India and International Law: Formal Dualism, Functional Monism

Indian Journal of International Law https://doi.org/10.1007/s40901-017-0069-0

ARTICLE

India and international law: formal dualism, functional monism

Aparna Chandra

Ó The Indian Society of International Law 2017

Abstract India has traditionally been described as a dualist country in relation to its engagement with international law. Formally at least, the allocation of the power of assumption of international obligations rests with the Executive, while its domestic implementation requires Parliamentary sanction. In this paper, I argue that while India remains formally committed to dualism, in practice it exhibits many monist tendencies. Once international law obligations are assumed, they are transported into domestic law through various channels, not all of which require Parliamentary approval. Further, the Indian judiciary also applies non-domesticated international law obligations in various ways that reflect shades of monism. I argue that this departure from dualism is problematic since it removes much needed Parliamentary scrutiny, and results in a lack of executive accountability, erosion of federalism, the loss of value of legal pluralism, and the amplification of international law’s democratic deficits.

Keywords Monism Á Dualism Á Domestic implementation of international law Á Treaty making power Á Judicial incorporation of international law

1 Introduction

How does, and how should, India engage with international law? Speciﬁcally, which organ(s) of government should be empowered, and how, to direct this engagement? Answers to these questions lie at the core of the present article. I argue that while the traditional doctrines of monism and dualism have limited explanatory power in describing

Aparna Chandra (&) Centre for Constitutional Law, Policy and Governance, National Law University, Delhi, New Delhi, India e-mail: [email protected] 123 Aparna Chandra transnational legal interactions in today’s interconnected world, they continue to shape the domestic allocation of power with respect to the assumption and domestication of international law obligations. In the context of India, which describes itself as dualist, formally at least the allocation of the power of assumption of international obligations rests with the Executive, while its domestic implementation requires Parliamentary sanction. In this paper, I argue that while India remains formally committed to dualism, in practice it exhibits many monist tendencies, since once international law obligations are assumed, they are transported into domestic law through various channels, not all of which require Parliamentary approval. Further, the Indian judiciary also applies non-domesticated international law obligations in various ways that reﬂect shades of monism. I argue that this departure from dualism is problematic on various counts. In Part 2 of this paper I brieﬂy describe the doctrines of monism and dualism, before shifting lens to the Indian doctrine and practice of engaging with international law. In Part 3, I describe the Constitu- tional allocation of powers in relation to engagement with international law. Part 4 focuses on the practice of the Executive in internalizing international law. Part 5 relates to judicial approaches to engaging with international law. Part 6 concludes with observations and concerns regarding the Indian practice of engagement with international law.

2 Monism and dualism

The notion that international and domestic laws operate in distinct spheres separated from each other through clear normative and physical borders, is no longer the prevailing paradigm for either describing or theorizing the relationship between the two bodies of law. No longer is international law thought of as a set of rules governing the relations among states. Rather, international law increasingly denotes a normative framework that is both constitutive and reﬂective of the relationship not only between states inter se, but also between states, their citizens, other individuals, and non-state entities—matters once thought to be purely within the domestic/municipal sphere.1 The roots of these changes in the forms, function, institutions and content of

1 See A. M. Slaughter & W Burke-White, The Future of International Law is Domestic (or, the European Way of Law), 47 Harvard Intl LJ (2006) 327. 123 India and international law: formal dualism, functional monism international law lie in the recognition that many concerns facing the entire world, from environmental law, to criminal enterprise, to peace and security, have their basis in discrete domestic policies. The earlier conception of international law, limited to the regulation of inter-state relationships, was not adequate to cope with these concerns.2 Norm-setting at the international level has resulted in the increasing transfer of decision-making authority to transnational fora and processes.3 The substantive rules of international law are so wide- reaching and pervasive that it is no longer possible to say that there are ‘matters which are essentially within the domestic jurisdiction of any state.’4 International law norms are increasingly designed to be applied within national orders, giving rise to the need for national enforcement.5 The changing scope of international law has fuelled the need for moving beyond the doctrinal devices of monism and dualism in delineating the interaction between, and relative authority of international and domestic laws. Historically, the doctrines of monism and dualism conceptualized two distinct modes of interaction between international and domestic law in domestic courts.6 Monism conceives of the international and domestic legal orders as normatively interconnected, and views international and domestic law as part of the same legal order. According to monist approaches, international law ought to be automatically incorporated into the domestic legal order, without the requirement of any additional act of adoption or transformation by the state. On incorporation, international law is slotted into the hierarchy of legal sources applicable within the domestic legal order and is applied as part of the governing normative framework within that jurisdiction, including by the judiciary. Monism rationalizes the interconnectedness of the international and domestic legal spheres on the understanding that it is international law that provides the

2 Secretary-General’s High-Level Panel on Threats, Challenges and Change, A More Secure World: Our Shared Responsibility, U.N. Doc. A/59/565 (2 Dec 2004) 2. 3 Mattias Kumm, The Legitimacy of International Law: A Constitutional Framework of Analysis, 15 European J Intl L (2004) 907, 913. 4 United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI, article 2(7); Kumm, ibid. 5 Philip Allott, The Emerging Universal Legal System, in Nijman & Nollkaemper (eds.), New Perspectives on the Divide Between National and International Law (OUP, New York, 2007) 80. 6 Ian Brownlie, Principles of International Law, 5th edn (Clarendon Press, Oxford, 1998) 31–33; Curtis A. Bradley, Breard, Our Dualist Constitution, and the Internationalist Conception, 51(3) Stanford L Rev (1999) 529, 530; John Jackson, Status of Treaties in Domestic Legal Systems: A Policy Analysis,86American J Intl L (1992) 310, 311. 123 Aparna Chandra recognition necessary for the authority of municipal law to operate over a given subject or territory.7 Dualism, on the other hand, is based on the understanding that international and domestic laws operate in distinct and compartmen- talized spheres and that international law is not automatically incorporated into the domestic legal order.8 Since international and domestic laws operate in distinct spheres, the only mechanism for the transformation of international law into domestic law is through the medium of regular domestic law-making processes. Dualism therefore does not hold that international law does not have any role to play in the domestic order, but that whatever this role might be, it has to be directly sanctioned by domestic legal processes.9 Monism and dualism are artifacts of speciﬁc political debates that took place in the Europe in the late nineteenth- early twentieth century regarding the nature and function of law and the limits, if any, on state power.10 In recent literature, attempts have been made to re-purpose these doctrines to address contemporary concerns.11 Monist values are rationalized within contemporary discourses as promoting/reﬂecting a cosmopolitan culture and the universalization of value,12 as well as serving the imperatives of global governance.13 Dualism on the other hand has been reinforced in recent writings as a valuable device for preserving/promoting international legal pluralism;14 as protecting the distinct and self-expressive nature of domestic

7 Hans Kelsen, Sovereignty, reprinted in Malcolm Evens and Patrick Capps (ed.), International Law, Vol 1, (Ashgate Publishing, Farnham, 2009) 3; Farooq Hassan, The Doctrine of Incorporation: New Vistas for the Enforcement of International Human Rights?, 5 Human Rights Quarterly (1983) 68, 79; T. M. Franck & A. K. Thiruvengadam, International Law and Constitution-Making, Chinese J Intl L (2003) 467, 470. 8 Ibid. 9 See Ian Brownlie, supra note 6, at 33; Louis Henkin, The Constitution and United States Sovereignty: A Century of Chinese Exclusion and Its Progeny, 100 Harvard L Rev (1987) 853, 864. 10 Harold Koh, Why do Nations Obey International Law, 106 Yale LJ (1997) 2599, 2604–2608; Janne Nijman & Andre Nollkaemper, Introduction, in Nijman & Nollkaemper (eds.), New Perspectives on the Divide Between National and International Law (OUP, New York, 2007) 6–10. 11 Alexander Somek, Monism: A Tale of the Undead, University of Iowa Legal Studies Research Paper (2010) (remaking on how these ‘intellectual relics…from a different age’ have been in recent times ‘reformulated… in a new vocabulary’). Examples of this type of scholarship are Mattias Kumm, Constitutional Democracy Encounters International Law: Terms of Engagement, in S. Choudhry (ed), The Migration of Constitutional Ideas (CUP, New York, 2007); Armin von Bogdandy, Pluralism, Direct Effect, and the Ultimate Say: On the Relationship between International and Domestic Constitutional Law, 6 Intl J Constitutional L (2008) 397. 12 Somek, ibid.; Allott, supra note 5, at 80. 13 For example, Justice Sandra Day O’Connor of the U.S. Supreme Court has remarked that she sees the growing utility of looking to international law, especially when domestic issues have international dimensions. Justice Sandra Day O’Connor, Remarks at the Southern Center for International Studies, October 28, 2003, \http://www.southerncenter.org/OConnor_transcript.pdf[. See also Daniel Esty, Good Governance at the Supranational Scale: Globalizing Administrative Law, 115 Yale LJ 1490 (2006). 14 See Bogdandy, supra note 12. 123 India and international law: formal dualism, functional monism law;15 and as indispensible for the proper functioning of domestic democratic processes for the creation of coercive legal norms, instead of rule by ‘a new political elite of international lawyers.’16 At the same time, concerns about the (lack of) participatory and (un) democratic nature of the processes of international law-making and concerns regarding their substantive content are often posited as supports for dualist positions.17 As doctrines, monism and dualism are formalistic, formulaic constructs that do not reﬂect the reality of the multitudinous ways in which global legal interactions take place, especially in light of the increasing interpenetration of the international and domestic legal orders.18 Further, casting this interaction in such either/or, oppositional categories of monism or dualism not only hides a wide variety of complexity in the implementation of the doctrines, but also serves to overstate the differences between them.19 For example, monist countries also require legislative sanction when dealing with international law. Monists require legislative approval for the very assumption of international obligations, but once assumed, these obligations have direct effect.20 Some monist countries like Netherlands and Russia even have publication requirements before a treaty can be enforced domestically. Dualists may or may not require legislative approval for the assumption of international obligations, but do need legislative approval for these obligations to have domestic effect.21 Therefore both monist and dualist legal systems have requirements for subjecting international law to domestic majoritarian checks. This seems to

15 Vicki Jackson, Constitutional Engagement in a Transnational Era (OUP, NY, 2010) 46. 16 John O’ Sullivan, Op-Ed., High Court Opposites Dazzling Off the Bench, Chicago Sun-Times, October 25 2005. See also Gráinne de Búrca & Oliver Gerstenberg, The Denationalization of Constitutional Law, 47 Harvard J Intl L (2006) 243, 245; Jonathan Turley, Dualistic Values in the Age of International Legisprudence, 44 Hastings LJ (1993) 185, 186. 17 David Mednicoff, The Importance of Being Quasi-Democratic—The Domestication of International Human Rights in American and Arab Politics, 38 Victoria Univ Wellington L Rev (2007) 317, 317–318. See also John McGinnis, Foreign to Our Constitution, 100 North Western Univ L Rev (2006) 303, 312–316; Bogdandy, supra note 12, at 412; Moravscik, In Defence of the ‘‘Democratic Deficit’’: Reassessing Legitimacy in the European Union, 40 J Common Market Stud (2002) 603. 18 Bogdandy, supra note 12, at 400; F. Francioni, International Law as a Common Language for National Courts, 36 Texas Intl L J (2001) 587; Kumm, supra note 12. 19 Eileen Denza, The Relationship Between International and Domestic Law, in Malcolm Evans, International Law, 3rd edn (OUP, NY, 2010) 417–418. 20 Antonio Cassese, International Law, 2nd edn (OUP, 2005) 236. 21 See, eg, Attorney General for Canada v Attorney General for Ontario, [1937] AC 326 (Privy Council) (‘…there is a distinction between the formation of international obligations through treaty and its performance. The first is within the domain of the executive, and the second within the domain of the legislature. For treaty obligations to have effect domestically, the executive is required to take the assent of Parliament through formal law. This is the position within the British Empire’). 123 Aparna Chandra indicate that monism and dualism are more properly characterized as domestic allocation of powers doctrines that determine which branch of the state can give consent to the assumption, and application of treaty law.22 Despite the concerns with the doctrines of monism and dualism, I do not argue that these formal categories are not important. They are important precisely because they are given importance, by decision- makers, judges and other state authorities. India, for example, allocates powers in relation to international law along the dualist paradigm. However, as I argue below, in practice Parliament has limited control over the domestication of international norms, such that the Executive often assumes and internalizes international law obligations without any, or very restricted and ex-post, Parliamentary oversight. Therefore, the specific distribution of powers between the Executive and the Legislature, as envisaged within dualist theories, is belied in Indian practice. This is compounded by judicial dicta that allows courts to internalize international law norms without their prior domestication by the legislature.

3 International law and the Indian Constitution: formal dualism

Though the Indian Constitution was being debated in the period that saw the birth of the United Nations and the framing of the Universal Declaration of Human Rights, the text of the Constitution does not spell out clearly how the new state ought to interact with the emerging international order, or what effect, if any, the norms of international law ought to have within the state. While the Constitution exhorts the state in Article 51 to ‘foster respect for international law and treaty obligations in the dealing of organized people with one another,’23 this directive is in the form of a judicially non-enforceable principle of governance.24 The Constituent Assembly engaged in limited debates on the intent, scope and content of

22 See, eg, Cassese, supra note 21, at 223–224; Attorney General for Canada v Attorney General for Ontario, [1937] AC 326 (Privy Council); See also R v Jones (Margaret), [2006] UKHL 16 (UK). 23 Constitution of India, art 51 (Providing that the ‘state should 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 dealing of organized people with one another; and (d) encourage the settlement of international disputes by arbitration’). 24 Article 51 is in Part IV of the Constitution, dealing with Directive Principles of State Policy (‘‘DPSP’’). As per Article 37, DPSPs are ‘fundamental in the governance of the country’ but ‘shall not be enforceable by any court.’ 123 India and international law: formal dualism, functional monism this provision.25 The language of the article was based on the Havana Declaration, adopted at the Second Conference of American State Members of the International Labour Organization, 1939, in which the signatories proclaimed their faith in the imperative need to achieve international peace, inter alia, ‘by the maintenance of justice and the scrupulous respect for treaty obligations in the dealings of organized peoples with one another.’26 Based on this Declaration, and after going through various drafts and amendments, the article took its present shape. The debates indicate that Article 51 was considered non- obligatory, and was clearly intended to guide India’s foreign policy and form the basis of its international relations, rather than provide for how India should approach its international law obligations domestically.27 Apart from the general directive to ‘foster respect’ for international law, which is applicable to all state authorities, the Constitution allocates legislative power over entering into and implementing international obligations to the union Legislature (Parliament). Article 246, read with entries 10–14 of the Union List of the Seventh Schedule of the Constitution (enumerating powers of the Union), provides that legislative competence over foreign affairs, over entering into treaties with foreign countries and implementing them domestically, lies with Parliament.28 Parliament also has competence over participation in international conferences, associations and other bodies and implementing decisions made therein.29 Article 253 of the Constitution clariﬁes that the power of Parliament to make law for the implementation of international obligations extends even to those matters that are otherwise within the legislative competence of states.30

25 In fact, while introducing the draft article for discussion, Dr. Ambedkar, the Chairperson of the Drafting Committee, stated that, ‘[t]he propositions contained in this new article are so simple that it seems to be super-arrogation to try to explain them to the House by any lengthy speech.’ Constituent Assembly Debates, Vol VII (Govt of India, Lok Sabha Secretariat, New Delhi, 1948–49) 595. 26 B. Shiva Rao, The Framing of India’s Constitution: Select Documents, Vol 2 (Indian Institute of Public Administration, New Delhi, 1967) 150. 27 Ibid. 28 Article 246 provides that the federal Legislature ‘has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule.’ Entry 14 of this List provides Parliament with competence over ‘[e]ntering into treaties and agreements with foreign countries and implementing of treaties, agreements and conventions with foreign countries.’ 29 Entry 13, Union List. 30 Article 253 provides that: 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 countries or any decision made at any international conference, association or other body. 123 Aparna Chandra

Since the legislative competence over entering into treaties and their domestic implementation lies with Parliament, it has the power to define how international law obligations ought to be assumed and when and how they ought to be implemented domestically. To date however, Parliament has not passed any legislation to this effect. In its absence, India follows the British practice with regard to assuming and implementing international obligations,31 a practice that is justified by reference to Article 73 of the Indian Constitution. By virtue of Article 73, the powers of the Union Executive are co-terminus with those of Parliament.32 This provision has been interpreted to mean that the Union Executive can act on all matters, and only on the matters, over which Parliament has been accorded competence by the Constitution, even in the absence of legislation on the point.33 Therefore, a joint reading of Article 246, entries 10–14, and Article 73 stands for the proposition that (a) it is open to Parliament to pass a law regulating how international obligations are assumed on the international stage and how they are implemented and enforced domestically; and, (b) in the absence of such legislation, as is the case currently, the power to enter into treaties has devolved upon the Executive.34 No provision in the Constitution, and as stated above, no statutory law, requires the Executive to seek pre-ratification approval of Parliament while assuming international obligations. Thus the Execu- tive can assume the most wide-ranging international obligations,

31 VS Mani, Effectuation of International Law in the Municipal Legal Order—The Law and Practice in India, 5 Asian Yrbk Intl L (1997) 162–163. 32 Constitution of India, art 73:

(1) Subject to the provisions of this Constitution, the executive power of the Union shall extend—

(a) to the matters with respect to which Parliament has power to make laws; and (b) to the exercise of such rights, authority and jurisdiction as are exercisable by the Government of India by virtue of any treaty or agreement: Provided that the executive power referred to in sub clause (a) shall not, save as expressly provided in this Constitution or in any law made by Parliament, extend in any State to matters with respect to which the Legislature of the State has also power to make laws. 33 Article 73 has been interpreted by the Indian Supreme Court in Ram Javaya Kapur v State of Punjab, AIR 1955 SC 549, to hold that the Executive can exercise power over matters in the Union List even in the absence of legislation to the effect as long as it does not act in violation of any law. 34 Union of India v Azadi Bachao Andolan, (2004) 10 SCC 1. See also Franck & Thiruvengadam, supra note 7; Rajeev Dhavan, Introduction—Indian Governance and Treaties: The Advent of the WTO \http://y4e.in/ pdf/wc/Governance%20and%20Constitutionalism/Indian%20Governance%20and%20Treaties%20% 20The%20Advent%20of%20the%20WTO.pdf[. 123 India and international law: formal dualism, functional monism including on matters within the legislative competence of states, without seeking Parliamentary approval.35 However, as has been held by the Supreme Court, if the domestic implementation of such norms involves any alteration of the existing domestic law, Parliamentary legislation will be required for such purposes.36 Therefore, on its own, treaty law is not applicable in the Indian domestic sphere unless it has been transformed or adopted by domestic legislation.37 The position described above, of executive treaty-making power and legislative implementation, is similar to the one found in many other common law countries, including the UK, Canada, and Australia.38 The locus classicus on the division of powers between the Executive and the Legislature in matters relating to international obligations is the Privy Council decision in Attorney General for Canada v Attorney General for Ontario,39 where the position was laid down thus: It will be essential to keep in mind the distinction between (1) the formation, and (2) the performance, of the obligations constituted by a treaty, using that word as comprising any agreement between two or more sovereign States. Within the British Empire there is a well-established rule that the making of a treaty is an executive act, while the performance of its obligations, if they entail alteration of the existing domestic law, requires legislative action. Unlike some other countries, the stipulations of a treaty duly ratiﬁed do not within the Empire, by virtue of the treaty alone, have the force of law. If the national executive, the Government of the day, decide to incur the obligations of a treaty which involve alteration of law they have to run the risk of obtaining the assent of Parliament to the necessary statute or statutes….Parliament, no doubt,…has a Constitu- tional control over the executive: but it cannot be disputed that the creation of the obligations undertaken in treaties and the assent to their form and quality are the function of the executive alone. Once they are created, while they bind the State as against the other contracting parties, Parliament may refuse to perform them and so leave the State in default. This proposition, requiring the pro-active internalization of international law by Parliament, has been cited with approval by the Indian Supreme Court in explaining the division of treaty making and enforcement powers between the

35 Mani, supra note 31, at 161–162. 36 Maganbhai Ishwarbhai Patel v Union of India, (1970) 3 SCC 400. 37 Jolly George Varghese v Bank of Cochin, AIR 1980 SC 470. 38 See National Commission to Review the Working of the Constitution, A Consultation Paper on Treaty-Making Power under our Constitution (2001), \http://lawmin.nic.in/ncrwc/finalreport/v2b2-3. htm[. 39 [1937] AC 326 (Privy Council). 123 Aparna Chandra federal Executive and the Legislature.40 Thus the formal interaction between the domestic and international legal spheres in relation to treaty obligations, particularly that of permitting no internalization of international law except through legislative approval, is reflective of a dualist approach, and has been recognized as such by the Indian Supreme Court.41 The position of customary international law in the domestic legal order also reflects the general approach followed in the UK. The Supreme Court of India has accepted and regularly made use of the proposition that ‘the rules of customary international law which are not contrary to the municipal law shall be deemed to be incorporated in the domestic law.’42 Thus India follows the common law tradition of requiring the legislative transformation of treaty obligations, while directly incorporating rules of customary international law.

4 Functional monism: the importance (and often absence) of parliamentary scrutiny

This framework for internalizing international law described above, was discussed and debated in the Constituent Assembly. The decision to allocate to Parliament the power to implement international obligations—even to the extent of over-riding the federal structure—was animated by several concerns. The Government of India Act, 1935, which deﬁned the powers and functions of government under British rule, had provided in Section 106 that the Federal Legislature’s powers of implementing treaties did not extend to matters over which the provinces had legislative competence. The Federal Legislature could therefore implement treaties affecting provincial matters only with the consent of the provinces. This restriction was perceived as a hindrance to India’s effective participation in ILO conferences, and implementing decisions arrived therein. In light of this experience, the Constituent Assembly felt a need for providing overriding powers to the union in

40 See Maganbhai Ishwarbhai Patel v Union of India, (1970) 3 SCC 400 (J. C. Shah, concurring) (rejecting the ‘argument raised at the Bar that power to make treaty or to implement a treaty, agreement or convention with a foreign State can only be exercised under authority of law’). 41 See, eg, Bhavesh Jayanti Lakhani v State of Maharashtra, (2009) 9 SCC 551 (‘India follows the doctrine of dualism and not monoism (sic). We may, however, hasten to add that this Court, however, at times for the purpose of interpretation of statute has taken into consideration not only the treaties in which India is a party but also declarations, covenants and resolutions passed in different International Conferences. …Whenever, it is well known, a conﬂict arises between a treaty and the domestic law or a municipal law, the latter shall prevail’); State of West Bengal v Kesoram Industries Ltd, (2004) 10 SCC 201 (‘…the doctrine of ‘Monism’ as prevailing in the European countries does not prevail in India. The doctrine of ‘Dualism’ is applicable’). 42 Peoples’ Union for Civil Liberties v Union of India, AIR 1997 SC 568. 123 India and international law: formal dualism, functional monism

Article 253 in order for the country to speak with one voice internation- ally, and to ensure effective implementation of decisions of international bodies and fora, without being held to ransom by the provinces. Instead, the Framers placed great value on Parliamentary oversight in the domestic implementation of international obligations. They reasoned that Parlia- ment’s involvement in internalizing international law would provide ample scope for debate and discussion, and would thus check arbitrary Executive action, as well as safeguard the interests of states and prevent a denuding of the federal structure of the state.43

4.1 Executive internationalization of international law

As seen above, the Framers considered parliamentary oversight in domestication of international obligations as critical both for holding the Executive to account and for protecting the federal structure of the state. However, in practice, the Executive has many opportunities for incorporating international law into domestic law without express Parliamentary approval, and without any, or with limited and ex-post, Parliamentary oversight. Parliament often grants power to the Exec- utive to modify the application of domestic laws so as to give effect to relevant international law obligations that may arise in the future. For example, both the Extradition Act, 1962 and the Income Tax Act, 1961 permit the Executive to modify the application of these Acts to give effect to extradition treaties and double taxation avoidance agreements respectively, as and when the Executive enters into such treaties.44 Similarly, under the United Nations (Security Council) Act, 1947, when the Security Council draws on its powers under Article 41 of the UN Charter, and directs India to take measures, the Central Government can make any provision ‘as appear to it necessary or expedient for enabling those measures to be effectively applied,’ without requiring any additional Parliamentary intervention.45 Recent exercises of this power include a series of orders passed in relation to Security Council Resolutions 1267 (1999), 1333(2000), 1363 (2001), 1390 (2002), 1455

43 Constituent Assembly Debates, 25 August 1947, vol. V (Lok Sabha Secretariat, Govt of India, New Delhi, 1948–49). 44 Section 12 of the Extradition Act, 1962 permits the Central Government to modify the provisions of the Act in relation to a foreign state with which it has entered into an extradition treaty, for the purposes of giving effect to the treaty. Similarly, Section 90, Income Tax Act, 1961 allows the modiﬁed application of the Income Tax Act in relation to assessees covered by Double Taxation Avoidance Agreements between India and foreign countries. 45 Section 2, United Nations (Security Council) Act, 1947. 123 Aparna Chandra

(2003), 1526 (2004), 1566 (2004), 1617 (2005), 1735 (2006), and 1822 (2008) for the freezing of assets of person/ entities suspected of having links to terror, and for taking other measures against such persons.46 Interestingly, the European Court of Justice has struck down, as violative of fundamental rights, EU regulations based on Security Council Resolutions on the freezing of assets.47 Further, when the Executive is granted wide discretion, or has ample rule-making powers, it can decide to ratify and domesticate international legal norms in the exercise of such powers, with no, or limited, parliamentary over-sight. For instance, the Environment (Protection) Act, 1986 invests the Central Government with the power ‘to take all such measures as it deems necessary or expedient for the purpose of protecting and improving the quality of the environment and preventing controlling and abating environmental pollution.’48 The Central Government has wide concomitant rule-making powers as well.49 In the exercise of this power, the Central Government has promulgated wide-ranging rules and often for incorporating international conventions into domestic law.50 None of these Acts require Parliamentary approval or confirmation for the exercise of discretion or rule-making authority. Under the United Nations (Security Council) Act, 1947, no requirement exists for any Parliamentary oversight with respect to any measures that may be adopted by the Executive. Both the Environment (Protection) Act and the Extradition Act require the government to inform Parliament ex- post, that is, as soon as possible after the government has notified the rules. The Extradition Act only requires that Parliament be informed,51 whereas the Environment (Protection) Act requires that the rules be laid before Parliament for thirty days.52 Affirmative Parliamentary

46 See The Prevention and Suppression of Terrorism (Implementation of Security Council Resolutions) Order, 2007; The Prevention and Suppression of Terrorism (Implementation of Security Council Resolutions) Amendment Order, 2009. 47 See Kadi v Council and Commission, C-402/05 P and C-415/05 P, [2008] ECR I–6351; European Commission, Council of the European Union and United Kingdom of Great Britain and Northern Ireland v Yassin Abdullah Kadi, C-584/10 P, C-593/10 P and C-595/10 P, EU:C:2013:518. 48 Section 3, Environment (Protection) Act, 1986. 49 Section 6, Environment (Protection) Act, 1986. 50 See eg, Hazardous Waste (Management, Handling and Transboundary Movement) Rules, as amended upto 2009 (incorporating obligations under the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, Basel, 1989. 51 Section 35, Extradition Act, 1962. 52 Even this limited ex-post scrutiny procedure is rarely used in practice. In the current Lok Sabha, for example, there has not been even a single instance of discussion of rules promulgated under Parliamentary legislations. Shashi Tharoor, India’s Crisis of Representation, OPEN, 18 August 2017 \http://www. openthemagazine.com/article/essay/india-s-crisis-of-representation[. 123 India and international law: formal dualism, functional monism approval of the rules is not required, and such rules come into effect from the date the Executive notifies them. Parliament can only modify or revoke the rules ex-post. Similarly, even where Parliament has to act affirmatively in order to incorporate international law into the domestic legal order, no requirement exists for Parliamentary approval prior to ratification of international legal instruments. The Executive can, and does, ratify crucial treaties that have a long-term and potentially deleterious impact on the country, without any public scrutiny.53 Even if Parliament were to subsequently fail to enact law in accordance with a treaty, the country might still be exposed to international liability.54 Therefore, ex- post Parliamentary control over the Executive is not always an effective check.55 As a result, the present dualist structure often does not provide enough space for public scrutiny and debate on whether or not international legal obligations ought to be assumed. Further, after assumption, many international legal norms slip into the domestic legal order through channels of law-making that provide little, or no, parliamentary control.56 These concerns have been particularly highlighted in the last couple of decades in relation to India’s engagement with the Uruguay Round of GATT deliberations, and subsequent treaty ratifications.57 For example, the Indian government signed and ratified the TRIPs agreement even though the relevant Parliamentary Committee had strongly advised against some of the more far-reaching changes to the Indian patent regime that TRIPs would have (and did) result in. However, since prior Parliamentary approval was not required, the Executive could, and did, disregard these recommendations.58 More recently, the government entered into a Civil Nuclear Deal with the United States which, according to many Indian scholars and activists, contained highly

53 See V. R. Krishna Iyer, Accord Sans Accountability, Frontline, 30 March 2002, \http://www. frontlineonnet.com/fl1907/19070870.htm[. 54 At the least, the ratification of an international legal instrument imposes international obligations on the country. Article 27 of the Vienna Convention on the Law of Treaties provides that ‘A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.’ 55 See eg, PIL filed before the Delhi High Court in Shiva Kant Jha v Union of India, CWP (PIL) No. 1357 of 2007, making this claim. 56 Similar concerns regarding the lack of adequate legislative scrutiny over the assumption of international law obligations, have been raised in other common law countries that follow the British model of allocation of powers between the Legislature and Executive. See Joanna Harrington, Scrutiny and Approval: The Role for Westminster Style Parliaments in Treaty-Making, 55 Intl & Comparative L Quarterly 121 (2006). 57 Commission to Review the Working of the Constitution, supra note 38. 58 Ibid. 123 Aparna Chandra unfavourable terms for India.59 No parliamentary approval was required, and none was sought for entering into the deal. While Parliament debated the issue, the lack of transparency regarding the exact terms of the deal and associated agreements affected meaningful discussion.60 In light of these episodes, many demands have been made for an amendment to the Constitution in order to ‘democratize the treaty making process,’61 including through unsuccessful attempts to sponsor bills in Parliament to this effect.62 Cases have also been filed before courts, asking for more restricted reading of the Union Executive’s powers to assume international obligations without Parliamentary approval, but to no avail.63 Further, no requirement exists for consultation with states during the process of negotiating, signing and ratifying international obligations even on matters within their competence. At the same time, once an international obligation is assumed, by virtue of Article 253, legislative competence over that matter vests with the federal Legislature, regardless of whether the subject matter otherwise falls within the competence of the states. Thus international law making shifts powers away from states and upwards towards the centre; thus affecting the federal division of powers otherwise envisaged under the Constitu- tion.64 Often, the preamble to an Act mentions that the legislation is being passed in pursuance of specific international obligations. Many a times, the sole purpose of such a declaration is to transfer competence over the matter to Parliament. In the 1970s for example, many environmental law legislations were passed using the Article 253 powers

59 Bhairav Acharya & Rajeev Dhavan, The Nuclear Cooperation Agreement Between India and the United States of America, PILSARC (2007), \http://www.tradelawonline.com/search/articles/?5ce873c3- e56f-4151-bed5-19ae8f246642[. 60 Ibid.; R. Sachar, Treaty Making Power of a Government, PUCL Bulletin, November 2006, \http:// www.pucl.org/Topics/Law/2006/treaty-making.html[. 61 See Rajeev Dhavan, Treaties and People: Reflections, 39 J Indian L Inst (1997) 1–46. 62 Commission to Review the Working of the Constitution, supra note 38 63 P.B. Samant v Union of India, AIR 1994 Bom 323 (arguing for an injunction against the federal government from ‘entering into final treaty relating to Dunkel Proposals without obtaining sanction of the Parliament and State Legislatures’); Shiva Kant Jha v Union of India, CWP (PIL) NO. 1357 of 2007 (Delhi High Court) (arguing inter alia for a declaration that the Executive cannot bypass Parliament in ratifying treaties, especially those that have a deep impact on the division of centre-state powers). According to media reports, this case has been dismissed both by the Delhi High Court and the Supreme Court of India. See Centre’s treaty-making power must conform to Constitution: SC, Times of India, 17 August 2010, \http://articles. timesofindia.indiatimes.com/2010-08-17/india/28303020_1_treaty-Constitution-basic-structure[. 64 See F. L. Hartman, Federalism as a Limitation on the Treaty Power of the United States, West Germany, and India, 18 Case Western Reserve L Rev (1967) 134 (discussing the wide-ranging impact of broad wording of Article 253 on the federal structure in India). 123 India and international law: formal dualism, functional monism because consultative processes with states were progressing at a slow pace.65 Similarly, and more recently, the Article 253 power was at the forefront of political concern during debates over the Lokpal bill which aimed at setting up of anti-corruption ombudsmen in India. Through this bill, the government sought, inter alia, to set up state level ombudsmen, and thus to regulate state public services, a matter which falls within the states’ legislative competence. In order to get around this issue, the union government sought to bring the legislation under its Article 253 powers by referencing the United Nations Convention Against Corruption in the preamble of the Bill. This link was seen as ‘tenuous’ because the demand for an anti-corruption watchdog, and the large scale protest movement that pressured the government into bringing the legislation in the first place, all pre-dated India’s signing of the UN Convention.66 Further, many states already have their own anti- corruption institutions, and had preferred a more consultative process for a uniform law, as is provided for under other articles of the Constitution.67 Despite these concerns over the ineffectiveness of Parliamentary oversight over the assumption of international obligations and the potential of their adverse impact on the federal structure of the state, whenever the matter of the scope of the Executive’s treaty making power has come up before the courts, judges have read the power expansively, giving full control to the Executive in matters relating to entering into and ratifying treaty obligations without any need for prior Parliamentary approval, and subject only to Constitutional con- straints.68 I do not mean to suggest that the Court necessarily ought to have interpreted the powers of the Executive vis-à-vis the Legislature any differently than it did; but only to highlight that the Court’s rationale for such an expansive reading has been that such treaties have no domestic effect, unless accompanied by Parliamentary sanction, and that this requirement would provide an adequate safeguard against

65 Michael Anderson, International Environmental Laws in Indian Courts, 7(1) Rev European Community & Intl Environmental L (1998) 21. 66 See, eg, Ravi Shankar Prasad, Present Lokpal an Assault on Federalism, Times of India, 27 December 2011 \http://articles.timesoﬁndia.indiatimes.com/2011-12-27/india/30560959_1_lokpal-bill-present-lokpal- reservation[ (newspaper article by the main opposition’s spokesperson, calling the lokpal bill an ‘assault on federalism’). 67 In particular, it was argued that the legislation ought to have been brought under Article 252, after consultation with the states. 68 See In Re: The Berubari Union and Exchange of Enclaves, AIR 1960 SC 845 (stating that treaty making power has to be exercised subject to limitations imposed by the Constitution). 123 Aparna Chandra arbitrary exercises of Executive power. This rationale is suspect in light of the discussion above on the ways in which international legal obligations can be translated in domestic law without parliamentary scrutiny. However, the Court has repeatedly invoked the doctrine of dualism as its core justiﬁcation for broad Executive treaty making powers right from 1950 till date.69 The Court has therefore remained committed to the doctrine of dualism in delineating the scope and allocation of powers between the Executive and Legislature, and between the centre and states, in relation to the domestic incorporation of international legal norms.

4.2 Judicial incorporation of international law

The formal doctrinal picture that thus emerges from the Court’s jurisprudence is that while the Executive has plenary treaty making powers (at least unless Parliament decides to legislate on the issue), it cannot implement international legal obligations domestically to the extent that they involve any deviation from existing law, except with parliamentary approval. But what of the judiciary? A corollary to the principle of dualism is the ‘‘doctrine of transformation’’ which provides that municipal courts cannot enforce international obligations domestically unless accompanied by suitable legislative transformation.70 However, in deﬁning the judiciary’s own powers to engage with international law, the Supreme Court of India has shifted over the years from this dualist position of transformation towards the monist doctrine of incorporation. The doctrine of incorporation allows courts to directly enforce international law without any legislative transformation, unless faced with a contrary domestic norm of higher value. Though the Court has not (yet) considered international law norms as binding on all actors in the same sense as domestic laws and has not (yet) held that international law can give rise to an independent cause of action, when the Court is called upon to adjudicate matters it frequently and robustly applies international law to the issue under review, and provides it such strong and substantive respect regardless of legislative transformation, that its approach is closer to monist doctrines than dualist ones.

69 See, eg, State of Gujarat v Vora Fiddali Badruddin Mithibarwala, AIR 1964 SC 1043; Maganbhai Ishwarbhai Patel v Union of India, (1970) 3 SCC 400; P. B. Samant v Union of India, AIR 1994 Bom 323; Union of India v Azadi Bachao Andolan, (2004) 10 SCC 1. 70 See, eg, Maganbhai Ishwarbhai Patel v Union of India, (1970) 3 SCC 400. 123 India and international law: formal dualism, functional monism

This approach of the Court was noticeable as early as 1984, in Gramophone Company of India Ltd. v Birendra Bahadur Pandey,71 where the Court explicitly moved away from the doctrine of transformation to the doctrine of incorporation. In this case, the Court had to interpret a provision on the Indian Copyright Act. In deciding to interpret the provision in a manner consistent with India’s international obligations, the Court held that, Rules of International law may be accommodated in the Municipal Law even without express legislative sanction provided they do not run into conflict with Acts of Parliament….The doctrine of incorporation also recognises 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.72 The Court’s approach in Gramophone Company fundamentally curtails the role of the legislature in internalizing international law. Parliament is no longer required to authorize the internalization and domestic implementation of international law. International law moves from being inapplicable unless legislatively internalized to being applicable unless legislatively resisted. Per this approach, Parliament’s role shifts from that of permitting the internalization of international law to that of prohibiting it. Note that in Gramaphone Company, the Court made no mention of the allocation of treaty making power between the Executive and the Legislature or the presumption of legislative internalization of international law on which such allocation was based. The Court also did not make any distinction between self- and non-self executing treaties. Its blanket statement applied with respect to all international law. Gramophone Company situated international law as a source of law within the domestic legal order. Since an express statutory provision to the contrary could override the international law, international law was pegged below statutes in the hierarchy of norms. In Gramophone Company, the Court was dealing with treaty-based international law. The principle articulated in that case was extended to customary international law in 1996 in Vellore Citizens Welfare Forum v Union of India.73 Continuing with the theme of direct incorporation of international law, the Court held that once ‘principles are accepted as part of the Customary International Law there would be no difficulty in

71 (1984) 2 SCC 534. 72 Ibid (emphasis supplied). 73 Vellore Citizens Welfare Forum v Union of India (1996) 5 SCC 647. 123 Aparna Chandra 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.’74 Using this rationale, the Court internalized into domestic law various principles of international environmental law, which, the Court stated, were part of customary international law.75 Even though in Gramophone Company the Court mandated incorporation of international law without the need for prior legislative intervention, it was still dependent on the Executive first to enter into such obligations. In 1992 however, the Court removed this constraint upon its usage of international law. It held that India’s non-ratification of a series of treaties relating to maritime law did not bar their application by the Court, since these treaties embodied the unification of maritime rules common to national legal systems, and as such, could be seen as part of an international common law and thus open to incorporation by Indian Courts.76 In this case, for the first time the Court rationalized the application of treaties that had not been ratified by the country, and moved towards their judicial incorporation.77 Along the same lines, in 1993 the Court referred to Article 9 (5), ICCPR as a basis for its decision to award compensation in a case of violation of fundamental rights, thus ignoring India’s specific reservation to that clause.78 In 2004, the Supreme Court expressly recognized this practice of bypassing Executive assumption of international obligations, by stating that ‘even if India is not a signatory to the relevant International Treaty or Covenant, the Supreme Court in a large number of cases interpreted the statutes keeping in view the same.’79 While Gramophone Company had still left open the scope for Parliament to reject international law through statute, by the mid- 1990s, the Court had started viewing international law as having

74 Ibid. See also, People’s Union for Civil Liberties v Union of India, (1997) 1 SCC 301. 75 Scholars have argued that the principles that the Court adopted, including their specific instantiation, were not yet part of customary international law. See, eg, Anderson, supra note 65. 76 M.V. Elisabeth v Harwan Investment and Trading Pvt. Ltd, AIR 1993 SC 1014. 77 Since then this decision has been cited with approval in MV Al Quamar v Tsavliris Salvage (International) Ltd, (2000) 8 SCC 278; Liverpool and London S.P. and I Association v M.V. Sea Success, (2004) 9 SCC 512. 78 See eg, Nilabati Behera v State of Orissa, (1993) 2 SCC 746; C. Masilamani Mudaliar v The Idol of Sri Swaminathaswami Swaminathaswami Thirukoli, (1996) 8 SCC 525; Sarbananda Sonowal v Union of India, (2005) 5 SCC 665. 79 State of West Bengal v Kesoram Industries Ltd, (2004) 10 SCC 201. 80 See People’s Union for Civil Liberties v Union of India, (1997) 3 SCC 433. 123 India and international law: formal dualism, functional monism constitutional status. For example, in People’s Union for Civil Liberties v. Union of India,80 the Court held that ‘the provisions of the covenant [ICCPR], which elucidate and go to effectuate the fundamental rights guaranteed by our Constitution, can certainly be relied upon by courts as facets of those fundamental rights and hence, enforceable as such.’81 Similarly, in Vishaka v State of Rajasthan,82 the Court stated that ‘[a]ny 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….The international conventions and norms are to be read into [fundamental rights] in the absence of enacted domestic law occupying the field when there is no inconsistency between them.’83 The wholesale importation of entire conventions, very loosely channeled through fundamental rights, has made the Court’s approach closer to direct application rather than interpretative incorporation.84 Since this case, the Court has time and again reiterated the notion of direct importation of international law into the Constitution.85 The Court has not only channeled international law through fundamental rights provisions, but has also determined the constitutionality of statutory provisions in light of India’s international commitments. For example, in 1994 it explicitly stated that ‘…the spirit of the international convention has to be kept in view in considering the validity of the impugned provisions and their applications.’86 In the clearest example of such use, the Court framed as a distinct issue for determination, the question of ‘whether [an] Act [providing for affirmative action in higher education] is in violation of Article 26 of the Universal Declaration of Human Rights which postulates that technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit…’87

80 See People’s Union for Civil Liberties v Union of India, (1997) 3 SCC 433. 81 Ibid (emphasis supplied). 82 (1997) 6 SCC 241. 83 Ibid. 84 A similar point is made in Michael Anderson, surpa note 64. 85 See, eg, Apparel Export Promotion Council v A.K. Chopra, (1999) 1 SCC 759; The Chairman, Railway Board v Chandrima Das, (2000) 2 SCC 465; Kuldip Nayar v Union of India, (2006) 7 SCC 1. 86 P.N. Krishna Lal v Govt of Kerala, 1995 Supp (2) SCC 187. See also John Vallamattom v Union of India, (2003) 6 SCC 611. 87 Ashoka Kumar Thakur v Union of India, (2007) 4 SCC 397. This case was referred to a larger bench which handed down its decision in 2008, but did not address the issue framed. Ashoka Kumar Thakur v Union of India, (2008) 6 SCC 1. 123 Aparna Chandra

Thus, the Court has signaled the imperativity of international law norms in the domestic legal order, and has done so by making international law directly applicable to disputes before the Court. It is ironic therefore that as late as in 2009, the Indian Supreme Court has been declaring that India is a dualist country.88 The arc of the Court’s decisions over time indicates otherwise, exhibiting a move along the continuum from dualism to pro-monist conceptions of engagement with international law.

5 Conclusion

The disjuncture between the theory and practice of India’s engagement with international law might be welcomed by some as indicating a much-needed openness to a progressive body of norms, particularly international human rights. However, as I have argued in previous work,89 international law itself comes in different shapes and sizes—and not all international law norms are progressive. Third world countries like India have raised significant concerns over the international economic regime, for example. Concerns such as these are exacerbated by the unequal bargaining power of parties, the often opaque decision making processes, and the democratic deficit in international law making.90 For these reasons, an attitude of openness towards international law ought to be tempered with careful evaluation of the suitability of its norms in the country’s specific domestic contexts. Viewed from this angle, the lack of executive accountability, the impact on federalism, the loss of value of legal pluralism, and the amplification of international law’s democratic deficit, all caution against whittling down Parliamentary scrutiny over the domestication of international law. The concern with such unscrutinized internalization of international law is exacerbated by the judicial incorporation of international law as a distinct channel through which international norms enter the domestic arena, often at a constitutional level.

88 Bhavesh Jayanti Lakhani v State of Maharashtra, (2009)9SCC551 (‘India follows the doctrine of dualism and not monoism (sic)’). 89 Aparna Chandra, Fostering Respect? India’s Engagement with International Law: A Call for Caution (unpublished JSD Dissertation submitted to the Yale Law School, 2013). 90 It is beyond the scope of this paper to present a full critique of the extant international legal order. Scholarship around such critique, particularly from subaltern and Critical Legal Studies perspectives, is abundant. For a third world critique of international law, see B. S. Chimni, Third World Approaches to International Law: A Manifesto, 8 Intl Community L Rev (2006) 3. 123 India and international law: formal dualism, functional monism

India is not alone in facing these challenges on how to engage with international law. Similar concerns regarding the lack of adequate legislative scrutiny over the assumption and internalization of international law obligations have been raised in other common law countries that follow the British model of allocation of powers between the Legislature and Executive as well.91 Many such countries have adopted stringent Parliamentary committee procedures to scrutinize the Exec- utive’s assumption of international legal obligations.92 Whether or not such committee procedures provide adequate scrutiny is a different matter. What is important to note is that countries are adapting their domestic division of powers to respond to new international legal realities. For the reasons mentioned above, India should follow suit.

91 See Joanna Harrington, Scrutiny and Approval: The Role for Westminster Style Parliaments in Treaty- Making, 55 Intl & Comparative L Quarterly (2006) 121. 92 Ibid. 123