SSRN Id4210902

The Supreme Court of India and International Law: A topsy-turvy Journey from
Dualism to Monism
Prabhash Ranjan
Abstract
In the relationship between international law and national law, the normative framework
enshrined in the Indian Constitution is of formal dualism. Thus, international law does not
become part of the Indian legal regime until it goes through a process of transformation i.e. the
parliament passing legislation to implement international law. However, the Supreme Court of
India has moved away from this formal dualism toward the monist tradition of incorporating
international law in the domestic legal regime provided the international law is not inconsistent
with domestic law. This paper traces this journey. It argues that while the Supreme Court has
indeed moved towards the doctrine of incorporation, this shift is riddled with several
inconsistencies and incoherence. While judicial incorporation of international law may not be
a bad thing, the court needs to demonstrate greater analytical rigour in dealing with
international law, both treaty law and binding customary norms.
Keywords: Supreme Court of India, India, international law, domestic courts, dualism,
monism, custom, treaty, transformation, incorporation.

Professor and Vice Dean (Continuing Education), Jindal Global Law School, O P Jindal Global University,
Sonipat, Delhi-NCR, India. The author is grateful to the Federation of Indian Chambers of Commerce and Industry
(FICCI) for their support of this research work. The author also thanks the two reviewers for their useful comments
and to Tanaya Thakur and Utkarsh Rai for their research assistance.
Electronic copy available at: https://ssrn.com/abstract=4210902

A. Introduction
Globalisation has augmented the encounter between domestic legal norms and international
law. This, in turn, has led to a greater interaction between domestic courts and international
legal norms, which has attracted considerable attention globally (Nollkaemper, 2011;
Nollkaemper, 2014; Verdier & Versteeg, 2015). In India too, the interactions between domestic
courts and international law have engrossed scholars (Chimni, 2019; Hegde, 2010; Rajamani,
2016; Mani, 1997; Chandra, 2017). The purpose of this paper is to critically analyse how the
Supreme Court of India (SCI) – India’s apex court – has applied international law over the last
several decades while deciding domestic disputes.
Historically, there are primarily two theories that govern the relationship between international
law and domestic law. According to the first theory, known as dualism, international law and
national law are two separate legal systems. (Shaw, 2017) International law is a law that
governs the relationships between sovereign States whereas national or municipal law applies
within a country and governs the relations of its citizens with each other and with the executive.
(Brownlie, 2008) Thus, under the dualist tradition, the State has the supreme authority within
its domestic jurisdiction. (Brownlie, 2008) International law can become a part of the domestic
legal system only if it has been specifically transformed into domestic law through enabling
legislation. In other words, for international law to apply domestically within a national legal
system, it must go through a process of transformation by the State (such as by the sovereign
parliament of the country) into domestic legislation. This is known as the doctrine of
transformation.
On the other hand, the second theory, known as monism, considers international law and
national law as a part of an inseparable legal framework. (Shaw, 2017) Monists oppose the
strict division of the law between international and municipal as argued by dualists. (Shaw,
2017) Thus, according to monism, international law is automatically incorporated into the
domestic legal system of the country. It need not go through a process of transformation by the
State such as enacting enabling legislation to implement the international law. Thus, in a monist

system, international law, on incorporation becomes part of the hierarchy of domestic legal
sources.
Arguably, the monist/dualist lens to examine the relationship between national law and
international law is an archaic one because neither of the two systems exists in their pure form
(Bogdandy, 2008). States do not adopt a pure monist or dualist approach for all sources of the
law. For instance, courts may hold that international treaties become part of domestic law only
if they go through the process of transformation, whereas customary international law (CIL)
may be incorporated without any legislative transformation. Also, the monist/dualist binary
does not adequately capture all the nuances of domestic courts dealing with international law.
For instance, in the legal system of the United States (US), although all treaties are part of the
supreme law of the land, a difference is often drawn between self-executing treaties (treaties
that apply directly as part of the US law without any legislative action) and non-self-executing
treaties (treaties that require legislative implementation before they can be applied by domestic
courts) (Sloss, 2011).
Moreover, new lenses are emerging to study the relationship between international law and
domestic law or domestic courts such as ‘populism’. Populist regimes often attack international
law as ‘foreign law’ detached from the interests of people at home (Krieger, 2019).
Consequently, courts may feed into this populism by eschewing referring to international law
despite monist or dualist traditions. In Israel, for instance, it has been observed that courts are
shifting away from international law partly due to the rise of populism in Israel and populist
attacks on the Israeli courts (Brandes, 2019).
Notwithstanding the weaknesses of the dualist/monist lens or the emergence of new

methodologies like populism to study the relationship between international law and domestic
law or domestic courts, this paper adopts the lens of monism/dualism to understand how the
SCI has dealt with international law because, as Chandra argues, the decision-makers in India
continue to give importance to the theories of dualism and monism (Chandra, 2017). The SCI
uses the monist/dualist framework whenever there is an interface between Indian law and
international law. For instance, the SCI in a case known as Union of India vs Agricas,1 (a case
discussed later in the paper) decided recently in 2020, while dealing with the relationship
between domestic law and international law invoked the theories of monism and dualism. Thus,
1
Union of India v Agricas Llp, Transfer Petition (Civil) Nos. 496-509 OF 2020

this theoretical lens is relevant in understanding how the SCI has dealt with international law.
Employing the monist/dualist lens, the paper will show that the SCI in its dealings with
international law, over the last seven decades, has moved away from the tradition of dualist-
transformation toward monist-incorporation. This transition has been led by the SCI despite
the Indian Constitution recognising India as a dualist nation. Building on the work of Chimni
(Chimni, 2019), Hegde (Hegde, 2013), Chandra (Chandra, 2017), and Rajamani, (Rajamani,
2016) this paper critically discusses this judiciary-led transition that is peppered with
innumerable twists and turns. These twists and turns such as inconsistency in the application
of CIL, or the fact that the principle of dualism keeps making a comeback, haven’t been
sufficiently captured by the existing literature.
There are two additional reasons to closely study this development. First, there is a flourishing
interest globally in studying how domestic courts apply international law in settling disputes
(Nollkaemper and Reinisch et al, 2018; Oxford Reports, 2021). This study examining how SCI
has applied international law will thus contribute to this global scholarly endeavour. Second,
the decisions of the SCI are often cited by the courts of several Commonwealth countries.
According to a study, since 2009 510 decisions rendered by the courts of countries like
Bangladesh, Malaysia, Pakistan, Singapore, Fiji, etc. have cited SCI judgments (Gupta, 2021).
Thus, SCI is an important court whose jurisprudence evokes global interest, especially in the
developing world.
To study this transition from dualist transformation to monist incorporation, the paper examines
how the SCI has dealt with international treaties and CIL. As is well known, out of three formal
sources of international law given in Article 38(1) of the Statute of the International Court of
Justice (ICJ),2 (Statute of International Court of Justice, 1945) treaty and custom are the two
most important sources of international law. The paper is divided into the following parts. Part
B briefly offers the normative framework that applies in the context of the Indian Constitution
on the relationship between international law and domestic law. Part C deals with how the SCI
2
Article 38(1) of the ICJ provides: “The Court, whose function is to decide in accordance with international law
such disputes as are submitted to it, shall apply:
(a) international conventions, whether general or particular, establishing rules expressly recognized by the contesting
states;
(b) international custom, as evidence of a general practice accepted as law;
(c) the general principles of law recognized by civilized nations;
(d) subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists
of the various nations, as subsidiary means for the determination of rules of law”.

has dealt with international treaty law. In part D, the paper turns its attention to the SCI’s
dealing with CIL. Part E draws important conclusions from the discussion.
B. International law in the Indian Constitution: the normative framework
Since the normative framework on the relationship between international law and domestic law
within the Indian Constitution has already been discussed at length elsewhere, (Hegde, 2013;
Chimni, 2019; Rajamani, 2016; Mani, 1997) this paper discusses the issue briefly. Three key
provisions in the Indian Constitution relate to international law – Article 51(c), Article 246 (1)
(read with entry 14 of the Union List of the Seventh Schedule of the Constitution that
enumerates powers of the Union), Article 73(1)(a) and Article 253.
Article 51 (c) of the Constitution provides:
The State shall foster respect for international law and treaty obligations in the dealings of
organised peoples with one another; and encourage settlement of international disputes by
arbitration.
This Article occurs in part IV of the Indian constitution that contains the ‘directive principles
of State policy’. The provisions given in part IV of the Indian Constitution are not binding on
the State. Nonetheless, they are considered of far-reaching importance in the governance of the
country.3 (Chimni, 2019; Constitution of India, 1950) Since Article 51(c) imposes an obligation
on all Indian State authorities to ‘foster respect’ for ‘international law’, the SCI has used Article
51(c) as the entry point to incorporate international law in its decisions. The term ‘international
law’ in Article 51(c) refers to all obligations from all sources of international law, which will
cover CIL. (Chimni, 2019; Alexandrowicz, 1952: 289-291) In other words, since the term
‘treaty obligations’ denotes the obligations that will flow from an international treaty,
‘international law’ will cover the other (non-treaty) sources of international law.
3
See also Article 37 of Part IV of the Constitution of India, which states: “Application of the principles contained
in this part—The provisions contained in this Part shall not be enforceable by any court, but the principles therein
laid down are nevertheless fundamental in the governance of the country and shall be the duty of the State to apply
these principles in making laws”. Further Article 38 of the Indian Constitution signifying the importance of
directive principles of State policy’, provides: “The State shall strive to promote the welfare of the people by
securing and protecting as effectively as it may a social order in which justice, social, economic and political,
shall inform all the institutions of the national life”.

Apart from Article 51(c) which imposes a generic application to ‘foster respect’ for
‘international law’, the Indian Constitution delegates the power to enter and implement
international treaties to the Indian parliament. This can be deduced from a combined reading
of Article 246(1) with entry 14 of the Union list given in the seventh schedule4(Constitution of
India, 1950) of the Constitution. The Union list contains the items on which the Indian
parliament has the exclusive power to legislate. the powers of the Union i.e., the parliament
and the union executive or the central government.
Article 246(1) provides:
Notwithstanding anything in clauses (2) and (3), Parliament has exclusive power to make laws
for any of the matters enumerated in List I in the Seventh Schedule (in this Constitution referred
to as the Union List).
Entry 14 of the Union list contains the following item: Entering into treaties and agreements
with foreign countries and implementing of treaties, agreements and conventions with foreign
countries.
Thus, entry 14 of the Union list acknowledges the competence of the parliament to decide on
matters about entering into treaties with foreign countries and implementing these treaties
domestically. This could mean the Parliament enacting a law that will regulate the process of
India entering into international treaties and accepting international treaty obligations. This
regulation could involve aspects like who, on behalf of the Indian State, will sign the
international treaty, who will have the power to ratify the treaty, what processes will be
followed in the process of treaty ratification, etc. However, the Indian parliament, in the last,
72 years of India becoming a Republic has not enacted any such legislation.
In this regard, it is also important to look at Article 73 of the Indian Constitution. Article
73(1)(a) provides:
4
The seventh schedule of the Indian Constitution allocates powers and functions between the Union and the
States. In addition to the Union list, the seventh schedule contains two more lists - the State List (containing items
on which the state legislatures can legislate) and the Concurrent List (containing items on which both the
parliament and the state legislatures can legislate).

Subject to the provisions of this Constitution, the executive power of the Union shall extend to
the matters with respect to which Parliament has power to make laws;
Under Article 73, the executive power of the Union i.e. the central government of India extends
to the matters on which the parliament has the power to make laws. Thus, the power of the
central government extends to entry 14 of the Union list. In the absence of parliamentary
legislation on entering into treaties, the central government, through a combined reading of
Article 73(1)(a) and Entry 14 has been entering into different international treaties, ratifying
them and thus binding India internationally as far these treaties are concerned.5
The other important provision in the Indian Constitution on international law is Article 253,
which provides:
Notwithstanding anything in the foregoing provisions of this Chapter, the 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. (Constitution of India, 1950)
Article 253 gives the parliament the power to make laws for the whole country or any part to
implement an international treaty including on subjects that fall within the legislative
competence of States. Thus, if the domestic implementation of treaty norms requires changes
in the domestic norm, then the parliament will be required to enact a law. 6 The international
treaty signed by India will not, on its own, become part of the Indian legal system until
appropriate domestic legislation is enacted to give effect to it.7 For international law to become
part of domestic law, it has to be legislatively transformed by enacting enabling legislation.
Having briefly discussed the normative framework enshrined in the Indian Constitution that
recognises formal dualism, the paper now turns its attention to examining how the SCI has
dealt with international treaties.
5
See Ram Javaya Kapur v State of Punjab AIR 1955 SC 549 where the Supreme Court held that the Executive
can exercise power over matters in the Union List even in the absence of legislation as long as the Executive does
not violate any law.
6
Maganbhai Ishwarbhai Patel v Union of India (1970) 3 SCC 400
7
Jolly George Varghese v Bank of Cochin AIR 1980 SC 470

C. Dealing with Treaties
The SCI has often referred to various international treaties such as human rights agreements,8
environmental conventions,9 tax treaties,10 international trade agreements,11 etc. in its
judgments for various purposes. The court in M/S Entertainment Network v. M/S Super
Cassette Industries12 gave the following six purposes for referring to international law: first, as
a tool to interpret domestic law; second, to justify or fortify a position taken by the court; third,
to fulfill the spirit of an international treaty, which India has entered into provided it does not
conflict with domestic law; fourth, to reflect international changes; fifth, to provide a relief
given in the treaty, but not in national law; and sixth, to fill gaps in the law.
Relying on an international treaty to provide relief missing in domestic law is possible only if
the treaty is incorporated into the legal regime. In other words, the SCI has invoked
international treaties not just as a tool of interpretation but also to incorporate international law
norms, not inconsistent with domestic law, even without a legislative sanction.
To examine SCIs’ dealing with international treaty law, the discussion is split into four parts.
First, the paper shows how in the years after India’s independence, the SCI relied upon the
dualist doctrine of transformation in its dealing with international treaty law. Second, the paper
8
See Sambhavana v. University of Delhi (2013) 14 SCC 781 where the court referred to the United Nations
Convention on the Rights of Persons with Disabilities to interpret Persons with Disabilities (Equal Opportunities,
Protection of Rights and Full Participation) Act, 1995. See also Jeeja Ghosh v. Union of India 7 SCC 761 (2016)
where the SCI referred to the same convention to address a case of discrimination against a person with a
disability. See also Supreme Court of India v. Subhash Chandra Agarwal, 5 SCC 481 (2020); Kirti v. Oriental
Insurance Co. Ltd 2 SCC 166 (2021); Amish Devgan v. Union of India (2021) 1 SCC 1.
9
Centre For Environment Law, World Wide Fund India vs Union of India and Others 8 SCC 234 (2013) where
the court referred to several environmental conventions such as the Convention on Biological Diversity. See also
Hanuman Laxman Aroskar v. Union of India 15 SCC 401 (2019); Sridevi Datla v. Union of India 2021 SCC
Online SC 235.
10
GVK Industries Ltd. v. ITO (2015) 11 SCC 734
11
Cement Companies Ltd. v. Commissioner of Customs (2001) 4 SCC 593; State of Punjab and Anr. v. Devans
Modern Breweries Ltd. and Anr (2004) 11 SCC 26; Commissioner of Customs, Bangalore v. G.M. Exports and
Ors (2016) 1 SCC 91.
12
M/S. Entertainment Network vs M/S. Super Cassette Industries (2008) CIVIL APPEAL NO. 5114 OF 2005.

discusses how this practice changed with time. The court moved away from the doctrine of
transformation and started judicially incorporating international treaty law into the domestic
legal framework. Third, as the paper will exhibit, nonetheless, the principle of dualism
reflecting the doctrine of transformation keeps coming back. Fourth, the SCI has also started
judicially incorporating those treaties that India has not signed or ratified.
C.1 Early days: the doctrine of transformation
In relying upon international treaties to interpret domestic law, an important issue has been
whether Indian courts have followed the dualist doctrine of transformation or the monist
doctrine of incorporation. In cases immediately after independence, the SCI while dealing with
the status of international law in the domestic legal regime laid down the dualist doctrine of
transformation following the normative framework of the constitution. In Maganbhai
Ishwarbhai Patel vs Union of India13, a 1969 case, related to the cessation of Indian territory,
the court held that under the Constitution, the obligations arising under the agreement or treaties
are not by their own force binding upon Indian nationals or others. Accordingly, the power to
legislate in respect of treaties lies with the parliament, and enacting a legislation is necessary
when the international treaty restricts the rights of citizens or modifies the laws of the State.
The court went on to hold that if the rights of the citizens are not affected, there is no need for
a legislative measure to give effect to the agreement or treaty.
The issue of the relationship between international law and domestic law also came up in a
1969 case known as Tractor Export, Moscow v. Tarapore,14 which involved the interpretation
of domestic law on enforcement of arbitral awards in the light of the New York Convention on
the Recognition and Enforcement of Foreign Arbitral Awards. The SCI, in this case, held that
an international treaty does not operate on its own in India without a domestic legislation.
Furthermore, the court held, that the task of a domestic court is to apply domestic law by
construing it according to its clear meaning even if its meaning is contrary to international law.
Although the SCI rejected accepting the New York Convention as part of India’s corpus juris,
it held that the international treaty assumes importance if the meaning of the domestic statute
is not clear and, thus the domestic statute is capable of being interpreted in multiple ways. In
13
Maganbhai Ishwarbhai Patel vs Union of India (1970) 3 SCC 400
14
V/O Tractor Export, Moscow vs M/S. Tarapore & Company (1969) 1 1970 SCR (3) 53

such a scenario, the interpretation of the domestic statute that aligns with the international treaty
should get precedence over the other interpretation.
The SCI examined the interface between international and national law in yet another case,
Jolly George Vergese v. Bank of Cochin.15 The SCI, in this case, involving the arrest and
detention of an individual, dealt with the issue of enforceability of Article 11 of the
International Covenant on Civil and Political Rights (ICCPR)16 in the Indian law. The court
held that ICCPR, in the absence of domestic legislation, is not an “enforceable part of the
corpus juris of India”. In other words, until the municipal law is changed to accommodate the
treaty, what binds the Indian courts is the former not the latter. Thus, SCI held in this case that
the international treaty must go through the process of transformation i.e. it should be
transformed into municipal law through enabling legislation for it to become part of India’s
domestic law.
In a 2004 case, State of West Bengal v. Kesoram Industries17, while discussing the issue of
interpreting domestic law in the light of international treaties, the SCI reiterated the legal
principle held in cases like Tractor Export and Jolly George Vergese. The SCI, in this case,
said that the doctrine of dualism, not monism, prevails in India. Thus, an international treaty
signed by India cannot become part of the Indian legal regime unless the parliament, using its
power under Article 253 of the Constitution, enacts a legislation transforming that treaty into
domestic law.18 The SCI distinguished between using the international treaty to interpret
domestic law from giving effect to an international treaty in the absence of municipal law.19
C.2 Moving away from the doctrine of transformation
Notwithstanding the 2004 decision in Kesoram Industries, after the Jolly Verghese case was
decided in 1980, the SCI’s position on the relationship between international law and municipal
15
Jolly George Verghese & Anr vs The Bank of Cochin AIR 1980 SC 470
16
Article 11 of the ICCPR provides: “No one shall be imprisoned merely on the ground of inability to fulfil a
contractual obligation”.
17
State of West Bengal vs Kesoram Industries Ltd. And Ors (2004) Appeal (civil) 1532 of 1993
18
ibid
19
See also Daya Singh Lahoria v. Union of India and others 4 SCC 516 (2001), when construing Section 21 of
the Extradition Act, 1962, the SCI referred to the Extradition Treaty and construed Section 21 in the light of the
international position. See also Apparel Export Promotion Council v. A. K. Chopra (1999) 1 SCC 759.
10

law has changed. The SCI in 1984, in Gramophone Company v. Birendra Bahadur Pandey,20
dealt with the issue of whether international law becomes part of domestic law without an
enabling legislation and whether it overrides domestic law in case of conflict. This case
involved the issue of innocent passage of goods from one country (Singapore) to another
country (Nepal - a land-locked nation) via India. The court, in this case, dealt with the interplay
between the Indian Copyright Act (the law under which the imports of goods to India were
challenged), and India’s trade treaty and transit treaty with Nepal.
The SCI in this case held that “the comity of nations requires 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”.21 Thus, even without an enabling
legislation international law is part of the Indian legal system. The SCI unequivocally laid down
the doctrine of incorporation i.e. the rules of international law are incorporated into national
law without going through the process of transformation. The caveat that the court enunciated
to the doctrine of incorporation was that the international norm should not conflict with
domestic law (Chandra, 2017: 35). In case of a conflict, the court will attempt to harmonize the
domestic and the international norm. However, if such harmonization is not possible then the
domestic norm will trump international law.
The next case that gave a huge fillip to the doctrine of incorporation was Vishakha v State of
Rajasthan.22 The court, in this case, was confronted with the issue of sexual harassment of
women in the workplace. In the absence of any domestic legislation on the matter, the court
turned to international treaties like the Convention on the Elimination of All Forms of
Discrimination against Women (CEDAW]. The court held that “any [i]nternational
[c]onvention 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”.23 The court further held that an accepted rule of judicial
construction is that the courts must take cognizance of “international conventions and norms”
such as for construing domestic law when there is no inconsistency between them and there is
20
Gramophone Company of India Ltd vs Birendra Bahadur Pandey 1984 AIR SC 667
21
ibid
22
Vishaka & Others vs State Of Rajasthan & Ors (1997) See also People’s Union Of Civil Liberties ... vs Union
of India And Anr AIR 1997 SC 3011).
23
ibid
11

a void in the domestic law.24 Thus, the court judicially incorporated international treaties into
the domestic legal system. (Rajamani, 2016:147)
Since the Visakha case, the SCI has repeated the notion of direct importation of international
law into the legal regime in several cases25 (Chandra, 2017: 37). For instance, the SCI in a 2012
case, T.N. Godavarman Thirumulpad vs Union of India26 held that it is settled law that
provisions of treaties that are contrary to domestic laws are deemed to be incorporated into the
domestic law. The court in this case was concerned with whether ‘sandalwood’ (plant of
the genus Santalum) be given special protection under India’s Wildlife Act. In this regard,
the court relied upon international treaties like the Convention on International Trade in
Endangered Species of Wild Fauna and Flora (CITES) which recognises ‘red sandalwood’
as an endangered species.
This principle of judicial incorporation was affirmed in the National Legal Services Authority
v. Union of India,27 a 2014 case that recognised transgender as a third category of gender. In
this case, the court referred to various international treaties on human rights such as the
International Covenant on Civil and Political Rights (ICCPR) in the process of recognising the
transgender community as the third gender in India. The court said: “if parliament has made
any legislation which conflicts with the international law, then Indian courts are bound to give
effect to the Indian law, rather than international law. However, in the absence of contrary
legislation, municipal courts in India would respect the rules of international law.”28
The court then went on to judicially incorporate international treaties by stating that any
international convention, which is not inconsistent with fundamental rights, must be read into
the existing fundamental rights of the right to equality, right to freedom, and right to life and
personal liberty to enlarge their meaning and content. While the court here judicially
incorporated international treaty law, the blanket statement referring to international law gives
an impression that the SCI coalesced all the three formal sources of international law.
24
Ibid. See also Smt. Nilabati Behera Alias Lalit ... vs State Of Orissa And Ors, (1993) SCR (2) 581
25
See also Apparel Export Promotion Council v A.K. Chopra, (1999) AIR 1999 SC 625; Kuldip Nayar v Union
of India, AIR 2006 SC 3127.
26
T.N. Godavarman Thirumulpad vs Union of India & Ors (2012) Writ Petition (Civil) No. 202 of 1995
27
National Legal Services Authority vs Union of India & Ors (2014) Writ Petition (Civil) No. 604 of 2013
28
ibid
12

In the same year, the SCI in Safai Karamchari Andolan v. Union of India,29 while dealing with
the scourge of manual scavenging, relied upon several human rights treaties like the
Convention on Elimination of Racial Discrimination (CERD), and the CEDAW. The court held
that these treaties that have been “ratified by India, are binding to the extent that they are not
inconsistent with the provisions of the domestic law”.30 Thus, the SCI, once again, laid down
the doctrine of incorporation holding that provisions of international treaties that India has
signed bind India provided they are not contrary to domestic law.
A recent case where the SCI followed the doctrine of incorporation is the famous Puttaswamy
v. Union of India,31 a case that declared the right to privacy as a fundamental right under the
Indian constitution. Dealing with the issue of the right to privacy, the SCI referred to various
international human rights law instruments such as the ICCPR and a General Comment of the
UN Human Rights Committee. Following the reasoning offered in the string of cases discussed,
the court said that “in the absence of any specific prohibition in municipal law, international
law forms part of Indian law and consequently must be read into or as part of our fundamental
rights”.32 In other words, international law is part of the Indian legal regime unless it is made
inapplicable by domestic law. The court in the Puttaswamy case, like the previous decisions,
also said that in a situation where domestic law is inconsistent with international law, it would
give effect to domestic law.33 However, the court clarified, that it would not readily presume
any inconsistency.34 On the contrary, the court would make every effort to interpret the
domestic law in a manner that is harmonious with international law.
In all these cases, SCI followed a ‘presumption of compatibility’ or ‘presumption of

consistency’ between domestic law and international law. In other words, wherever possible
domestic law should be interpreted in a manner that does not contradict India's obligations
under international law (Shany, 2005).
There has been one notable instance where the SCI, in a minority judgment, refused to apply
international treaty law because it believed it conflicted with domestic law. This happened in
29
Safai Karamchari Andolan v. Union of India, Writ Petition (Civil) No. 583 of 2003.
30
ibid
31
Justice K.S.Puttaswamy(Retd) ... vs Union Of India And Ors. (2017) Writ Petition (Civil) No. 494 of 2012.
32
ibid
33
ibid
34
ibid
13

the Shayara Bano v. Union of India35, a case where the validity of Talaq-e-biddat - a practice
in Muslim personal law where the husband can divorce his wife, not vice versa, by pronouncing
the word ‘divorce’ three times in one go – was challenged. The SCI in its minority opinion held
that only those international conventions that are not in conflict with domestic law can be relied
upon by the court. The minority opinion held that personal laws are protected under the Indian
constitution as a fundamental right. These personal laws, according to the minority, conflict
with international conventions like International Conventions on Economic, Social and
Cultural Rights (ICESCR), which proscribes discrimination based on gender. Therefore,
personal laws will prevail over international treaty law. Although the majority declared the
practice of talaq-e-biddat unconstitutional, it did not deal with the applicability of international
treaty law.
C.3 Dualism keeps rebounding
Notwithstanding the long line of cases where the SCI incorporated international treaty law in
the domestic legal regime, unless it is contrary to domestic law, perplexingly, the SCI has kept
alive the dualist notion of the doctrine of transformation in some cases. For instance, in a 2004
case, after the Gramophone company and Vishakha cases, the SCI in the Kesoram Industries
case, as discussed before, reiterated that India follows the doctrine of dualism, thus, a treaty
entered into by India cannot become law of the land unless the parliament passes a law as
required under Article 253.
The SCI in 2009, in a case known as Bhavesh Lakhani v. Maharashtra,36 said that India follows
the doctrine of dualism and not monism. Although the court did not elaborate on this point, it
went on to add that to construe a domestic statute, the SCI has taken into account not only the
treaties to which India is a party but also “declarations, covenants and resolutions passed in
different International Conferences”.37 In other words, the SCI, in this case, recognised that
international treaties binding on India are taken into account to interpret domestic law.
Furthermore, the SCI said that not just treaties binding on India, but also covenants
(presumably treaties not binding on India) and declarations and resolutions (soft law
35
Shayara Bano v. Union of India Writ Petition (C) No. 118 of 2016
36
Bhavesh Jayanti Lakhani vs State of Maharashtra & Ors (2009) 9 SCC 551
37
ibid
14

instruments) are also used to interpret domestic laws. The reliance on treaties not signed by
India to interpret domestic law is discussed later in the paper.
The principle of dualism or the doctrine of transformation also finds mention in a recent 2020
case of the SCI, Union of India Union vs Agricas.38 The SCI in this case dealt with the issue of
India imposing quantitative restrictions (QRs)39 on the import of pulses under the Foreign
Trade Development and Regulation (FTDR) Act due to surplus production in India. These QRs
were imposed under Section 3(2) of the FTDR Act.40 Interestingly, the power to impose QRs
under the FTDR Act is laid down in Section 9A.41 The importers of pulses challenged the QR
orders issued by the Indian government under Section 3(2) of the FTDR Act contending that
the power to impose QRs is regulated by Section 9A of the FTDR Act. Therefore, India can
impose QRs only if the conditions given in Section 9A are satisfied. In deciding this question,
the SCI referred to Articles XI and XIX of the General Agreement on Tariffs and Trade
(GATT) of the World Trade Organization (WTO). Article XI prohibits the imposition of QRs
barring in certain situations. Whereas Article XIX of GATT allows countries to impose
safeguard measures against imports that cause serious injury to the importing country’s
domestic industry.
The court in the Agricas case referred to the past SCI decisions that had endorsed the principle
of dualism and said that an international treaty becomes part and parcel of domestic law only
after going through an ‘act of transformation’, which will convert that international treaty into
a binding domestic law before the court. Thus, a provision of an international treaty can be
invoked before a domestic court, only if such a provision has been transformed into domestic
law. The court, in this case, held that Article XI of GATT, which regulates the imposition of
QRs on imports, has not been statutorily transformed into domestic law. Therefore, according
38
Union Of India vs Agricas Transfer Petition (Civil) Nos. 496-509 of 2020.
39
QR is a measure that limits the quantity of products that can be imported or exported.
40
Section 3(2) of the FTDR Act provides: “The Central Government may also, by Order published in the Official
Gazette, make provision for prohibiting, restricting or otherwise regulating, in all cases or in specified classes of
cases and subject to such exceptions, if any, as may be made by or under the Order, the import or export of goods
or services or technology”.
41
Section 9A of the FTDR provides: “Power of Central Government to impose quantitative restrictions—(1) If
the Central Government, after conducting such enquiry as it deems fit, is satisfied that any goods are imported
into India in such increased quantities and under such conditions as to cause or threaten to cause serious injury to
domestic industry, it may, by notification in the Official Gazette, impose such quantitative restrictions on the
import of such goods as it may deem fit”.
15

to the court, Article XI of GATT is of limited use in determining India’s imposition of QRs on
imports of pulses, which has to be decided as per domestic law.
The court, in this case, unlike cases such as Puttuswamy, Vishakha, and National Legal
Services Authority v. Union of India, refused to give effect to Article XI of GATT and
harmoniously construe Section 3(2) of the FTDR Act with Article XI of GATT. Such a
harmonious construction is possible because Article XI.2(c)(ii) of GATT42 allows member
countries to impose QRs on agricultural products to remove a temporary surplus of the like
domestic product. Thus, the court should have interpreted Section 3(2) of the FTDR Act in
light of Article XI.2(c)(ii) of GATT, which is binding on India, rather than stating that Article
XI has not been statutorily transformed into Indian law.
The SCI, in this case, did not follow the ‘presumption of consistency’ between domestic law
and international treaty, as it did in cases like Vishakha and Puttuswamy. The court, curiously,
distinguished the current case that involved an economic issue from those cases where
international treaties on human rights or the environment were relied upon and given effect
domestically. There is indeed a clearly discernible trend among domestic courts in several
countries to increasingly refer to international human rights norms and internalise them in their
domestic legal systems (Sandholtz, 2015). The SCI, seemingly, has followed this pattern. Thus,
international treaty norms pertaining to human rights and environmental protection have been
incorporated to expand the existing fundamental rights such as rights to equality, freedom, and
life. However, the same approach has not been followed in incorporating norms present in
international economic treaties like the WTO/GATT.
At a doctrinal level, the distinction drawn by the SCI in the Agricas case is problematic because
it creates artificial segregation and hierarchy between different international treaty norms –
human rights and environment treaty norms on the one hand, and economic and trade treaty
norms, on the other. It is difficult to argue that while international treaty norms on human rights
and the environment can be judicially incorporated, the same legal principle cannot be used for
international treaty norms on trade or investment Any such distinction will be theoretically
42
Article XI.2(c)(ii) of GATT allows a country to impose QRs “to remove a temporary surplus of the like domestic
product, or, if there is no substantial domestic production of the like product, of a domestic product for which the
imported product can be directly substituted, by making the surplus available to certain groups of domestic
consumers free of charge or at prices below the current market level”.
16

tenable only if it can be shown certain treaty norms on the environment have attained the status
of a peremptory norm.43 Important to recall that international law does not recognise a
hierarchy of norms amongst its formal sources of law i.e., custom, treaty, and general
principles, listed in Article 38(1) of the ICJ Statute. The only hierarchy is between the three
formal sources and the subsidiary source (writings of qualified publicists and judicial
decisions) given in Article 38(1)(d) of the ICJ Statute and between peremptory norms and other
non-peremptory norms, as mentioned before.
C.4 Incorporating treaties to which India is not a party
On the one hand, the SCI refused to incorporate GATT provisions into Indian law in the
Agricas case, despite India being a founding member of both the GATT and the WTO. On the
other hand, there are several instances where the SCI has often judicially incorporated even
those treaties that India has not signed. In other words, even those treaties that do not bind India
internationally have been held to be part of the Indian legal regime, if not inconsistent with
India’s domestic law. One of the earliest cases on this issue was Nilabati Behera v India.44 The
SCI, in this case, applied Article 9(5) of the ICCPR, which provides that “anyone who has been
the victim of unlawful arrest or detention shall have an enforceable right to compensation”. No
law in India allows for such compensation. The important point is that SC applied Article 9(5)
of the ICCPR despite India having a reservation for the same. Thus, technically, India is not
bound by Article 9(5) of the ICCPR. Likewise, in DK Basu v State of Bengal,45 another case
that involved paying compensation for unlawful detention, the Supreme Court took note of the
ICCPR and held that compensation should be given to anyone who has been unlawfully
arrested or detained. The apex court again referred to Article 9(5) of the ICCPR and decided
that, although there is no explicit constitutional provision, the government should nevertheless
pay compensation for the unlawful detainment.46
In one more case known as M V Elizabeth v. Harwan Investment,47 the SCI held that treaties
relating to maritime law can be applied even if India has not ratified these treaties.48 The court
43
A peremptory norm is a fundamental principle of international law which are accepted as such by States and
from which no derogation is possible.
44
Smt. Nilabati Behera Alias Lalit ... vs State Of Orissa And Ors, (1993) SCR (2) 581
45
DK Basu v State of Bengal AIR 1997 SC 610.
46
Also see Rudul Sah vs State of Bihar And Another 1983 4 SCC 141
47
MV Elizabeth v Harwan Investment & Trading Pvt Ltd, Goa AIR 1993 SC 1014
48
ibid
17

said, in this case, that these treaties contain “unified rules of law drawn from different legal
systems”.49 According to the court, despite the non-ratification of these maritime treaties, they
embody principles of law recognised by the generality of maritime States, and can therefore be
regarded as part of India’s common law.50
The principle laid down in the M V Elizabeth case has been endorsed by the SCI in subsequent
cases such as in Liverpool & London v M V Sea Success.51 The SCI held that even if Indian
law lags behind the development of international law because of the non-adoption of various
maritime treaties, these treaties represent the international development of the maritime laws
of the world.52 Consequently, they should be regarded as the international common law or
transnational law rooted in and evolved out of the general principles of national laws.53 The
court further held that in the absence of specific statutory provisions, this international law can
be adopted and adapted by courts to supplement and complement national statutes on this
subject.54 Likewise, in a 2013 case, G Sundarrajan v Union of India,55 a case involving liability
for nuclear safety, the SCI, once again, resorted to those treaties that India has not signed. The
SCI referred to treaties like the Nuclear Non-Proliferation Treaty (NPT) and the Vienna
Convention on Civil Liability for Nuclear Damage, though India is not a party to these
conventions.
However, there have been a few instances where the courts have not incorporated treaties that
India has not signed thus reflecting a discrepancy in this trend. In Dhanwanti Joshi vs Madhav
Unde,56 a 1998 case involving international parental child abduction (a mother removed her
minor child from his habitual residence in the United States and brought him to India), the issue
was about the applicability of the Hague Convention on the Civil Aspects of International Child
Abduction (Hague Convention). The Hague Convention is a multilateral treaty that shields
children from the damaging effects of illegal removal and retention across international
49
ibid
50
ibid
51
Liverpool & London S.P. & I Asson. ... vs M.V. Sea Success I & Anr Appeal (Civil) 5665 of 2002
52
ibid
53
ibid
54
Ibid. See also MV Al Quamar v Tsavliris Salvage (International) Ltd (2000) 8 SCC 278
55
G.Sundarrajan vs Union Of India & Ors (2013) Civil Appeal No. 4440 of 2013.
56
Dhanwanti Joshi vs Madhav Unde (1998) 1 SCC 12
18

boundaries.57 The treaty provides a mechanism to bring about the prompt return of such
children. Article 16 of the Hague Convention proscribes the judicial or administrative
authorities of Contracting States that receive notice of wrongful removal or retention of a child
to decide on the merits of custody.58 India is not a signatory to this treaty. Accordingly, the SCI
said in the Dhanwanti Joshi case that Indian courts are not bound by this treaty and are free to
consider the question of removal of a child's custody on merits bearing in mind the welfare of
the child. What is important to note is that India had no domestic legislation on this issue in
1998. Yet, the court refused to incorporate the Hague Convention into the domestic legal
regime.
From 1998 till now, the situation hasn’t changed. India still does not have a comprehensive law
addressing the issue of international parental child abduction.59 Still, the SCI has refused to
incorporate the Hague Convention citing the treaty’s non-applicability to India. The ratio and
the reasoning in the Dhanwanti Joshi case were upheld by the SCI in Nithya Anand Raghavan
v. State (NCT of Delhi),60 a 2017 case. In a case decided in 2020, Smriti Madan Kansagra v.
Perry Kansagra,61 on international parental child abduction, the SCI, once again, relied on the
fact that India is not a signatory to the Hague Convention and thus concluded that the court had
the right to consider the question of child’s custody on merits bearing the welfare of the child
in mind.
In many ways, the situation on international parental child abduction is the same as the situation
that the SCI confronted in the Vishakha case where the court had to grapple with the issue of
sexual harassment at the workplace in the absence of domestic legislation. As already
mentioned, the court used the opportunity to judicially incorporate international human rights
law to develop a legal mechanism to address the problem of sexual harassment. Yet, the court
in the Nithya Anand case and the subsequent cases on the same matter has eschewed that route.
57
Hague Convention on the Civil Aspects of International Child Abduction, 25 October 1980, Hague XXVIII.
See also HCCH, Child Abduction Section, https://www.hcch.net/en/instruments/conventions/specialised-
sections/child-abduction,
58
Article 16 of the Hague Convention provides: “After receiving notice of a wrongful removal or retention of a
child in the sense of Article 3, the judicial or administrative authorities of the Contracting State to which the child
has been removed or in which it has been retained shall not decide on the merits of rights of custody until it has
been determined that the child is not to be returned under this Convention or unless an application under this
Convention is not lodged within a reasonable time following receipt of the notice”.
59
India currently has a bill on this issue - The Civil Aspects of International Child Abduction Bill, 2016
https://wcd.nic.in/sites/default/files/Draft_Implemnting_Legislation_Hague_Convention_0.pdf
60
Nithya Anand Raghavan vs State of NCT of Delhi (2017) Criminal Appeal No. 972 of 2017.
61
Smriti Madan Kansagra v. Perry Kansagra (2020) SCC Online SC 887.
19

The court's reluctance could be explained because India is not a party to the Hague Convention.
Yet, this reasoning sits uncomfortably with those lines of cases where the SCI has relied upon
treaties not signed by India.
Likewise, in another recent case, Mohamad Salimullah v. Union of India,62 discussed later in
the paper that involved the deportation of the Rohingya Refugees to Myanmar (Imran, 2022)
the court refused to read the principle of non-refoulment given in the Refugee Convention (RC)
as part of the Indian legal framework because India is not a signatory to the RC. The principle
of non-refoulment prohibits a country from returning refugees to countries where they face a
clear threat of persecution on account of race, religion, nationality, and political opinion, among
others (Goodwin-Gill, 2014). Rohingyas have been facing persecution in Myanmar for a very
long time (Becker, 2020).
In sum, overall, there is a trend of the SCI moving away from the principle of dualist
transformation towards monist incorporation as regards international treaties are concerned.
This trend is consistent with the practice of national courts in several countries that rely on
international law to interpret domestic law (Bahdi, 2002) or that follow the presumption of
conformity i.e. domestic law should be interpreted in a manner that is consistent with that
country’s international treaty commitment (Nollkaemper, 2011). We see increasing reliance on
international treaties in the domestic courts of countries like the United Kingdom (Fatima,
2019) and Canada (van Ert, 2016) that are formally recognised as dualist nations.
Yet, this journey in the case of India hasn’t been smooth. The SCI’s decisions on judicially
incorporating international treaties are peppered with verdicts upholding India’s dualist
tradition. The recent Agricas decision is a case in point. Even on the issue of incorporating
treaties not binding on India, there is an inconsistency in the practice of the SCI, which adds to
the confusion. Let us now turn our attention to see how the SCI has dealt with CIL.
D. Dealing with customary international law
62
Mohamad Salimullah v Union of India (2020) Interlocutory Application No. 38048 of 2021
20

There are several instances of the SCI referring to CIL in its decisions (Hegde, 2010: 74-75).
For instance, in Halliburton Offshore Services v. Principal Officer of Mercantile63, the SCI
held that “under customary international law, ships are regarded as part of the territory of the
Flag State-an extension of the country or floating island.”64 Likewise, in Ram Jethmalani v.
Union of India,65 the court held that “while India is not a party to the Vienna Convention [on
Law of Treaties], it contains many principles of customary international law, and the principle
of interpretation, of Article 31 of the Vienna Convention, provides a broad guideline as to what
could be an appropriate manner of interpreting a treaty in the Indian context also.”66
To understand SCI’s handling of CIL, we divide the discussion into two parts. First, we discuss
those cases where the SCI has endorsed the doctrine of incorporation in the case of CIL. Next,
the paper discusses a recent case where the SCI did not follow the doctrine of incorporation in
a recent case.
D.1 Endorsing doctrine of incorporation
The SCI has followed the doctrine of incorporation in the case of CIL. The SCI in PUCL v
India67 said that “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 be
incorporated in the domestic law”. Thus, those customary norms that are not inconsistent with
Indian law shall automatically become part of the Indian legal regime.
The same principle was also laid down in Vellore Citizens Welfare Forum v. Union of India.68
To support its assertion, the court, in the Vellore Citizens Forum case, cited Justice H.R.
Khanna's opinion in ADM Jabalpur v Shivakant Shukla,69 Jolly George Verghese and
Gramophone Company cases discussed before. It is perplexing how the SCI could rely on these
cases to support the assertion that CIL is directly incorporated into the legal regime. None of
these cases dealt with CIL. For instance, the Jolly George Verghese case dealt with
international treaty law in the context of Article 21 of the Indian Constitution which guarantees
63
Halliburton Offshore Services ... vs Principal Officer Of Mercantile (2017) Civil Appeal No. 5428 of 2017.
64
ibid
65
Ram Jethmalani & Ors vs Union Of India & Ors (2011) Writ Petition (Civil) No. 176 of 2009.
66
ibid
67
PUCL v India AIR 1997 SC 568
68
Vellore Citizens Welfare Forum vs Union of India & Ors AIR 1996 SC 2715
69
ADM Jabalpur v Shivakant Shukla AIR 1976 SC 1207.
21

the right to life and personal liberty. Likewise, the Gramophone Company case, as discussed
before, dealt with the issue of transit rights of land-locked countries under multilateral and
bilateral treaties. Perhaps, the SCI relied on the Gramophone Company case to borrow the
doctrine of incorporation. However, the court missed the important distinction between the two
cases. While the Gramophone company case talked about the incorporation of international
treaty law, the Vellore Citizens Welfare Forum case dealt with the incorporation of a customary
norm. This is yet another instance of the SCI’s muddled reasoning ignoring the different formal
sources of law (Mani, 1995: 173).
The reliance on the Jolly George Verghese case to support the position that CIL is directly
incorporated into the Indian legal regime is further mystifying. As already discussed, the court
in the Jolly George Verghese case laid down the dualist doctrine of transformation, which, as
opposed to the doctrine of incorporation, requires treaty law to be transformed or incorporated
through domestic legislation for it to be applicable in the Indian legal regime.
The court in the Vellore Citizens Welfare Forum case held that since ‘sustainable development’
is a part of CIL, it is incorporated into the domestic law. However, as the English courts have
held, a key requirement before incorporating CIL into domestic law is to ascertain whether a
particular provision indeed constitutes a customary norm under international law. 70 The SCI
did not carry out this analysis for 'sustainable development'. The court, in the Vellore Citizen
Welfare Forum case, concluded that 'sustainable development' is part of CIL by referring to
various soft law instruments such as the Rio Declaration, Agenda 21, and the Brundtland report
(Rajamani, 2016: 149-150).
CIL cannot be determined by mentioning soft law instruments. Determination of CIL requires
the double requirement of State practice and opinio juris.71 The requirement of State practice
refers to the actual practice of the States i.e. the ‘material’ or ‘objective’ requirement. (Shaw,
2017: 54-55) The requirement of opinio juris refers to the subjective or the psychological
factor. (Shaw, 2017: 54-55) The opinio juris requirement refers to the belief by the State that
70
See Keyu v Secretary of State for Foreign and Commonwealth Affairs [2015] UKSC 69, para 146; Chung Chi
Cheung v. R. [1939] AC 160, 168; 9 AD, p. 264.
71
ILC Draft Conclusions of customary international law, [2018], Yearbook of the International Law Commission,
vol II, Part II. See also North Sea Continental Shelf, Judgment, I.C.J. Reports 1969, p. 3, at p. 44, para. 77;
Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), Judgment, I.C.J. Reports 2012, p.
99, at pp. 122–123, para. 55.
22

it is behaving in a particular manner because it is under a legal obligation to do so. (Shaw,
2017: 54-55) However, the SCI did not undertake an examination of State practice and opinio
juris to demonstrate that sustainable development is part of CIL. It was incumbent on the court
to make this determination especially given the debate on the customary status of sustainable
development72 (Lowe, 1999; Barral, 2012: 388).
But, the SCI is not alone in failing to undertake a rigorous analysis in this regard to determine
CIL. As a study has found, domestic courts of several countries do not normally identify CIL
norms based on determining State practice and opinio juris (Ryngaert & Siccama, 2018).
Instead, domestic courts often refer to non-binding documents, treaties, or international judicial
practices to determine CIL norms. (Ryngaert & Siccama, 2018:24) However, there are also
instances where domestic courts have undertaken extensive analysis in determining where a
particular provision indeed constitutes customary norms under international law. For example,
the Polish Supreme Court, in a case known as Natoniewski v. Germany73 conducted a thorough
analysis to determine whether there is an exception under customary law to State immunity for
grave violations of human rights (Ryngaert & Siccama, 2018: 22-23).
Incorporating an alleged rule of CIL without establishing that it is a valid international law rule
would mean that those norms that have not attained the status of a customary norm under
international law may nonetheless become part of the domestic legal regime without any
legislative sanction. Subsequent decisions have approvingly cited the Vellore decision to hold
that sustainable development is part of CIL. For instance, the court in Tata Housing
Development Co. Ltd. v. Aalok Jagga,74 while deciding on whether a housing project can come
up in a short distance from a wildlife sanctuary, referred to sustainable development by citing
the Vellore Citizens Welfare forum case.
The court in the Vellore Citizens Welfare Forum case went on to identify the precautionary
principle and the polluter pays principle as part of sustainable development and held that both
the principles are part of the environmental law of India. The court also said that “even
72
Some scholars contest the argument that sustainable development has attained customary status – see Lowe
(1999). On the other hand, some argue that sustainable development, as an objective, constitutes a principle of
customary law – see Barral (2012).
73
Natoniewski v. Germany (2010) Winicjusz N. v. Republika Federalna Niemiec – Federalny Urząd Kanclerski
w Berlinie, case no. CSK 465/09.
74
Tata Housing Development Co. Ltd. v. Aalok Jagga (2020) 15 SCC 784
23

otherwise once these principles are accepted as part of the Customary International Law there
would be no difficultly in accepting them as part of the domestic law”. 75 (Vellore Citizens
Welfare Forum v Union of India, 1996: 10) Two points are pertinent here. First, since the court
used the words “once these principles” are accepted as part of CIL, it stopped short of affirming
these two principles as part of CIL. Thus, it did not categorically state that precautionary and
the polluter pays principles are part of CIL. Second, just like in the context of sustainable
development, it recognized that CIL norms can be incorporated into the domestic legal regime.
However, the subsequent decisions of the SCI have erroneously read the Vellore Citizens
Welfare Forum case as confirming the customary status of precautionary and polluter pays
principles. (Rajamani, 2016:150) For example, the SCI in Research Foundation For Science v.
Union Of India76 said that “it was observed in Vellore Citizens' Welfare Forum's case that these
principles [precautionary principle and polluter pays principle] are accepted as part of the
customary international law and hence there should be no difficulty in accepting them as part
of our domestic law”. Likewise, the court in A.P. Pollution Control v. M. V. Nayudu,77 referring
to the Vellore Citizens Welfare Forum case said that the apex court observed that the polluter
pays and precautionary principles are accepted as part of CIL and hence there should be no
difficulty in accepting them as part of our domestic law. Thus, the court not only reaffirmed
that CIL norms are part of the Indian legal regime, but also upheld that the precautionary
principle is part of CIL. Recently, in Arjun Gopal v. Union of India,78 the court, yet again,
indicated that the precautionary principle is accepted as part of CIL(Arjun Gopal v Union of
India, 2019; Lal Bahadur v State of U.P, 2018) Like in the previous cases, the court did not
study the double requirement of State practice and opinio juris or undertake any extensive
analysis to determine whether the precautionary principle is part of CIL. 79 Over the years, the
SCI’s willingness to so readily accept the precautionary principle as part of CIL flies in the
face of debates under international law where the acceptance of this principle as a customary
norm remains contested (Sourgens, 2020: 1277-1278).
75
Vellore Citizens Welfare Fourm vs Union Of India & Ors, AIR 1996 SC 2715
76
Research Foundation For Science v. Union Of India (2005) 10 SCC 510
77
A.P. Pollution Control Board vs Prof. M.V. Nayudu (Retd.) & Others (1999), 2 SCC 718.
78
Arjun Gopal vs Union of India, (2019) 13 SCC 523. See also Lal Bahadur v. State of U.P, (2018) 15 SCC 407.
79
Compare this with India’s argument before the Kishanganga arbitration where India challenged Pakistan’s
position that the precautionary principle is part of CIL – see Indus Waters Kishenganga Arbitration
(Pakistan/India) (Partial Award) The Permanent Court of Arbitration 18 February 2013, para 227.
24

Some Indian scholars like Chimni, who advocate the third-world approaches to international
law, or TWAIL as it is famously called, critique the tendency of the SCI to so uncritically
incorporate CIL into the domestic legal framework (Chimni, 2019: 572). The TWAIL
argument is that given the eurocentric and imperialistic history of international law, the growth
of CIL, over the years, reflects the interests of the developed countries, not of third world
countries like India (Chimni, 2018). CIL’s growth has been historically influenced by the
western capitalist countries that dominated and controlled the international legal system
(Chimni 2018: 28). Developing countries played a very limited role in the evolution of CIL.
However, the SCI, while dealing with CIL, has remained agnostic about this historical account
of the growth of CIL. One reason for this could be that the judges of SCI are not well versed in
the process of international law-making. Accordingly, TWAIL scholars like Chimni assert
that SCI’s practice reflects a certain “naivety about the international legal process” (Chimni,
2019: 572).
Despite the imperialistic and colonial origin of CIL, the SCI’s dealing with CIL is not very
different from the domestic courts of developed countries that played a major role in shaping
the formation of CIL such as the UK. In the UK, which is considered dualist, the common
view is that as far as CIL is concerned it is part of the domestic law through automatic
incorporation. (Björgvinsson, 2015: 58) For example, in an English case, A (FC) and Others
(FC) v Secretary of State for the Home Department, Lord Bingham observed that a treaty,
despite its ratification by the UK, has no binding force in UK’s domestic legal system unless it
is given effect by a domestic statute or expresses principles of CIL.80 Thus, a distinction was
drawn between international treaties that have to be transformed into domestic law as against
CIL that is automatically incorporated. Likewise, the Canadian Supreme Court in R v. Hape81
held that CIL will be treated as part of Canadian law even when it is not embraced by domestic
legislation.
D.2 Not following the doctrine of incorporation
As against the cases discussed above, that advocate incorporating CIL into domestic law as
long as it is not inconsistent with municipal law, a recent decision of the SCI has moved away
80
A (FC) and Others (FC) v Secretary of State for the Home Department [2004] UKHL 56
81
R. v. Hape 2007 SCC 26
25

from the doctrine of incorporation. In Mohamad Salimullah v. Union of India82 – a case
involving the deportation of Rohingya refugees – the SCI’s troubled relationship with CIL was
at full display. This case arose when a petition was filed before the SCI seeking to stop the
deportation of Rohingya refugees to Myanmar where they face persecution.
The petitioner invoked the principle of non-refoulment in international law. The principle of
non-refoulment is laid down in Article 33(1) of the RC. This principle is also found in the
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
(Torture Convention) and has also been read as part of international human rights law. Notably,
the principle of non-refoulment has been widely recognized as part of CIL (Lauterpacht &
Bethlehem, 2003; Goodwin-Gill & McAdam, 1996; Lambert, 2021). The United Nations High
Commissioner of Refugees (UNHCR) is also of the view that the principle of non-refoulment
has attained the status of CIL.83 Thus, the principle of non-refoulment is universal and binds
even those countries such as India that are not signatories to the RC. Some scholars go to the
extent of arguing that the principle of non-refoulment has attained the status of jus cogens
(Cassese, 2012: 162-163) i.e. it has become a peremptory norm from which no derogation is
possible. Be that as it may, it can be safely said that the principle of non-refoulment, under the
doctrine of incorporation, is part of the Indian legal regime.
However, the SCI, in this case, sidestepped this question (Sanklecha, 2021). It did not answer
whether non-refoulment is part of CIL. The court said that “there is no denial of the fact that
India is not a signatory to the Refugee Convention. Therefore, serious objections are raised,
whether Article 51(c) of the Constitution can be pressed into service, unless India is a party to
or ratified a convention. But there is no doubt that the National Courts can draw inspiration
from International Conventions/Treaties, so long as they are not in conflict with the municipal
law”. The court’s reasoning indicates that since India has not signed the RC, the principle of
non-refoulment is not binding on India. Thus, the court seems to be of the view that non-
refoulment is a treaty principle, not part of CIL, which is patently wrong. Another flaw in the
court’s reasoning is that it seems to indicate that Article 51(c) of the Indian Constitution is only
about international treaties. Whereas, as discussed before, Article 51(c) is about fostering
respect for international law, which includes not just treaty norms but also CIL and general
82
Mohamad Salimullah v Union of India, Interlocutory Application No. 38048 of 2021.
83
Advisory Opinion on the Extraterritorial Application of Non-Refoulement Obligations under the 1951
Convention relating to the Status of Refugees and its 1967 Protocol - https://www.unhcr.org/4d9486929.pdf
26

principles of law. The court’s reasoning also appears to be at odds with those cases which
incorporated even those principles given in treaties that India has not signed. It would have
been better if the SCI had clarified whether only those treaties that India has signed can be
incorporated into the domestic legal regime.
It is not clear why the court eschewed discussing previous cases where the SCI has incorporated
CIL into domestic law. Since the court, curiously, did not deal with the question of whether
non-refoulment is part of CIL, the issue of incorporation did not arise. If the court was not
willing to incorporate the principle of non-refoulment in the Indian legal system, then it should
have carried out its analysis in either of the two ways. The first option was that it could have
endeavoured to prove that non-refoulment is not part of CIL and thus, even if one follows the
doctrine of incorporation, this principle cannot become a part of the Indian legal regime. The
second option was that the court could have moved away from the doctrine of incorporation
and resurrected the doctrine of transformation. In other words, the court could have reasoned
that presuming non-refoulment is part of CIL, since India has not enacted domestic legislation
giving effect to this principle, the court cannot read the non-refoulment principle as part of the
Indian legal regime. It is debatable whether this line of reasoning would be correct since we
see courts in common law jurisdictions dealing with treaty norms and CIL differently. But the
court’s squishy analysis left many of these imperative questions unanswered.
The Supreme Court’s verdict, in this case, is deeply troubling because it allows for the
deportation of Rohingyas to Myanmar where they face persecution. The verdict fulfills the
wish of the Indian executive to deport Rohingyas to Myanmar because of their alleged security
threat (Hindu: 2022). The Rohingya decision is part of many troubling decisions given by the
Indian Supreme Court in the recent past that have been very deferential to the executive. This
has led many to question the independence of the Indian judiciary (Khaitan: 2020). Some
constitutional law scholars argue that the SCI has become an executive court i.e. its moral and
political compass is aligned with that of the government and that it has no compunctions to
navigate according to the said compass (Bhatia: 2021). When viewed through this prism, one
might be able to understand the SCI’s decision in the Rohingya case.
27

Just a few days later, the Manipur High Court in Nandita Haksar v. State of Manipur84, reached
a different conclusion on the same question of non-refoulment. The Manipur High court said
that “‘non-refoulment is a principle of international law that provides a refugee or asylum
seeker with the right to freedom from expulsion from a territory in which he or she seeks refuge
or from forcible return to a country or a territory where he or she faces a threat to life or freedom
because of race, religion, nationality, membership in a social group, or political opinion”.85
Although the court did not mention that non-refoulment is a principle of CIL, the fact that it
mentioned it as a principle of international law is noteworthy. The court then went on to hold
that the principle of non-refoulment is to be read as part of Article 21 of the Constitution even
if India is not a party to the RC. The Manipur High Court relied on Article 51 of the Indian
Constitution and said that it “casts a non-enforceable duty upon the 'State' to promote
international peace and security, apart from fostering respect for international law and treaty-
obligations in the dealings of organized peoples with one another". While the court did not
categorically mention the doctrine of incorporation, its approach had a similar effect of
incorporating a principle of CIL into the domestic legal regime. Doctrinally, it would have been
better if the court had discussed how non-refoulment is a principle of CIL and then incorporated
it into the Indian legal system.
E. Conclusion
Based on the discussion in this paper, the following conclusions can be arrived at on the SCI’s
dealing with international law. First, while the normative framework given in the Indian
Constitution on the relationship between international law and domestic law is that of dualism
or doctrine of transformation, the SCI, broadly speaking, has departed from the principle of
dualism. The SCI over the years has moved towards the tradition of monist incorporation where
international law (both treaty law and CIL) is considered part of the domestic law, without a
legislative sanction, provided it does not contradict domestic law. This trend is clearly
discernible in the case of international law norms pertaining to human rights and the
environment, though the same cannot be said about international economic law norms. In case
of a conflict, it is the domestic law that would prevail though the court would do its best to
harmonise the international legal norm with the domestic norm.
84
Nandita Haksar v State of Manipur W.P.(Crl.) No. 6 of 2021
85
ibid
28

This overall approach of SCI to deal with international law is consistent with the practice of
domestic courts in several common law jurisdictions such as the UK and Canada. Moreover,
the SCI, like the domestic courts in several jurisdictions, has blurred the strict monist-dualist
divide. Despite, this judicial incorporation of international law, the SCI has not yet held that
international law can give rise to an independent cause of action (Chandra, 2017: 42). However,
this might change in the future because incorporating international law into the domestic legal
regime would logically trigger an independent cause of action.
Second, notwithstanding this broad movement towards monist incorporation, the SCI’s
jurisprudence is riddled with inconsistencies. As the paper has shown, the SCI in certain cases
involving economic matters (like Union of India vs Agricas) continues to reassert the principle
of dualism which flies in the face of the same SCI in several other cases (like PUCL, Vishakha,
and Puttuswamy) involving human rights norms approving the doctrine of incorporation.
Another inconsistency is seen in the context of incorporating treaties not signed by India. In
some instances, the SCI has incorporated treaties that do not bind India internationally (like M
V Elizabeth and Sundarrajan cases) whereas in some other cases (like Dhanwanti Joshi and
Mohamad Salimullah cases) the SCI has departed from this trend without suitable reasoning.
Likewise, when it comes to CIL, the SCI has followed the doctrine of incorporation but strayed
from this line of reasoning in the recent case of Mohamad Salimullah v. Union of India. There
could be several reasons that may explain these inconsistencies such as the understanding of
international law-making by the SCI judges, the personal inclination of the judges, the manner
in which lawyers arguing before the SCI present these issues to the judges, the relationship
between the judiciary and the executive, etc. Further research of empirical nature would be
useful in exploring these issues.
Third, the SCI, though conflictingly, has also incorporated international treaties that India has
not signed. Incorporating treaties India has not signed creates a bizarre situation. Although
India is not bound by a treaty internationally, such a treaty would be considered part of the
domestic legal system.
Fourth, in the process of incorporating customary norms under international law, a flaw in the
court’s methodology has been the rarity in examining whether indeed something has become
part of CIL before judicially incorporating it within the domestic legal framework. While this
29

may be true for other domestic courts in several jurisdictions, there are also examples of
domestic courts undertaking a rigorous analysis. The SCI needs to follow these examples. The
failure to do so might result in those norms that are not binding under international law
becoming part of the Indian legal regime.
Finally, whether this SCI-led transition from dualist transformation to monist incorporation
good or bad? It depends on what perspective one adopts. International law-making is often
critiqued for the democratic deficit. In India, the executive has the power to ratify international
treaties without much parliamentary scrutiny. Arguably, judicially incorporating international
law without parliamentary scrutiny legitimizes such a democratic deficit. Accordingly, judicial
incorporation of international law is questioned because it amounts to the judiciary riding
roughshod over the parliament.
On the other hand, the bright side of judicial incorporation is the progressive development of
law when the executive and the parliament for ideological or political persuasions fail to enact
laws transforming a liberal international legal norm into domestic law. India’s spectacular
failure to enact a refugee law incorporating the principle of non-refoulment is a classic example
of this. The apex court squandered the terrific opportunity in the Mohamad Salimullah case to
incorporate non-refoulment as part of the Indian legal regime. Therefore, judicial incorporation
of binding international legal norms should be welcomed. However, it is important that India’s
apex court demonstrates greater rigour and performs the task of dealing with international law
consistently and coherently. Given the ever-increasing interest globally in how domestic courts
apply international law, this paper has attempted to take this scholarly endeavour forward by
documenting and analysing India’s apex court’s tryst with international law.
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The Supreme Court of India and International Law: A topsy-turvy Journey from

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Notwithstanding the weaknesses of the dualist/monist lens or the emergence of new

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B. International law in the Indian Constitution: the normative framework

Article 51 (c) of the Constitution provides:

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Article 246(1) provides:

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C.1 Early days: the doctrine of transformation

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C.2 Moving away from the doctrine of transformation

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In all these cases, SCI followed a ‘presumption of compatibility’ or ‘presumption of

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C.3 Dualism keeps rebounding

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C.4 Incorporating treaties to which India is not a party

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D. Dealing with customary international law

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D.1 Endorsing doctrine of incorporation

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D.2 Not following the doctrine of incorporation

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Khaitan, Tarunabh. (2020). Killing a Constitution with a Thousand Cuts: Executive

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