INDIA AND INTERNATIONAL LAW

Major Contentions

 India remains formally committed to dualism.

o Since, in practice it exhibits many monist tendencies. This can be observed
after the assumption of international law obligations, they are transported into
domestic law through various channels, not all of which require Parliamentary
approval.
o International law in a away, is both constitutive and reflective of the
relationship not only between states, but also between states, their citizens,
other individuals, and non-state entities. These were earlier, thought to be
purely within the domestic/municipal sphere.
o Concerns facing the entire world, from environmental law, to criminal
enterprise, to peace and security, have their basis in discrete domestic policies,
limited to the regulation of inter-state relationships, was not adequate to cope
with these concerns.
o Monists require legislative approval for the very assumption of international
obligations, but once assumed, these obligations have direct effect.
o Parliament also has competence over participation in international
conferences, associations and other bodies.
 Article 246, read with entries 10–14 of the Union List of the Seventh
Schedule of the Constitution (enumerating powers of the Union),
provides that legislative competence over foreign affairs.
 Article 51 was considered non-obligatory,
 Judicial incorporation
o Indian judiciary also applies non-domesticated international law obligations in
various ways that reflect shades of monism. According to Chandra, it can pose
a lot of difficulties in the future run.
o The judicial dicta thatallowscourts to internalize international law norms
without their prior domestication by the legislature.
 Executive’s take on International Law.
o In practice, the Executive has many opportunities for incorporating
international law into domestic law without express Parliamentary approval.
o It can be observed from the Extradition Act, 1962 and the Income Tax Act,
1961 permit the Executive to modify the application of these Acts to give
effect to extradition treaties and double taxation avoidance agreements.
o The Court’s approach in Gramophone Company fundamentally curtails the
role of the legislature in internalizing international law. Parliament is no
longer required to authorize the internalization and domestic implementation
of international law.
 An express statutory provision to the contrary could override the
international law, international law was pegged below statutes in the
hierarchy of norms.