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State Practice of Asian Countries in the Field of International Law·

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State Practice of Asian Countries in the Field of International Law· STATE PRACTICE OF ASIAN COUNTRIES IN THE FIELD OF INTERNATIONAL LAW· INDIA JUDICIAL DECISIONS· Fundamental rights: right to life under the Constitution of India; Defence of sover­ eign immunity as a doctrine of municipal law not applicable; Relevant provisions of the International Covenant on Civil and Political Rights elucidating and effectuating fundamental rights are enforceable Supreme Court, 5 February 1997 AIR 1997 SC 1203 B.PJEEVAN REDDY, SUHAS CJAIN JJ PEOPLE'S UNION FOR CML UBERTIES (PUeL), Petitioner V. UNION OF INDIA & ANOTHER A. The case The case came before the Supreme Court in the form of writ petition (criminal) un­ der Article 32 of the Constitution. The petition was filed for the issuance of a writ of mandamus or other appropriate order, inter alia, to direct appropriate action against po­ lice officials who had erred, and to award compensation for the fact that two persons were shot dead by the police while in custody. B. The judgment B.P JEEV AN REDDY J delivered the judgment. The Court referred to, inter alia, Challa Ramkonda Reddy v. State of Andhra Pradesh, AIR 1989 Andh Pra 235, dealing with the liability of the State where it de­ prived a citizen of his right to life guaranteed by Article 21 of the Constitution: • Edited by Ko SW AN SIK, General Editor •• Contributed by GoVINDRAJ HEGDE, Iawaharlal Nehru University, New Delhi. Asian Yearbook of International Law, Volume 7 (Ko Swan Sik et al., eds. ~ Kluwer Law International; printed in the Netherlands), pp. 281-320 281 Ko Swan Sik, M.C.W. Pinto, and S.P. Subedi - 9789004400665 Downloaded from Brill.com10/11/2021 05:41:15AM via free access 282 ASIAN YEARBOOK OF INTERNATIONAL LA W "It was held, '[ ... ] The State has no right to take any action which will deprive a citizen of the enjoyment of this basic right except in accordance with a law which is reasonable, fair and just'. The decision also dealt with the question whether the plea of sovereign immunity is available in such a case. The following observations are relevant: 'The question, however, arises whether it is open to the state to deprive a citizen of his life and liberty [ ... ] and yet claim an immunity on the ground that the said deprivation of life occurred while the officers of the State were exercising the sovereign power of the State?' ... " The Court also referred to Nilabati Behera alias Lalita Behera v.State of Orissa, 1993 (2) SCC 764; AIR 1993 SCW 2366 and observed that in that case " ... this Court held that award of compensation in a proceeding under Article 32 [of the Constitution] by the Supreme Court or under Article 226 by the High Court is a remedy available in public law based on strict liability for contravention of funda­ mental rights. It is held that the [municipal law] defence of sovereign immunity does not apply in such a case even though it may be available as a defence in private law in an action based on tort. [ ... ] The reference to and reliance upon Article 9(5) of the International Covenant on Civil and Political Rights, 1966, in Nilabati Behera ... raises an interesting ques­ tion, viz., to what extent can the provisions of such international cove­ nants/conventions be read into national laws ... It is not clear whether our Parliament has approved the action of the Government of India ratifying the said 1966 Covenant. Assuming that it has, the question may yet arise whether such approval can be equated to legislation and invests the Covenant with the sanctity of law made by Parliament. As pointed out in S.R.Bommai v. Un­ ion of India, (1994) 3 SCC 1; 1994 AIR SCW 2946, every action of Parliament cannot be equated to legislation. Legislation is no doubt the main function of the Parliament but it also performs many other functions all of which do not amount to legislation. In our opinion, this aspect requires deeper scrutiny than has been possi­ ble in this case. For the present, it would suffice to state that the provisions of the Covenant, which elucidate and go to effectuate the fundamental rights guaranteed by our Constitution, can certainly be relied upon by Courts as facets of those funda­ mental rights and have, enforceable as such. So far as multilateral treaties are con­ cerned, the law is, of course, different - and definite. " Accordingly the petition was allowed and disposed of with an award of compensation of [ ... ] to the families of the deceased. Right to privacy coming within the ambit of the right to life; Rules of customary international law which are not contrary to the municipal law shall be deemed to be incorporated in the domestic law; Constitution Art.51; In case of conflict the Courts give effect to municipal law over international law; As far as its language permits preference for a construction of municipal law which allows its provisions to be in harmony with international law Supreme Court, 18 December 1996 AIR 1997 SC 568 KULDEEPH SINGH, S.SAGHIR AHMAD JJ Ko Swan Sik, M.C.W. Pinto, and S.P. Subedi - 9789004400665 Downloaded from Brill.com10/11/2021 05:41:15AM via free access STATE PRACFICE 283 PEOPLE'S UNION FOR CIVIL LIBERTIES (PUCL) , Petitioner v. UNION OF INDIA & ANOTIIER A. The case The case came before the Supreme Court in the form of writ petition (civil) under Article 32 of the Constitution. The petition challenged the constitutionality of Section 5(2) of the Indian Telegraph Act, 1885 enabling telephone-tapping by the government authorities. B. The judgment KULDEEPH SINGH J delivered the judgment. The Court held, inter alia: "The word 'life' and the expression 'personal liberty' in Article 21 [of the Constitu­ tion] were elaborately considered by this Court in Karak Singh's case (AIR 1%3 SC 1295). The majority read 'right to privacy' as part of the right to life under Article 21 of the Constitution .... We have, therefore, no hesitation in holding that right to privacy is a part of the right to 'life' and 'personal liberty' enshrined under Article 21 .... " The Court observed that India is a signatory to the International Covenant on Civil and Political Rights, 1966, referred to Article 17 of the Convention and Article 12 of the Universal Declaration of Human Rights, and continued: "International law today is not confined to regulating the relations between the States. [Its] scope continues to extend. Today matters of social concern, such as health, education and economics apart from human rights fall within the ambit of International Regulations. International law is more than ever aimed at individuals. It is [an] almost accepted proposition of law 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. Article 51 of the Constitution directs that the State shall endeavour to, inter alia, foster respect for international law and treaty obligations in the dealings of organised peoples with one another. "I The Court here referred to SIKRI C.J. in Kesavananda Bharathi v. State of Keraia, 1973 Supp.SCR 1; AIR 1973 SC 1461. The Court also referred to KHANNA J's minority opinion in A.D.M.Jabalpur v. S.Shukia, AIR 1976 SC 1207, which contained the fol­ lowing paragraph: "Equally well established is the rule of construction that if there be a conflict be­ tween the municipal law on one side and the international law or the provisions of I Art.51 reads as follows: "The State shall 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 dealings of organised peoples with one another; and (d) encourage settlement of international disputes by arbitration." Ko Swan Sik, M.C.W. Pinto, and S.P. Subedi - 9789004400665 Downloaded from Brill.com10/11/2021 05:41:15AM via free access 284 ASIAN YEARBOOK OF INTERNATIONAL LA W any treaty obligations on the other, the Courts would give effect to municipal law. If, however, two constructions of the municipal law are possible, the Courts should lean in favour of adopting such construction as would make the provisions of the municipal law to be in harmony with the international law on treaty obligations. Every statute, according to this rule is interpreted, so far as its language permits, so as not to be inconsistent with the comity of nations on the established rules of inter­ national law, and the Court will avoid a construction which would give rise to such inconsistency unless compelled to adopt it by plain and unambiguous language." Accordingly, the writ petition was allowed. JAPAN JUDICIAL DECISIONS· Competence of Consul under the Soviet-Japanese Treaty on Consular Relations and general international law Tokyo High Court, 22 February 1994 2 Hanrei Taimuzu [Law Times Reports] No.862 (1995) 295 RUSSIAN FEDERATION (SOVIET UNION) V. Y In this case the validity of the declaration of interdiction made by the Soviet Consul in Tokyo on a Soviet national residing in Japan was disputed. The High Court, dismissing the appeal by the Soviet Union (which was later suc­ ceeded by the Russian Federation in the High Court proceedings), essentially repeated the arguments of the District Court. The Court ruled, first, that the powers of a Consul are limited to those which have been agreed between the sending and the receiving state. Second, the Vienna Convention on Consular Relations can not be invoked as Japan's consent to the competence con­ cerned, because it does not refer to the declaration of interdiction, and because the Soviet Union was not a party thereof.
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