Bridging Global Commitments and Local Laws: Human Rights in International and Domestic Contexts

India occupies a unique position in the global human rights landscape. Its Constitution, adopted on January 26, 1950 – just two years after the Universal Declaration of Human Rights (UDHR) was proclaimed in 1948 – was drafted in the same intellectual climate that gave birth to the modern international human rights system. This was no coincidence. The framers of the Constitution were deeply aware of international developments, and that awareness shaped a document that mirrors the architecture of global human rights law even before India formally ratified the major international covenants. Understanding how India’s domestic law aligns with and navigates international human rights obligations is essential for anyone studying law, public policy, or the criminal justice system in India.

The international bill of human rights: a quick foundation 🔗

The International Bill of Human Rights consists of three documents: the UDHR (1948), the International Covenant on Civil and Political Rights (ICCPR), and the International Covenant on Economic, Social and Cultural Rights (ICESCR). Both the ICCPR and the ICESCR became international law in 1976. Together with the UDHR, these two covenants form what is known as the “International Bill of Human Rights.”

The two covenants were born from the same resolution – both were adopted by the UN General Assembly on 16 December 1966 and entered into force in 1976 after receiving the required number of ratifications. Their division into two separate instruments was not accidental. The split reflected ideological divisions during the Cold War era: Western nations emphasised civil and political rights, while Eastern bloc and developing countries prioritised economic, social, and cultural rights.

What each covenant covers 🔗

The ICCPR focuses on issues such as the right to life, freedom of speech, religion, and voting. The ICESCR focuses on food, education, health, and shelter. Both covenants proclaim these rights for all people and forbid discrimination. In terms of legal obligations, the two instruments operate differently. ICCPR rights are often viewed as “negative obligations” requiring state restraint, though many also require positive state action (e.g., fair trial systems). ICESCR rights are typically considered “positive obligations” requiring resource allocation and programmatic implementation, subject to the principle of progressive realisation.

India’s ratification and its declarations 🔗

India signed both covenants on April 10, 1979 – the same day it ratified them. This meant there was a 13-year gap between the covenants being adopted in 1966 and India formalising its commitment. This delay reflected concerns about reconciling international obligations with domestic priorities and constitutional provisions. When ratifying, India did not sign onto the obligations unconditionally. It made several specific reservations and declarations.

On ICCPR Article 1 (right to self-determination), India interprets this as applying only to peoples under foreign domination, not to sovereign states or sections within them. On ICCPR Article 9 (compensation for unlawful arrest), India’s position is that its existing legal system adequately provides remedies. On ICESCR Article 8 (trade union rights), India committed to implementing this consistent with constitutional provisions and domestic law.

India has also notably not ratified certain other international instruments. India is not a signatory to the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Convention on the Status of Refugees, or the Optional Protocols to the ICCPR. This selectivity in ratification is a significant aspect of how India manages its international human rights commitments.

The Indian Constitution and international human rights: a structural parallel 🔗

The Indian Constitution’s architecture closely mirrors the structure of the International Bill of Human Rights. This parallel was not imposed after the fact – it reflects a shared moment in history when both documents were being simultaneously developed.

Fundamental rights (Part III) and the ICCPR 🔗

Part III of the Constitution (Articles 12-35) contains the Fundamental Rights – judicially enforceable rights that citizens can vindicate directly before courts. From a deep study of Parts III and IV of the Indian Constitution, it is evident that almost all of the rights provided in the UDHR are covered in these two parts. Rights like equality before law (Article 14), freedom of speech and expression (Article 19), and protection of life and personal liberty (Article 21) correspond directly to civil and political guarantees in the ICCPR.

Over time, the Supreme Court has expanded Article 21 considerably through judicial interpretation. Rights like the right to fair trial, right to privacy, right to legal aid, and right to travel abroad, while not originally enumerated in the Fundamental Rights, were recognised as Fundamental Rights through various judicial pronouncements. The Supreme Court’s reasoning in these cases explicitly drew on ICCPR provisions as interpretive support.

Directive principles (Part IV) and the ICESCR 🔗

Part IV of the Constitution contains the Directive Principles of State Policy (DPSP). Unlike Fundamental Rights, DPSPs are not judicially enforceable – but they are “fundamental in the governance of the country” and the state is duty-bound to apply them in law-making. Most of the provisions in the ICESCR are found in Part IV of the Indian Constitution.

DPSPs aim at establishing a welfare state based on social and economic justice. Many DPSPs reflect principles found in the UDHR, particularly those related to economic, social, and cultural rights. Specific examples include Article 41 (right to work, education, and public assistance), Article 42 (just and humane conditions of work and maternity relief), Article 43 (living wage), and Article 45 (free and compulsory education for children). These align closely with ICESCR guarantees on labour rights, the right to health, and the right to education.

The relationship between Fundamental Rights and DPSPs has evolved through constitutional jurisprudence. In the landmark case of Kesavananda Bharati v. State of Kerala (1973), the Supreme Court observed that the Universal Declaration of Human Rights may not be a legally binding instrument but it shows how India understood the nature of human rights at the time the Constitution was adopted. Courts have since held that the scope of Fundamental Rights can be interpreted not only in the light of DPSPs but also in conjunction with international covenants that are in harmony with those rights.

How international law enters domestic courts 🔗

India follows a dualist model in theory – meaning international treaties do not automatically become part of domestic law upon ratification. Article 253 of the Constitution grants Parliament the power to enact legislation to implement any treaty or international agreement. But in practice, India’s judiciary has developed a more flexible approach that allows international norms to influence domestic law even without legislative implementation.

The Vishaka principle 🔗

The most celebrated example of this is Vishaka & Ors. v. State of Rajasthan (1997). Faced with a complete absence of domestic legislation on sexual harassment at workplaces, the Supreme Court held that international conventions and norms are to be read into domestic law in the absence of enacted domestic law occupying the field when there is no inconsistency between them. The Court drew on CEDAW and the ICCPR to formulate the Vishaka Guidelines – binding rules that served as law until Parliament enacted the Sexual Harassment of Women at Workplace Act, 2013.

The Court cited the ICCPR and CEDAW, both of which India has ratified, noting that these international conventions underscore the necessity of eliminating discrimination and ensuring equality, providing a framework for interpreting domestic laws in line with global standards. The Vishaka case set a precedent that Indian courts still follow: where domestic law is silent and an international norm is consistent with the Constitution, courts can and do give effect to that norm.

Other key judicial applications 🔗

The Vishaka case was not an isolated instance. In Nilabati Behera v. State of Orissa (1993), the Supreme Court relied on Article 9(5) of the ICCPR to hold that the right to compensation was not alien to the enforcement of a guaranteed right – expanding the remedy of compensation for custodial deaths as a public law remedy under Article 32 of the Constitution. In Navtej Singh Johar v. Union of India (2018), while decriminalising consensual same-sex relations, the Supreme Court cited Article 2(3) of the ICCPR in declaring Section 377 unconstitutional, as it requires all signatory states to offer remedies for rights infringement. And in the right to privacy judgment, K.S. Puttaswamy v. Union of India (2017), the Court cited both the UDHR and the ICCPR to establish privacy as a fundamental right under Article 21.

The Protection of Human Rights Act, 1993 and the NHRC 🔗

India’s domestic institutional architecture for human rights is anchored in the Protection of Human Rights Act, 1993, which established the National Human Rights Commission (NHRC). Importantly, the Act refers to human rights as outlined in both the ICCPR and the ICESCR. The NHRC’s mandate, functioning, and thematic focus areas are directly tied to these covenants.

The Act defines “human rights” as rights relating to life, liberty, equality, and dignity guaranteed by the Constitution or embodied in the international covenants and enforceable by courts in India. The NHRC actively cultivates a human rights culture by conducting public awareness initiatives and training programs for diverse stakeholders, fostering collaboration with civil society organisations and human rights defenders. It also has dedicated core groups established for various subjects and themes that are in tandem with the focus areas of the ICCPR.

India has also enacted domestic legislation in direct response to its international obligations. The Rights of Persons with Disabilities Act, 2016 was enacted to comply with the United Nations Convention on the Rights of Persons with Disabilities. This pattern – where treaty ratification precedes and shapes domestic legislation – illustrates how international commitments translate into enforceable rights over time.

The gaps: where international commitments face domestic challenges 🔗

Despite this framework, there are significant gaps between India’s international commitments and their domestic realisation. India has yet to ratify a host of international instruments. Its adherence to them is, at best, ambiguous. Concerns around preventive detention laws (challenged under Article 9 of the ICCPR), conditions of prisons, treatment of minorities, and the rights of refugees (India has not ratified the Refugee Convention) reflect areas where domestic practice and international standards remain misaligned.

India’s position on Article 13 of the ICCPR, which prohibits expulsion of resident aliens, is that it reserves the right to apply its own domestic laws. These reservations and carve-outs are legal, but they do highlight the points of tension where national sovereignty claims push back against universally stated human rights norms.

India has undergone periodic review under the ICCPR. India concluded its fourth periodic review before the UN Human Rights Committee in Geneva. The Human Rights Committee, comprising 18 independent experts, monitors implementation of the ICCPR and makes observations and recommendations. India’s third review had been in 1997. These reviews serve as an accountability mechanism, allowing international scrutiny of India’s human rights performance even where domestic enforcement may be incomplete.

A framework that evolves through the judiciary 🔗

What makes India’s approach distinctive is that the integration of international human rights law into domestic law has been driven as much by the judiciary as by Parliament. The Supreme Court has held that the scope of certain Fundamental Rights could be adjudged by reading into them international covenants or conventions which are in harmony with those rights. This judicial activism has effectively bridged the gap between treaty ratification and legislative implementation in many areas – from the right to privacy to gender equality to the rights of LGBTQ+ persons.

The result is a dynamic legal system where the Constitution remains the supreme law, but international human rights norms serve as a living interpretive resource. When Parliament has not acted, courts have stepped in. When domestic law is silent, international obligations guide judicial reasoning. And as the Indian Supreme Court has shown repeatedly, these two layers of law – the global and the local – are not rivals but reinforcing frameworks in the protection of human dignity.

What do you think? India adopted a dualist approach to international law on paper, yet its courts have consistently drawn on unimplemented treaties to expand fundamental rights. Does this judicial activism adequately substitute for legislative action, or does it create an uncertain foundation for rights that should be secured by Parliament? And given India’s reservations to the ICCPR on issues like unlawful arrest compensation and alien expulsion, how should we evaluate whether a country has genuinely committed to an international human rights covenant?

References

1. https://www.ohchr.org/en/human-rights/universal-declaration/translations/english
2. https://www.ohchr.org/en/treaty-bodies/ccpr/background-international-covenant-civil-and-political-rights-and-optional-protocols
3. https://indiankanoon.org/doc/1442295/
4. https://nhrc.nic.in/international-covenant-on-civil-and-political-rights-(iccpr)