Relationship of International and Municipal Law in India
Customary IL in the Legal System
A. Article 51(c) as a Guiding Principle
B. Doctrine of Incorporation and Judicial Reception
C. Pre-Constitutional Practice and Article 372
D. ADM Jabalpur Controversy
E. Environmental Jurisprudence
F. Limits of Incorporation
Treaties: Making and Implementation
A. Treaty-Making Power: An Executive Prerogative
B. Implementation of Treaties: Article 253
C. Judicial Approach to Treaty Implementation
D. Case Law and Constitutional Limits
E. Absence of Implementing Legislation
IV. Harmonisation and Conflict Resolution
A. Harmonious Construction
B. Supremacy of Municipal Law in Case of Conflict
C. Incorporation of Unenacted Treaties
D. Interpretative Aid for FRs
V. International Law & Legislative Gaps
A. International Law as a Tool for Constitutional Interpretation
B. Development of Environmental and Human Rights Jurisprudence
C. Expanding the Scope of Fundamental Rights
D. Legislative Inspiration and “Legitimate Expectation”
E. Persuasive Value
The interaction between international law and municipal (domestic) law has long been a subject of constitutional, jurisprudential, and diplomatic discourse.
As States increasingly engage with global treaties, conventions, and customary international norms, questions surrounding the extent to which these obligations are incorporated into and enforced within national legal systems have assumed critical importance.
In this context, India presents a unique constitutional and judicial approach, blending elements of both monist and dualist theories.
The Indian Constitution does not explicitly adopt a monist framework wherein international law forms part of the law of the land without legislative transformation.
Instead, it takes a pragmatic stance, influenced by both British common law traditions and the necessities of democratic governance.
Articles 51 and 253 of the Constitution, along with related entries in the Seventh Schedule, reflect India’s commitment to foster respect for international law, while simultaneously safeguarding parliamentary supremacy in implementing treaty obligations.
Indian courts, over the decades, have played an instrumental role in shaping this interface.
Through a creative and purposive interpretation of constitutional provisions—especially Articles 21, 32, and 141—the Supreme Court has facilitated the judicial absorption of international customary norms and treaty-based principles, particularly in the areas of human rights, environmental protection, and gender justice.
Yet, judicial incorporation has been consistently balanced against the doctrine of parliamentary sovereignty, ensuring that unimplemented treaties or conflicting international norms do not override express domestic law.
Customary International Law in the Indian Legal System
The place of customary international law in the Indian legal system is marked by both constitutional recognition and judicial endorsement.
While India does not adhere to the classical Blackstonian principle—that customary international law is ipso facto part of municipal law unless inconsistent with statute—its courts have shown willingness to incorporate such norms when consistent with domestic law and constitutional values.
The Indian approach is essentially dualist in theory, but in practice, it has adopted an assimilationist method, treating customary international law as a persuasive source that informs statutory interpretation and expands the scope of fundamental rights.
A. Article 51(c) as a Guiding Principle
Article 51(c) of the Constitution of India, though located in Part IV under the Directive Principles of State Policy, reflects the framers’ vision of India's commitment to international law.
It states: The State shall endeavour to foster respect for international law and treaty obligations in the dealings with one another.
While not enforceable in a court of law due to the non-justiciable nature of Directive Principles, Article 51(c) nonetheless holds significant persuasive value in guiding the interpretation of statutes and the application of legal principles.
Read with Article 37, which declares Directive Principles as fundamental in governance, Article 51 becomes an interpretive tool rather than a direct source of legal obligation.
The reference to “international law” in Article 51(c) implicitly includes both customary international law and treaty law.
However, as it does not mandate automatic incorporation, the application of customary norms requires either judicial acceptance or legislative transformation.
B. Doctrine of Incorporation and Judicial Reception
Despite the constitutional silence on automatic incorporation, Indian courts have consistently adopted the doctrine of incorporation concerning customary international law.
According to this doctrine, customary international law, insofar as it is not inconsistent with domestic law, is deemed to be part of the law of the land and may be enforced by municipal courts.
In Gramophone Company of India Ltd. v. Birendra Bahadur Pandey (AIR 1984 SC 667), the Supreme Court made a landmark observation endorsing this doctrine.
Justice Chinnappa Reddy stated:
“There can be no question that nations must march with the international community... The comity of nations requires that rules of international law may be accommodated in the municipal law even without express legislative sanction.”
The Court clarified, however, that when a clear conflict arises between international law and statutory law, the latter must prevail. Yet, in the absence of such conflict, courts should attempt harmonious construction and give effect to international norms.
C. Pre-Constitutional Practice and Article 372
The incorporation of customary international law also derives support from Article 372 of the Constitution, which continues all laws in force at the time of commencement of the Constitution.
This includes the British common law system and the jurisprudence developed thereunder. Several Indian cases during British rule, and shortly after Independence, applied principles of international custom as part of Indian common law.
In Annakumaru Pillai v. Muthupayal (ILR 1907 Mad 551), the court adjudicated upon the claim of the Raja of Ramnath to chank fishery rights in Palk Bay. It held that the Raja had acquired a historic title based on prescription and acquiescence—principles rooted in international custom.
Similarly, in A.M.S.S.V.M. & Co. v. State of Madras (1953 2 MLJ 587), the Madras High Court invoked both common law and the international law of the sea, upholding governmental control over certain maritime zones and recognizing customary rules governing the continental shelf and exclusive jurisdiction.
These cases exemplify how Indian courts incorporated customary international law based on continuity of pre-Constitutional jurisprudence.
D. ADM Jabalpur Controversy
A point of divergence appeared in A.D.M. Jabalpur v. Shivakant Shukla (AIR 1976 SC 1207), where the majority opinion, delivered by Justice Beg, rejected the enforceability of international customary norms, characterizing them as merely “ethical” in nature.
Justice H.R. Khanna, in a powerful dissent, held the contrary view, asserting that international customary rules form part of Indian law under Article 372 and are to be applied unless there is express statutory exclusion.
Justice Khanna’s opinion has gained retrospective approval, especially in light of later judicial trends that embraced the progressive interpretation of constitutional rights in harmony with international standards.
E. Environmental Jurisprudence
The landmark case of Vellore Citizens Welfare Forum v. Union of India (AIR 1996 SC 2715) marked a pivotal moment in the judicial recognition of environmental principles as part of customary international law.
The Supreme Court unequivocally accepted the ‘Precautionary Principle’ and the ‘Polluter Pays Principle’ as components of customary international law and, hence, enforceable as part of Indian law.
The Court observed:
“It is almost an 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.”
The Court also acknowledged the emergence of “Sustainable Development” as an overarching concept in international law and held that its principles could guide the interpretation of environmental rights under Article 21 of the Constitution.
F. Limits of Incorporation
While Indian courts have shown openness to customary international law, they have consistently reaffirmed the supremacy of the Constitution and domestic statutes.
This balance is critical in a dualist system, where international law cannot override express statutory or constitutional provisions.
In Gramophone Co. and other cases, the courts made it clear that if Parliament enacts a law contrary to international custom, the national law will prevail. Similarly, the courts cannot enforce customary norms that would contravene constitutional mandates or fundamental rights.
Nevertheless, when faced with legislative silence or ambiguity, courts have not hesitated to turn to international custom for guidance.
This is particularly true in the context of human rights, environmental protection, and emerging global norms.
Treaties: Making and Implementation
In Indian constitutional law, the status of treaties—both in their making and their implementation—presents a complex interplay between the executive and the legislature.
Unlike the United States Constitution, which explicitly declares treaties as the “supreme law of the land,” the Constitution of India adopts no such direct formulation.
Instead, India follows a model similar to the British dualist system, under which treaties do not automatically become part of municipal law unless implemented through legislation.
Nonetheless, the Constitution empowers both the executive to enter into treaties and the Parliament to enact legislation necessary for their implementation.
A. Treaty-Making Power: An Executive Prerogative
The authority to negotiate, enter into, and sign treaties lies with the executive, exercised in the name of the President under Article 53(1) of the Constitution.
Article 73 further extends the executive power of the Union to matters on which Parliament has the power to legislate, including those under Entry 14 of List I (Union List) of the Seventh Schedule, which specifically deals with treaties and agreements with foreign countries and their implementation.
The Indian Parliament, although constitutionally empowered to legislate on treaty-related matters, does not currently regulate the executive’s power to enter into treaties.
In the absence of such legislation, the treaty-making power remains within the unfettered discretion of the executive.
As a result, treaties may be negotiated, signed, and even ratified without prior parliamentary approval or consultation.
This practice was confirmed in Union of India v. Manmull Jain (AIR 1954 Cal 615), where the Calcutta High Court held that the President could enter into treaties without prior legislative sanction.
In Ram Jawayya Kapur v. State of Punjab (AIR 1955 SC 549), the Supreme Court clarified that executive powers extend to subjects where Parliament may legislate, including foreign affairs and treaty-making.
The executive is not bound to await legislative action before entering into treaties, unless implementation in municipal law is required.
In Union of India v. Azadi Bachao Andolan (AIR 2004 SC 1107), the Supreme Court observed that the power to enter into treaties is an incident of sovereignty and a constitutionally recognized function of the executive under Article 73.
It held: “Our Constitution makes no provision making legislation a condition for the entry into an international treaty...
The Executive is qua the State competent to represent the State in all international matters and may by agreement/convention/treaty incur obligations which in international law are binding upon the State.”
Therefore, under the Indian constitutional framework, treaty-making is inherently an executive function, and no constitutional provision mandates prior or subsequent legislative approval for entering into treaties.
B. Implementation of Treaties: Article 253
While the executive is competent to enter into treaties, their enforceability within domestic law depends on legislative action—especially where treaty obligations affect the rights of individuals or require modification of existing statutes.
This requirement is rooted in Article 253 of the Constitution, which provides:
“Notwithstanding anything in the foregoing provisions of this Chapter, Parliament has power 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 any decision made at any international conference, association or other body.”
Article 253 overrides the federal distribution of legislative subjects and permits Parliament to legislate even on subjects in the State List when giving effect to international obligations.
This was confirmed in Maganbhai Ishwarbhai Patel v. Union of India (AIR 1969 SC 783), where the Court stated that implementation of a treaty, even if it relates to a State subject, lies exclusively within the jurisdiction of Parliament under Article 253.
This Article has been employed by Parliament to enact several implementing laws, such as the Diplomatic Relations (Vienna Conventions) Act, 1972; Protection of Human Rights Act, 1993; and the SAARC Convention (Suppression of Terrorism) Act, 1993.
C. Judicial Approach to Treaty Implementation
Indian courts have adopted a nuanced approach in determining whether legislative implementation is necessary. They distinguish between treaties that merely declare international obligations without affecting individual rights and those that require transformation into domestic law to alter the legal position of citizens.
In Maganbhai Ishwarbhai Patel, the Court recognized this distinction by noting that some treaties are “self-executing,” while others require legislation. Where a treaty affects justiciable rights or entails expenditure from the Consolidated Fund of India, legislation is deemed essential. Conversely, where the treaty does not alter domestic law or impinge on fundamental rights, no implementing legislation is necessary.
In Jolly George Verghese v. Bank of Cochin (AIR 1980 SC 470), Justice Krishna Iyer held that international covenants, such as the ICCPR, do not automatically become enforceable parts of Indian law. Their enforceability depends on legislative incorporation. The Court emphasized that while international covenants may inspire legislative or judicial action, they cannot override express provisions of municipal law.
Likewise, in Shiv Kumar Sharma v. Union of India (AIR 1968 Del 64), the Delhi High Court held that treaty obligations are not enforceable unless backed by appropriate legislation.
D. Case Law and Constitutional Limits
Certain treaties, particularly those involving territory, require constitutional amendment rather than mere legislative action. In In Re: Berubari Union (AIR 1960 SC 845), the Supreme Court ruled that the cession of Indian territory pursuant to a treaty requires a constitutional amendment under Article 368.
The case involved the Nehru-Noon Agreement between India and Pakistan for the transfer of Berubari to Pakistan.
The Court held:
“The implementation of such an agreement would necessarily lead to the diminution of Indian territory and must therefore be effected only by amending the Constitution under Article 368.”
In contrast, in Ram Kishore Sen v. Union of India (Berubari Case No. 2) (AIR 1966 SC 644), the Court distinguished cases of de facto possession by India over territory de jure belonging to another State. Where India merely rectifies a boundary or returns territory that never legally belonged to it, no constitutional amendment is required.
Similarly, in Sukumar Sen Gupta v. Union of India (AIR 1990 SC 1692), the Court held that the lease of Teen Bigha Corridor to Bangladesh was not a cession of sovereignty but merely a servitude, and therefore did not require constitutional amendment.
These cases underscore the principle that treaties involving alteration of India's territory must conform to constitutional limitations, while other treaties may be implemented through ordinary legislation or, in some cases, executive action alone.
E. Absence of Implementing Legislation
In exceptional cases, courts have used unincorporated treaties to interpret domestic law or fill legislative gaps, especially in the domain of fundamental rights.
In Vishaka v. State of Rajasthan (AIR 1997 SC 3011), the Supreme Court invoked the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) to frame guidelines on sexual harassment at the workplace, in the absence of domestic legislation.
The Court held that:
“Any international convention not inconsistent with the fundamental rights and in harmony with its spirit must be read into those rights to enlarge their meaning and content.”
This principle has since been applied in various cases involving gender rights, environmental protection, and the right to privacy (Justice K.S. Puttaswamy v. Union of India).
IV. Harmonisation and Conflict Resolution
One of the key challenges in the interaction between international law and municipal law is the potential for conflict. In India, the judiciary has played a pivotal role in navigating this tension by developing a nuanced jurisprudence that seeks harmony between international obligations and domestic statutes.
Indian courts have generally adopted a pragmatic approach: while reaffirming the supremacy of the Constitution and domestic law, they have also shown an increasing willingness to interpret statutory and constitutional provisions in light of international legal principles—particularly in the domains of fundamental rights, environmental law, and human rights.
A. Harmonious Construction
The Indian judiciary recognises that international law, particularly when it reflects universal values, should inform the interpretation of municipal statutes wherever possible. This interpretive principle finds support in Article 51(c) of the Constitution, which enjoins the State to “foster respect for international law and treaty obligations.” Although not enforceable in court, Article 51(c) is frequently cited as an interpretive aid.
In Kesavananda Bharati v. State of Kerala (AIR 1973 SC 1461), the Supreme Court observed that constitutional language—if not intractable—should be interpreted in a manner consistent with India’s international obligations.
Similarly, in Jolly George Verghese v. Bank of Cochin (AIR 1980 SC 470), the Court held that even though international covenants do not automatically become part of municipal law, they can inform the interpretation of domestic statutes, particularly in areas of ambiguity or silence.
B. Supremacy of Municipal Law in Case of Conflict
Despite the emphasis on harmony, Indian courts have consistently maintained that international law cannot override clear and unambiguous provisions of municipal law.
This principle is particularly important in a dualist system, where transformation through legislative action is generally required for treaties to become enforceable in domestic courts.
In ADM Jabalpur v. Shivakant Shukla (AIR 1976 SC 1207), the majority of the Supreme Court rejected the argument that international human rights norms, such as the Universal Declaration of Human Rights (UDHR), could be enforced without legislative incorporation.
Justice H.R. Khanna, in his famous dissent, argued that courts should attempt to interpret domestic law in harmony with international standards, but acknowledged that if conflict is unavoidable, domestic law must prevail.
The same principle was reiterated in Gramophone Co. of India v. Birendra Bahadur Pandey (AIR 1984 SC 667), where the Court stated that “when international law conflicts with municipal law, the latter will prevail.”
However, the Court added that, wherever possible, a construction should be adopted which is consistent with international norms, thereby minimising the scope for conflict.
C. Incorporation of Unenacted Treaties
Indian courts have shown particular dynamism in using international treaties—especially human rights conventions—to fill legislative gaps.
This is most evident in Vishaka v. State of Rajasthan (AIR 1997 SC 3011), where the Supreme Court laid down legally binding guidelines to prevent sexual harassment at the workplace, relying on the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).
The Court held:
“Any international convention not inconsistent with the fundamental rights and in harmony with its spirit must be read into those rights to enlarge their meaning and content.”
This marked a shift from the earlier, stricter position of non-enforceability of treaties without legislative backing. While the Court did not suggest that unincorporated treaties are binding per se, it allowed them to inform judicial reasoning and the development of common law, particularly in areas where domestic legislation was absent or inadequate.
A similar approach was adopted in People’s Union for Civil Liberties v. Union of India (AIR 1997 SC 568), where international human rights norms—especially those under the International Covenant on Civil and Political Rights (ICCPR)—were used to define the contours of the right to privacy under Article 21 of the Constitution.
The Court took the view that in the absence of inconsistency, international law could be used to expand the ambit of fundamental rights.
D. Interpretative Aid for FRs
Over the years, courts have repeatedly looked to international legal instruments such as the UDHR, ICCPR, and various UN conventions to interpret the scope of constitutional rights.
In Nilabati Behera v. State of Orissa (1993) 2 SCC 746, the Court referred to international conventions to support its recognition of compensation for custodial deaths as a public law remedy under Article 32.
In Justice K.S. Puttaswamy v. Union of India (2017) 6 SCC 235, the Supreme Court reaffirmed this approach.
The Court cited the UDHR and ICCPR to support the recognition of the right to privacy as a fundamental right, observing:
“Constitutional provisions must be read and interpreted in a manner which would enhance their conformity with the global human rights regime.”
Thus, while international treaties are not per se enforceable unless incorporated, courts have given them normative value in interpreting the Constitution, especially in the realm of fundamental rights.
V. International Law & Legislative Gaps
In India’s dualist legal system, international law—particularly treaties and conventions—is not automatically enforceable unless incorporated through legislation.
However, Indian courts have increasingly turned to international law as a source of guidance and inspiration, especially when faced with legislative or constitutional gaps.
This jurisprudential trend is marked by the use of international legal instruments to interpret fundamental rights, formulate new legal principles, and address areas where domestic law is either absent or inadequate.
A. International Law as a Tool for Constitutional Interpretation
Indian courts have used international conventions, even those not enacted into municipal law, to inform and expand constitutional interpretation.
A notable example is the landmark judgment in Vishaka v. State of Rajasthan (AIR 1997 SC 3011), where the Supreme Court framed guidelines to prevent sexual harassment at the workplace in the absence of specific legislation.
The Court relied heavily on the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), which India had ratified but not legislated. The Court held:
“In the absence of domestic law occupying the field, the contents of international conventions and norms are significant for the purpose of interpretation of the guarantee of gender equality, right to work with human dignity.”
This decision laid the groundwork for future statutory developments, culminating in the enactment of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
B. Environmental and Human Rights Jurisprudence
International law has also influenced the development of environmental jurisprudence in India. In Vellore Citizens’ Welfare Forum v. Union of India (AIR 1996 SC 2715), the Court adopted the “precautionary principle” and the “polluter pays” principle—both considered customary international norms—to address the absence of comprehensive environmental protection mechanisms under Indian law.
The Court treated these principles as integral to Articles 21, 47, and 48-A of the Constitution, thus reinforcing the right to a healthy environment.
Similarly, in Nilabati Behera v. State of Orissa (1993) 2 SCC 746, dealing with custodial death, the Court referred to international human rights instruments like the International Covenant on Civil and Political Rights (ICCPR) to establish the right to compensation as a constitutional remedy under Article 32.
C. Expanding the Scope of Fundamental Rights
In Justice K.S. Puttaswamy (Retd.) v. Union of India (2017) 6 SCC 235, the Supreme Court declared the right to privacy as a fundamental right under Article 21.
In doing so, the Court relied on international norms, including the UDHR and the ICCPR, to underscore the importance of privacy as a facet of human dignity.
The Court stated that constitutional interpretation must be informed by India’s international commitments, especially where they align with the values of liberty and autonomy enshrined in the Constitution.
The Court emphasized that India, being a signatory to these conventions, has a moral and interpretative obligation to ensure their principles are reflected in domestic law, even if not formally enacted.
D. Legislative Inspiration and “Legitimate Expectation”
Although treaties may not be directly enforceable, their ratification creates a legitimate expectation that the State will act in accordance with them.
This doctrine was also reflected in Apparel Export Promotion Council v. A.K. Chopra (AIR 1999 SC 625), where the Court emphasized the importance of aligning domestic legal norms with international human rights instruments, especially where they pertain to dignity, equality, and freedom from discrimination.
Moreover, in Samatha v. State of Andhra Pradesh (AIR 1997 SC 3297), the Court referred to the UN Convention on the Right to Development to stress the need for equitable socio-economic policies for marginalized communities, despite the convention not being enacted into Indian law.
E. Persuasive Value
The Indian judiciary’s approach to international law has evolved to embrace its persuasive value, particularly in the face of legislative and constitutional silences.
Courts have not hesitated to draw from international conventions and customary norms to fill legal voids, especially in the areas of gender justice, environmental protection, and fundamental rights.
While respecting the supremacy of domestic law, the judiciary has used international law as a progressive tool to guide interpretation, promote justice, and align India’s legal system with its global commitments.
References
Universal Declaration of Human Rights (UDHR), 1948
International Covenant on Civil and Political Rights (ICCPR), 1966
International Covenant on Economic, Social and Cultural Rights (ICESCR), 1966
Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), 1979
United Nations Convention Against Torture (UNCAT), 1984
United Nations Framework Convention on Climate Change (UNFCCC), 1992
UN Declaration on the Right to Development, 1986
UN Convention for the Suppression of Terrorist Bombings, 1997
Gleneagles Accord (Commonwealth Agreement on Apartheid and Sports)
Brundtland Report ("Our Common Future") – Sustainable Development Principles
Beijing Declaration and Platform for Action, 1995
Vienna Convention on Diplomatic Relations, 1961
SAARC Regional Convention on Suppression of Terrorism, 1987
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