Answer By law4u team
India's position on the applicability of international treaties is shaped by its legal framework, particularly under its Constitution and the doctrine of dualism. Here’s how it works: 1. Dualist Approach to International Treaties: India follows a dualistic approach to the relationship between international law and domestic law. This means that international treaties and conventions do not automatically become part of Indian law upon ratification. They must be explicitly incorporated into Indian domestic law by Parliament before they have legal effect within the country. - Ratification of Treaties: India can ratify an international treaty, but it does not automatically override or change domestic laws unless specific legislation is passed by Parliament to incorporate the treaty's provisions into Indian law. - Example: While India has ratified the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the provisions of CEDAW are not automatically enforceable in Indian courts unless Parliament passes specific laws in line with the treaty’s principles. 2. Role of Parliament in Incorporating Treaties: - Legislation Required: For a treaty to have a binding effect on Indian citizens, it requires legislation by the Indian Parliament. Once passed, it becomes part of Indian law. - Article 253 of the Indian Constitution empowers Parliament to make laws for the implementation of international treaties, even if the subject matter is not otherwise covered under the Constitution. 3. Judicial Interpretation of Treaties: - Indian courts can refer to international treaties when interpreting domestic laws, especially if they do not conflict with Indian statutes or the Constitution. - Indian courts may also interpret domestic laws in light of international obligations, especially if a law is ambiguous or silent on a matter. Example: In Vishaka v. State of Rajasthan (1997), the Supreme Court of India referred to the CEDAW to lay down guidelines for preventing sexual harassment at the workplace, even though CEDAW was not directly incorporated into Indian law. 4. Treaties and Fundamental Rights: International treaties cannot override the Fundamental Rights guaranteed by the Indian Constitution. If a treaty violates these rights, the Indian courts may not enforce it, even if India has ratified it. 5. Exceptions – Customary International Law: While treaties require domestic legislation, customary international law is generally recognized in Indian courts, as long as it does not conflict with Indian laws or the Constitution. Customary international law consists of practices accepted as law by the international community. 6. India’s Reservations to Treaties: India may also take reservations or make declarations when ratifying a treaty, where it chooses to limit or exclude the application of certain provisions of the treaty. For example, India made reservations to certain provisions of the International Covenant on Civil and Political Rights (ICCPR), particularly on issues such as the death penalty and the rights of minors. Conclusion: In summary, while India is a party to many international treaties, these treaties do not automatically become part of domestic law. Parliament needs to pass laws to incorporate treaties, and courts can refer to them for interpretation but cannot enforce them directly unless they are part of domestic law. India also reserves the right to make declarations or reservations when ratifying treaties, especially in matters involving its sovereignty, constitutional principles, or public policy.
