ATIONSHIP BETWEEN INTERNATIONAL LAW AND MUNICIPAL LAw 117

ors
of Indian Courts are entirely closed to the wide absorption of international
dmary law into municipal law. Under the British rule in India, the English Common laW
utrines widely applicablein many fields. The Constitution of India did not alter
that
ition for it provided for the continued operation of the 'law in force' imrnediately
ceding the commencement of the Constitution. Therefore, on the analogy of the
nalish Common law, the municipal courts of India have applied the provisions of the
aties entered into by india if they have been incorporated into municipal law through
lonislation, and the well recognised principles of international customary law have been
applied becausethey are Supposed to form part of the law of the land. It is thus the dualist
view of internationai law which has been commenced by the British and Indian courts, viz.,
that international law can become a part of municipal law only by specific incorporation." 43
Thus, Article 51 of the Constitution of lndia, in so far as it requires the various organs of
State, to foster respect for internationai law and treaties would seem to strengthen rather
weakenthelegacy of the common law principle that international law is a part of the law of
the land. This is so. notwithstanding, the imprecise formulation of Article 51. And
constitutional declarations in India are not mere embellishments on paper. They retlect
49
"Maw in action."
Thus, so far as customary rules of international law are concerned, the position
prevaling immediately preceding the commencement of the Constitution continues even
after the coming into force of the Constitution. In India also customary rules of
international law are part of the municipal law provided that they are not inconsistent with
any legislative enactment or the provisions of the Constitution of India. As regards the
treaty rules also, lndia follows more or less the British dualist view. That is to say,
ordinarily, international law can become part of municipal law of India if it has been
specifically incorporated. In State of Madras v. G.G. Menon,50 the Supreme Court held
"The Indian Extradition Act, 1903, has been adopted but the Fugitive Offenders Act of the
British Parliament has been left severely alone. The provisions of the Act could only be
made applicable to India by incorporating them with the
Indian Parliament and enacting on Indian
appropriate changes into an Act of
Fugitive Offenders Act. In the absence of any
legislation on these lines it seems difficulties to hold that sections of the Fugitive
Offenders Act, have force in India by the reason of the
Constitution.51 In this case, Mr. and Mrs. Menon were Advocates provisions of Article 372 of the
in Singapore (then a
British colony). Mrs. Menon had also served as a member of the
Singapore. They came to India in July, 1952. The Colonial Secretary Legislative Council of
of Singapore
requested the Government of India for their extradition for there were certain
against them according to the law of Singapore. Rejecting the request for their extradition, charges
the Supreme Court held: "The whole basis for the applicability of Part Il of the
Offenders Act has gone ; India is no Fugitive
De made to longer a British possession, no order-in-council can
group it with other British possessions. Those of the countries which still
of form
part British possessions and which along with British India were put into a
egitimately decline to reciprocate with India in the matter of surrender group of
may
ofenders on the ground that notwithstanding Article 372 of our fugitive
Onger a British Constitution, India
possession and, therefore, the Fugitive Offenders Act, 1881, did notwas no
OIndia and they were not bound in the absence of a new apply
aionals who may have committed extraditable offences in the treaty to
surrender2 their
Supreme Court, therefore, concluded, "In these territories of India." The
out sections of the Fugitive Offenders Act and
the circumstances, it is not possible work
to
arisen after the apply them to the situation that has
coming into force of the Constitution of India." 53
48.
S.K. Agarwala, "India's Constitution to the
in Asian
States and the Development of International Lawthe Role of Indian Courts"
9. Development
M.K. Nawaz, "International Law in the
of International Law
(1977), p. 73.
April 25-27 (1963), p. 275. Contemporary Practice in India : Some Perspectives" Proc.
50. A.I.R. 1954 S.C. ASIL.
51. lbid. at 517.
p, 519