The Supreme Court of India and International Law: A Topsy-Turvy Journey from Dualism to Monism

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 a legislation to implement international law. However, the Supreme Court of India has moved away from this formal dualism to 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.

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, 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, 2012). Thus, under the dualist tradition, the State has the supreme authority within its domestic jurisdiction (Brownlie, 2012). 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 in 2020, while dealing with the relationship between domestic law and international law invoked the theories of monism and dualism. Thus, 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, 2020). 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 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.

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. Four 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.

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.

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:

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.

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 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.

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 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

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 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 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 not 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.

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 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.

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 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 Sect. 3(2) of the FTDR Act.⁴⁰ Interestingly, the power to impose QRs under the FTDR Act is laid down in Section 9 A.⁴¹ The importers of pulses challenged the QR orders issued by the Indian government under Sect. 3(2) of the FTDR Act contending that the power to impose QRs is regulated by Section 9 A of the FTDR Act. Therefore, India can impose QRs only if the conditions given in Section 9 A 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 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 Sect. 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 Sect. 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 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.

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 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 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. 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 (Al 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, 2019) 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.

Dealing with Customary International law

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.

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,⁶⁹Jolly 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 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 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 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 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 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.  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).

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.

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 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 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 SCI’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 SCI 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 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.

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.

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.

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 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.

The author is grateful to the anonymous reviewers for their comments. The author thanks Tanaya Thakur and Utkarsh Rai for their research assistance in writing this paper and gratefully acknowledges the sponsorship of the Federation of Indian Chambers of Commerce and Industry (FICCI) for this research work. The author can be contacted at pranjan1278@gmail.com.