The ties of India’s constitution with international law can be dated back to the pre-independence days even during British rule, India was a separate member of the League of Nations. It was also one of the founding members of the United Nations.
Indian constitution is one of the few constitutional texts in the world which expressly provides for fostering(promote) international relations.
Article 51 mandates the state to endeavor to promote international peace and security, to maintain good relations with other nations, to respect international laws and to settle international disputes by peaceful means.
Article 51 also gives a new vision and such provisions should not only be adopted by all nations in their respective constitutions but every nation must adhere to those provisions, in spirit and action, in dealings with other countries.
From ancient times Indian philosophy and vision was to bring humankind to the path of peace, cooperation, co-existence, non-violence, human dignity and human advancement and believes in universality of mankind as one human family (Vasudhaiva Kutumbakam).
The present international law has no universal sanction and is not enforceable and, therefore, it has proved to be inadequate and it has not been able to solve many problems. The result has been that big and powerful nations, by bombings and imposing sanctions, have only brought misery, hunger, disease and poverty to more people and problems remain unsolved and sometimes aggravated.
Thus, it is obvious that the provisions of Article 51 of the Constitution of India is a unique provision which creates awareness and acts as a beacon(watch tower) for international peace and security. It can serve as a guideline for framing international law based on justice, equality, co-existence and human dignity in this strife-torn(highly unstable) world for the ultimate objective of human advancement.
Therefore, Article 51 Clause(c) of the Constitution of India has been given more importance which enjoins(encourages) the state ‘to foster respect for international law’. It also follows that international or world law has to have universal sanction, be applicable to all countries and peoples of the world and it must be enforceable.
And Clause (d) of this Article provides for ‘settlement of international disputes by arbitration’.
It should be remembered that Article 51 is part of the Directive Principles of State policy which are not enforceable. Nevertheless/in spite of, highest importance is given to the international laws and treaties.
Article 253 of the constitution confers exclusive power on the parliament to enact laws to implement international agreement.
It states that in spite of anything in the foregoing(aforesaid) provisions of this chapter, 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.
In general, we can observe that the international treaties and conventions are being used to support the domestic laws of a country. Usually the treaties are used to fill the discontinuity in the domestic law, to interpret the domestic law in case of any ambiguity in the language, to justify and fortify a decision taken in any case related to domestic law or international law, to implement international conventions.
The decisions of international conferences and treaties reflect the developments and changes at international level.
However, the very frequently coming question in front of Indian courts with regards to implementation of international law treaties is whether such treaties are automatically binding or they require any enabling legislation.
The Supreme Court in the case of West Bengal v. Kesoram Industries (2004) stated that any treaties that has been entered into by India cannot become the law of the land unless the parliament passes a law under article 253 of the constitution of India.
Again in the case of Kesavananda Bharati vs. State of Kerala (1973), honorable chief justice Sikri said that when there is a situation where the language of municipal law is vague or contrary then the court must take the support of the international authority of that particular municipal law. This is because Article 253 of the constitution gives exclusive power to the parliament to make laws for giving effect to any treaty, convention or agreement with any country or any decision made at international conferences.
Article 253 also empowers the parliament to pass laws on matters mentioned in List II i.e State list of the 7th schedule in order to execute international treaties, agreements and conventions.
Based on the above discussions we can conclude that international treaties and its obligations are enforceable by the Courts in India only if such treaties are enabled by legislating an act by the parliament of India.
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