations, and courts in India may also interpret and apply international law principles in domestic legal proceedings.

Customary International Law: Customary international law, which is based on consistent and general practice accepted as law by states, may also be relevant in the Indian legal system. Indian courts may consider customary international law in their decisions, especially when there are no specific domestic laws on a particular issue.

International Organizations: India is a member of various international organizations, including the United Nations (UN), and may be subject to their rules, regulations, and decisions. International organizations may also provide guidance and assistance to India in matters related to international law and legal cooperation.

International Dispute Resolution: India may be involved in international disputes with other states or entities, and these disputes may be resolved through international dispute resolution mechanisms, such as the International Court of Justice (ICJ) or arbitration. The decisions of these international bodies may have implications

INSPIRATIONAL FRAMEWORK OF THE CONSTITUTION

Government of India Act, 1935: The Government of India Act, 1935, was a British law that governed British India before the adoption of the Indian Constitution. Many provisions of the Indian Constitution, such as the federal structure, division of powers between the central government and state governments, and the establishment of a federal court, were adopted from the Government of India Act, 1935.

United States Constitution: The Indian Constitution also drew inspiration from the United States Constitution, particularly in terms of fundamental rights, judicial review, and the concept of a written constitution. The idea of fundamental rights and their inclusion in the Indian Constitution is influenced by the U.S. Bill of Rights, and the power of judicial review exercised by the Indian judiciary is akin to the U.S. Supreme Court’s power of judicial review.

Constitution of Canada: The Indian Constitution also borrowed certain features from the Canadian Constitution, such as the concept of a federal structure with a strong central government and state governments, and the distribution of powers between the center and the states.

Constitution of Ireland: The directive principles of state policy in the Indian Constitution, which are non-justiciable principles that guide the state in policymaking, are influenced by the Constitution of Ireland.

Constitution of South Africa: The concept of fundamental duties in the Indian Constitution, which are a set of moral and civic obligations of citizens, is inspired by the Constitution of South Africa.

Constitutions of other countries: The Indian Constitution also took inspiration from various other countries’ constitutions, including Australia, Germany, France, Japan, and Switzerland, among others, in areas such as the independence of the judiciary, the procedure for amendment of the constitution, and the concept of concurrent list for legislative powers.

It’s important to note that while the Indian Constitution drew inspiration from various sources, it is a unique document that reflects the aspirations, values, and needs of the Indian people and their specific socio-political context. The Indian Constitution has evolved over time through amendments and judicial interpretations to suit the changing needs of the country.

INTERNATIONAL LAWS ENFORCED IN THE INDIAN CONSTITUTION

As a sovereign nation, India is bound by international law, which includes treaties, conventions, customary international law, and other international legal norms. The Indian Constitution recognizes and incorporates certain international laws, which are enforced within the domestic legal system. Here are some examples:

Treaties and Conventions: India is a party to various international treaties and conventions, and these treaties are considered a part of domestic law once they are ratified and incorporated into domestic law through the prescribed process. For example, the Convention on the Rights of the Child, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights are some of the international treaties to which India is a party, and the provisions of these treaties are enforced through domestic laws and can be invoked before Indian courts.

Customary International Law: Customary international law refers to rules of international law that are accepted as binding by states through a general and consistent practice. India, being a member of the international community, is bound by customary international law, and these norms are considered as part of domestic law unless they are in conflict with domestic laws.

International Human Rights Law: The Indian Constitution recognizes and guarantees various fundamental rights to its citizens, such as the right to equality, right to life and personal liberty, right to freedom of speech and expression, and right to freedom of religion, among others. These rights are also protected under international human rights instruments, and the principles of international human rights law are often referred to and enforced in the interpretation and application of these constitutional rights by Indian courts.

International Environmental Law: India is also bound by international environmental law, which includes international agreements, conventions, and customary norms aimed at protecting the environment and addressing global environmental challenges. These international environmental norms are reflected in domestic laws and policies, and Indian courts have enforced them in various environmental cases.

International Humanitarian Law: International humanitarian law, also known as the laws of war, governs the conduct of armed conflicts and protects the rights of victims of armed conflicts. India, being a party to various international humanitarian law instruments, incorporates these norms into its domestic law and enforces them in cases related to armed conflicts and wartime conduct.

It’s important to note that while international law is considered as part of the Indian legal system, the enforcement and application of international law in the Indian Constitution may vary depending on the specific circumstances, domestic laws, and judicial interpretations.

PROBLEMS FACED DURING THE ENFORCEMENT OF INTERNATIONAL LAW IN THE INDIAN CONSTITUTION

While the Indian Constitution recognizes and incorporates certain international laws, there are several challenges and issues related to the enforcement of international law within the Indian legal system. Some of the problems regarding the enforcement of international law in the Indian Constitution include:

Dualism vs Monism: India follows the dualist approach, which means that international law and domestic law are considered separate and distinct, and international law does not automatically become part of domestic law upon ratification. For international law to be enforceable in India, it must be specifically incorporated into domestic law through appropriate legislative or constitutional measures. This can sometimes result in delays or gaps in the enforcement of international law in the Indian legal system.

Lack of Direct Applicability: International law provisions that are not specifically incorporated into domestic law may not be directly applicable or enforceable in Indian courts. Domestic laws may need to be enacted or amended to align with international law obligations in order to ensure effective enforcement.

Conflicts with Domestic Laws: There may be instances where domestic laws or constitutional provisions are in conflict with international law obligations. In such cases, there can be challenges in reconciling the two, and courts may need to interpret and harmonize domestic laws with international law principles, which can be complex and contentious.

Limited Awareness and Capacity: Awareness about international law and its principles among legal practitioners, judges, and other stakeholders in the Indian legal system may be limited. This can result in challenges in understanding and applying international law in domestic legal proceedings. Additionally, there may be limitations in the capacity and resources of the Indian legal system to effectively enforce and implement international law obligations.

Sovereignty Concerns: As a sovereign nation, India may prioritize its national interests and sovereignty concerns over international law obligations in certain situations. This can result in challenges in the enforcement of international law, particularly in cases where there are conflicting interests or policy considerations.

Lack of Domestic Implementation Mechanisms: In some cases, international law obligations may require domestic implementation measures, such as enactment of specific laws or establishment of implementation mechanisms. The absence of such measures can hinder the effective enforcement of international law in the Indian legal system.

Enforcement of State Obligations: In a federal system like India, where powers are divided between the central government and state governments, enforcement of international law obligations can also face challenges at the state level. State governments may have varying levels of awareness, capacity, and willingness to enforce international law obligations, which can impact their implementation.

It’s important to note that the enforcement of international law in the Indian Constitution is subject to the specific provisions of the Indian Constitution, domestic laws, and judicial interpretations. Efforts have been made to address some of these challenges through domestic legislation, judicial decisions, and policy measures, but continued efforts are required to ensure effective enforcement of international law obligations in the Indian legal system.

IMPACT OF ENFORCING INTERNATIONAL LAW ON THE INDIAN CONSTITUTION

The enforcement of international law can have several impacts on the Indian Constitution, which is the supreme law of the land in India. Some of the key impacts of enforcing international law on the Indian Constitution are:

Incorporation of International Law: When India becomes a party to an international treaty or convention, and it is ratified and incorporated into domestic law, it becomes a part of the Indian Constitution. This means that the provisions of the international treaty or convention are given legal force and can be enforced in Indian courts. This incorporation of international law can impact the interpretation and application of the Indian Constitution, as courts may refer to international law principles in their decisions and judgments.

Interpretation and Harmonization: The enforcement of international law may require courts to interpret and harmonize domestic laws and constitutional provisions with international law obligations. Courts may need to interpret the Indian Constitution in light of international law principles to ensure compliance with India’s international obligations. This can impact the understanding and application of constitutional provisions and may result in judicial decisions that align with international law norms.

Protection of Fundamental Rights: International human rights law, including treaties and conventions that India is a party to, may provide additional protection to fundamental rights recognized under the Indian Constitution. Courts may rely on international human rights standards in interpreting and enforcing fundamental rights provisions in the Indian Constitution, which can impact the scope and extent of protection afforded to individuals under the Constitution.

Development of Domestic Jurisprudence: Enforcement of international law can contribute to the development of domestic jurisprudence in India. Judicial decisions related to international law can shape the interpretation and application of domestic laws and constitutional provisions, and can set precedents for future cases. This can result in the evolution of domestic jurisprudence, incorporating international law principles, and contributing to the development of Indian legal system.

Obligations on State and Central Governments: The enforcement of international law can impose obligations on both the central and state governments in India. International law obligations may require domestic implementation measures, such as enactment of specific laws or establishment of implementation mechanisms. This can impact the powers and responsibilities of the central and state governments, and may require coordination and cooperation between them to ensure compliance with international law obligations.

Promotion of International Relations: Enforcement of international law can impact India’s international relations and diplomatic engagements. Compliance with international law obligations can enhance India’s reputation as a responsible member of the international community and can contribute to its relations with other countries. Conversely, failure to comply with international law obligations can have adverse consequences on India’s international standing and reputation.

Sovereignty Considerations: Enforcement of international law may also raise sovereignty considerations for India. As a sovereign nation, India may need to balance its international law obligations with its national interests and sovereignty concerns. This may require careful consideration and decision-making to ensure that international law obligations are enforced in a manner that aligns with India’s national interests.

Overall, the enforcement of international law can impact the Indian Constitution in terms of interpretation, application, and development of domestic jurisprudence, protection of fundamental rights, and obligations on the government, while also taking into account sovereignty considerations and international relations. It requires a careful balancing of domestic and international legal obligations to ensure compliance with international law while safeguarding India’s constitutional framework and national interests.

CONCLUSION

In conclusion, the enforcement of international law in the Indian constitution has significant implications on various aspects of India’s legal system. It can impact the interpretation, application, and development of domestic jurisprudence, the protection of fundamental rights, the obligations on the government, and India’s international relations. While the incorporation of international law into the Indian constitution can enhance India’s commitment to international norms and standards, it also requires careful consideration of sovereignty concerns and balancing with domestic interests.

The enforcement of international law in the Indian constitution presents opportunities for India to align its domestic laws with international obligations, enhance the protection of fundamental rights, and contribute to the development of domestic jurisprudence. It can also contribute to India’s reputation as a responsible member of the international community and foster positive international relations.

However, challenges may arise in the enforcement of international law in the Indian constitution, such as conflicts between domestic laws and international obligations, issues of interpretation and harmonization, and concerns about sovereignty and national interests. Resolving these challenges may require careful deliberation by courts, policymakers, and other stakeholders to ensure that international law obligations are complied with while safeguarding India’s constitutional framework and national interests.

In conclusion, the enforcement of international law in the Indian constitution is a complex and evolving process that requires careful consideration of legal, constitutional, diplomatic, and sovereignty aspects. It has the potential to shape India’s legal system and international relations, but also presents challenges that need to be addressed in a balanced and nuanced manner to ensure compliance with international law while safeguarding India’s constitutional framework and national interests.