Bridging Global Norms and Local Laws: The Domestic Status of International Human Rights Treaties in India

When India signs an international human rights treaty, does it automatically become law in the country? Can an Indian court directly enforce provisions from the Universal Declaration of Human Rights or the Convention on the Rights of the Child? These questions lie at the heart of understanding how India bridges its international commitments with domestic legal obligations.

India has ratified numerous international human rights treaties, including the International Covenant on Civil and Political Rights, International Covenant on Economic, Social and Cultural Rights, Convention on the Elimination of All Forms of Discrimination Against Women, and Convention on the Rights of the Child. However, ratifying a treaty does not automatically make it enforceable within India’s borders. This is because India follows what international law scholars call a “dualist” system.

Understanding dualism in India’s legal framework 🔗

The relationship between international law and domestic law can follow two approaches. Monist systems treat international treaties as automatically becoming part of domestic law upon ratification, while dualist systems require specific implementing legislation to give treaties domestic legal effect. India falls squarely in the latter category.

In Jolly George Verghese v. Bank of Cochin (1980), the Supreme Court made this clear by stating that unless municipal law is altered to accommodate a treaty, what binds the courts is the former and not the latter. This position was reaffirmed in State of West Bengal v. Kesoram Industries (2004), where the Court emphasized that treaties entered into by India cannot become law unless Parliament passes legislation under Article 253 of the Constitution.

This dualist approach means there is a two-step process. First, the executive branch has the power to negotiate and ratify international treaties. Second, for these treaties to have any legal force domestically, Parliament must enact appropriate legislation.

Constitutional provisions governing international obligations 🔗

Two key constitutional provisions shape India’s approach to international law. Article 51(c) directs the State to foster respect for international law and treaty obligations in the dealings of organized peoples with one another. This provision is part of the Directive Principles of State Policy, which are not legally enforceable but serve as guiding principles for governance.

Article 253 empowers Parliament to make laws for implementing any treaty, agreement, or convention with other countries. This provision is particularly significant because it allows Parliament to legislate even on subjects that would normally fall under the State List, thereby overriding the usual federal distribution of powers when necessary to fulfill international obligations.

The placement of Article 51 in the non-justiciable Directive Principles rather than the enforceable Fundamental Rights is telling. It reflects the framers’ intention that India should respect international law while maintaining parliamentary supremacy over the actual incorporation of international norms into domestic law.

The judiciary’s creative bridge between international and domestic law 🔗

While the constitutional framework is clear about requiring legislative action, Indian courts have found creative ways to bring international human rights standards into domestic jurisprudence. They do this not by directly enforcing unincorporated treaties, but by using them as interpretive tools to expand the meaning of constitutional provisions.

The landmark case that demonstrates this approach is Vishaka v. State of Rajasthan (1997). When Bhanwari Devi, a social worker in Rajasthan, was gang-raped for trying to prevent child marriage, there was no domestic legislation addressing sexual harassment at workplaces. The Supreme Court faced a dilemma: fundamental rights were being violated, but no law existed to provide protection.

In the absence of domestic legislation, the Court relied on the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) to formulate binding guidelines on sexual harassment. The Court stated that international conventions and norms are significant for interpreting the guarantee of gender equality, right to work with human dignity in Articles 14, 15, 19(1)(g), and 21 of the Constitution.

How courts use international law without incorporating it 🔗

The judicial approach involves several techniques. Courts cite international human rights instruments when interpreting constitutional provisions like the right to life and liberty under Article 21 or equality under Article 14. They use international standards to fill gaps in domestic law, as was done in Vishaka. They also refer to India’s international commitments as persuasive authority when developing common law principles.

In Kesavananda Bharati v. State of Kerala (1973), Chief Justice Sikri observed that when the language of the Constitution is ambiguous, the Court must interpret it in light of the United Nations Charter and solemn declarations subscribed to by India. This interpretive approach allows courts to harmonize domestic law with international obligations without directly enforcing unincorporated treaties.

The Supreme Court has applied this methodology in numerous cases beyond Vishaka. Courts have referenced the International Covenant on Civil and Political Rights when expanding the scope of personal liberty, drawn upon environmental treaties when developing environmental jurisprudence, and cited refugee conventions when addressing asylum issues.

The gap between signing and implementing 🔗

India’s dualist system creates a significant gap between international commitment and domestic enforcement. India has ratified six of the nine core UN human rights treaties, yet many of these have not been fully implemented through comprehensive domestic legislation.

This implementation gap poses challenges. Treaty bodies monitoring India’s compliance have noted delays in reporting and inconsistent implementation of treaty obligations. Some provisions remain unenforced because Parliament has not passed enabling legislation. The Protection of Human Rights Act, 1993 partially addresses this by incorporating principles from the International Covenants on Civil and Political Rights and Economic, Social and Cultural Rights, but comprehensive implementation remains incomplete.

The reliance on judicial interpretation to bridge this gap, while creative, has limitations. Court guidelines, like those in Vishaka, lack the detailed regulatory framework that comprehensive legislation would provide. They also raise questions about the separation of powers, as the judiciary steps in to fill legislative vacuums.

Why the dualist approach matters 🔗

India’s dualist system serves important constitutional purposes. It ensures democratic accountability by requiring elected representatives in Parliament to approve the domestic implementation of international obligations. It protects federalism by allowing parliamentary oversight over matters that might otherwise encroach on state subjects. It also maintains the sovereignty of domestic law-making, preventing the executive from unilaterally altering domestic law through treaty ratification.

However, this system also means that international obligations assumed by the executive do not automatically translate into enforceable rights for individuals. Citizens cannot directly invoke international human rights treaties in Indian courts unless those provisions have been incorporated through legislation or can be read into existing constitutional guarantees through judicial interpretation.

The system creates what scholars call “formal dualism with functional monist tendencies.” While formally requiring legislative incorporation, in practice, courts apply international law through various interpretive channels that do not always require parliamentary approval. This creates an uneasy tension between constitutional principle and judicial practice.

Moving forward: balancing international commitment with domestic process 🔗

The current approach reflects a balancing act. India demonstrates respect for international human rights norms through Article 51(c) and active judicial engagement with international law. At the same time, it maintains democratic control over the law-making process through the Article 253 requirement of parliamentary legislation.

Critics argue that this system can delay the fulfillment of international obligations and create uncertainty about which international norms are actually enforceable. Supporters counter that it ensures international commitments are properly debated and adapted to India’s specific context before being enforced.

The judiciary’s role has been crucial in preventing this system from becoming a barrier to human rights protection. By using international law as an interpretive guide, courts have expanded constitutional protections even in the absence of implementing legislation. The Vishaka guidelines, for instance, provided immediate protection against sexual harassment years before Parliament enacted the Sexual Harassment of Women at Workplace Act in 2013.

What do you think? Does India’s dualist approach strike the right balance between respecting international human rights commitments and maintaining democratic control over law-making? Should courts continue to use international treaties as interpretive tools even without parliamentary incorporation, or does this approach undermine the separation of powers?

References

1. https://tbinternet.ohchr.org/_layouts/15/TreatyBodyExternal/Treaty.aspx?CountryID=79&Lang=EN
2. https://en.wikipedia.org/wiki/Monism_and_dualism_in_international_law
3. https://www.drishtiias.com/summary-of-important-reports/india-and-international-law-part-1
4. https://testbook.com/constitutional-articles/article-51-of-indian-constitution
5. https://testbook.com/constitutional-articles/article-253-of-indian-constitution
6. https://indiankanoon.org/doc/1031794/
7. https://en.wikipedia.org/wiki/Vishakha_and_others_v._State_of_Rajasthan
8. https://www.lawteacher.net/free-law-essays/international-law/the-indian-constitution-and-its-contribution-to-international-law-essay.php
9. https://brill.com/edcollchap-oa/book/9789004377653/BP000010.xml?language=en
10. https://link.springer.com/article/10.1007/s40901-017-0069-0