Customary International Law in India – UPSC GS2

Context: Parliamentary committee on external affairs has presented a report titled “India and international law” in the Lok Sabha. The report discusses how Indian courts have dealt with international law.
What is Customary International Law (CIL)? 
  • CIL refers to international law norms derived from a custom.
  • They are binding legal rules that have developed on global or region levels through continued practice.
CIL as per Constitution:
  • As per Article 253 of the Indian Constitution, an act of Parliament is necessary to transform international law into municipal law.
  • Hence, India follows the principle of “dualism”.
  • This means that international law does not automatically get incorporated into the domestic legal regime.
CIL as per SC:
  • Supreme Court has moved from the principle of dualism towards monism.
  • SC has been of the view that CIL, unless contradictory to domestic law, is part of the Indian legal regime even if the parliament has not enacted a law for that.
  • In Vellore Citizens Welfare Forum v. Union of India it held that CIL which is not contrary to the municipal law shall be deemed to have been incorporated in India’s domestic law.
  • This principle has been affirmed in subsequent decisions like in Research Foundation for Science v. Union of India. Here, the SC, relying on the Vellore Citizen case, declared that the precautionary principle, an environmental law concept, is part of CIL and thus part of Indian law.  
What are the positives of this practice? 
  • Most countries have been incorporating CIL as part of the domestic legal regime, so the Supreme court’s practice is in line with international practice.
  • It provides judiciary with an opportunity for making the law progressive, especially when the executive and the parliament for ideological or political persuasions fail to enact laws transforming a liberal international legal norm into domestic law.
  • CIL is sometimes very easily accepted as part of Indian law. For instance, the Supreme Court quite readily accepted the precautionary principle, but it is yet to get wide global acceptance.
  • However, SC hasn’t been consistent in incorporating CIL. Example: In the Mohamad Salimullah v. Union of India, the court refused to stop the deportation of Rohingya refugees to Myanmar despite the principle of nonrefoulement being part of CIL.
  • It goes against the democratic practice and creates a democratic deficit.
  • As judicial incorporation of international law is the violation of separation of power and judiciary overtaking Parliament’s right. The committee argues that this could become a bone of contention between the judiciary and the other organs of the state.
Way forward:
  • India has indeed moved away from the principle of dualism towards monism by judicially incorporating not just CIL but also international treaties, including those treaties that India has not signed.
  • Recommendation for executive: However, the Committee recommends that the executive should try to fill in the vacuum in domestic legislation on customary international law and should develop adequate domestic law.
  • Recommendation for the Judiciary: The Supreme Court needs to conduct such an analysis before incorporating the CIL in domestic law.

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