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(This is a guest post by Shubhangi Agarwalla.)

Since the late 1970s, the Supreme Court, on the basis of Article 51 of the Constitution of India, has started articulating a sense of obligation towards applying international law in its decisions. The high visibility of the cases in which the Court has called upon international law has brought a lot of attention to this practice.

Monism and Dualism

Historically, the doctrines of monism and dualism have been used to understand the relationship between the international and the domestic 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. Dualists however believe that international and domestic laws operate in distinct spheres and so the only mechanism for the transformation of international law into domestic law is through the medium of regular domestic law-making processes.

As doctrines, monism and dualism are formalistic constructs that fail to reflect the numerous ways in which global legal interactions take place, especially in light of the increasing overlap of the international and domestic legal orders. However, they are given importance by various state authorities. India, for example, allocates powers in relation to international law along the dualist paradigm. The relevant part of Article 51 exhorts the state, and not the courts, “to foster respect for international law and treaty obligations in the dealing of organized people with one another.” The Constitution Assembly debates barely shed any light on the intent, scope, or content of the provision. 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.”

Interestingly, an argument can be made that the purpose of Art. 51 was never meant to be enforced by the judiciary to invoke international norms. 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.’ Based on this Declaration, and after going through various drafts and amendments, the Art. took its present shape. The debates indicate that Art. 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.

In Search of a Principle

Unfortunately, the Court has used international law norms with cheerful abandon and offered little by the way of justification and explanation for this interpretive move. This has invited criticism that judges assert international law for its status as opposed engaging with its content. The failure of the Court to justify its use of international material is of legal significance. Take for example, Narmada Bachao Andolan v UOI, wherein the court relied on ILO Convention 107 just because it was law at the time despite the fact that it was being hotly debated for its assimilationist and paternalistic approach towards the indigenous population. This Convention came to be replaced by Convention 169. Thus, read against jurisprudence as a whole, Narmada was a mistake. Had the Court engaged with the reasons underlying the Convention it would have made it harder to overrule.

Moreover, it has directed the State to give effect to treaties which have not been incorporated into domestic law (PUCL v UOI), judicially incorporated it itself (Vishakha), referred favourably to treaties to which India is not a party (G Sundarajan) without even attempting to address concerns that it causes democratic deficit and is a veiled (if not overt) threat to the doctrine of separation of powers.

Separation of Powers and Democratic Deficit

The argument about separation of powers is that pursuant to Art 141, the role of the judiciary is to declare law and not to make law. In Vishakha, the Court relied on Art. 11 of CEDAW, an unincorporated treaty, to frame guidelines for addressing sexual harassment in the workplace. This amounts to an encroachment on the law-making domain of the Legislature.

The argument about the democratic deficit is as follows- international law is not generated within the institutional framework of liberal constitutional democracy and does not allow for a central role for electoral supervision. Theoretically, it may be argued that given the consent requirement for treaties, all that is necessary to ensure constitutional legitimacy is to establish a constitutional framework that ensures that the Executive who is authorized constitutionally to give that consent is subjected to adequate democratic controls domestically. However, it is doubtful that much legitimating value can be placed on a state’s consent to a treaty, when the state is confronted with a take it or leave it option by economically powerful Western nations which are notoriously difficult to hold accountable and the international institutions they control. Moreover, the costs of not participating or deviating from the international standard are prohibitively high, as monitoring and enforcement mechanisms are strengthened.

Thus, although state actors are participants in the international legal process, this cannot meaningfully be connected to an ideal of national self-government either with regard to the procedures followed or outcomes generated. Modern customary international law significantly discounts the requirement of long, general and consistent state practise followed by states from a sense of legal obligation in favour of an approach that focuses primarily on international pronouncements. Particularly in the area of human rights, declarations made by representatives of states either in international fora such as the General Assembly or in the context of multilateral treaty-making are central to the inquiry whether a rule of CIL has developed or not. Here too the effect is to further disconnect the creation of an international legal obligation from a state’s specific consent. Moreover it does not have sufficient legal content to be norm-creating. So when judges rely upon customary international law (Vellore) they expand their own power at the cost of the democratic process.

 There are accusations that this is an exercise in self-interest for judges make persuasive use of international law to window-dress a judgement that has already been reached on other grounds and further their own standing in the transnational judicial network. All these concerns get compounded by the lack of representation and bargaining power India has in international bodies. It is doubtful that much legitimating value can be placed on India’s consent to a treaty when the cost of not participating are prohibitively high. This increases the burden on the Court to justify its use of international law especially when it is directly incorporating it. As Bickel explains, in liberal democracies, the power of judicial review cannot be legitimised through democratic accountability so the very legitimacy of the institution hinges on its interpretive methodology.

A Model of Engagement

Thus, in the absence of any guidance from the Constitution, this becomes a question of principle. I argue that there is merit in engaging with international law as opposed to rejecting it or completing converging it with domestic law.

First, the duty to obey international law is a function of its legitimacy. The subject matter of international law has expanded significantly. Today there is significant overlap between the kind of questions that traditionally have been addressed by liberal democracies as domestic concerns and the kind of questions that international law addresses. In the context of Chapter VII of the UN Charter, for example, international peace and security encompasses concerns relating to money laundering and national criminal law, as well as violations of human rights. International law, then, has been the handmaiden of denationalization by having generated an increasingly dense set of substantive rules that directly concern questions traditionally decided by national legal processes. Scholars argue that international law reflects an emerging consensus on certain normative commitments. Thus, the Court may find it helpful to read international law not necessarily to borrow solutions but rather to test out ones supported by its own domestic traditions against other’s experiences. Moreover, they contend that norms from the domestic order get universalised and become international norms so relying on international law is simply a re-import of those ideas (for example democracy becomes self-determination). Under some circumstances, notably those involving groups disadvantaged in the political process, the outcomes of a non-parliamentary procedure may be preferable over the outcome of a parliamentary procedure. From the vantage point of a member of such a group, international law gives them the legal vocabulary to assert their rights.

Thus, we cannot simply reject international law as a whole. At the same time, international law itself comes in different shapes and sizes-and not all international law norms are progressive. This necessitates the attitude of openness towards international law to be tempered with careful evaluation of the suitability of its norms in the country’s specific domestic contexts. For example, while the use of CEDAW in Vishakha helped fill a gap on sexual harassment in the workplace, this new law through the wholesale importation of entire convention without any analysis, failed to reflect the reality of caste based discrimination India, leaving no recourse for women in the informal sector.

Second, reliance on any foreign source heightens constitutional self-understanding. International law can be used effectively to identify many assumptions, both factual and normative, inherent in Indian constitutional adjudication. By asking why international law has reasoned a certain way the Court will be forced to ask itself why it reasons the way it does. In case of a difference, it will have to justify its reasoning. International law is no treated as binding authority on constitutional interpretation- the Court may choose to accept or reject international law, as the Court may consider academic scholarship. At this stage, the presumption may be in favour of Indian cultural norms over international norms, to overcome the problem of democratic deficit. According to Habermas, citizens of a nation often use constitutional discourse as a means to “clarify the way they want to understand themselves as citizens of a specific republic, as inhabitants of a specific region, as heirs to a specific culture, which traditions they want to perpetuate and which they want to discontinue, and how they want to deal with their history.” Citizens want their law to reflect their values. Identifying what these values are is a comparative exercise. Only by placing our values against another can we have any claim to uniqueness. This serves both a functional and an expressive function. Functionally, it heightens the Court’s ability to understand its own constitutional commitments and expressively, it reflects the Court’s effort to either break away from a troubled past by showing concern for international human rights law or to distinguish itself from norms with which it disagrees. This is similar to how precedent is used both to promote its legitimacy and to reflect alignments with favoured or disfavoured cases of the past.

South African constitutional jurisprudence has much to offer by way of example in this regard. In Ministry of Home Affairs v Fourie, the South African constitutional court concluded that under its constitution, limitations of marriage to exclude same sex couples was unconstitutional. Justice Sachs recognised that international law does not afford protection to same-sex marriages, but also nothing in the international instruments forbade recognition of such marriages. The petitioners had referred to the UDHR, which encapsulates the right of “a man and a woman” to marry and has a heteronormative conception of the term “family” but Justice Sachs said their reading or UDHR was incorrect and that “rights will atrophy if they are frozen.”

In case, the assumptions are similar, the Court can still ask why these assumptions ought to be shared. Even if it doesn’t lead to legal change it can serve as a device to affirm a constitutional identity, and increase its internal legitimacy. This goes beyond a mere confirmation bias. The entire process of engagement exposes domestic traditions as practises which are mutable and circumstantial. Moreover, it can still look for ways to implement this shared assumption. All in all, this model of engagement ought to be preferred over complete rejection or convergence because it makes no normative claims about international law norms- it simply uses these norms instrumentally, as a means to stimulate constitutional self-reflection.

Third, engagement can work both ways. Not only does it have the potential to uncover the assumptions in Indian Constitutional law but it can also uncover the assumptions present in international law, particularly through soft law. The Court has unreflectively applied soft law like the Yogakarta principles (NALSA) which are framed not by states but by human rights experts. In failing to engage with these principles dialogically, the Court may have missed an opportunity to assist in the re-characterisation of international norms so that they better reflect the Third World experience.

In Navtej Johar, Justice Chandrachud followed a similar model while invoking comparative case law from various jurisdictions. He used comparative constitutional law as one of the many sources, and not a central one at that to advocate for the decriminalisation of homosexuality. International law should be used in a similar vein to facilitate the development of, and reasoning within, our established constitutional tradition.