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Legal System in India - International norms influencing National legal system

Written by: Sangeeta Chakravarty - A student at National Law Institute University, Bhopal
Constitutional Lawyers in India
Legal Service
  • International norms influencing national legal system

    The Universal Declaration of Human Rights which was adopted by the UN General Assembly on 10 Dec, 1948, has been proclaimed as a common standard of achievement for all peoples and all nations. It incorporates not only the traditional civil liberties but also Social, Economic and Cultural Rights. The characteristic feature of the developments of International human rights law is the fact that the relationship between the States and their own citizens, are regulated through the international human rights convention. No doubt it is a desirable development, but it is equally true that these rights are guaranteed to the individuals only through the intervention of States.

    Thus, the position is that these conventions on being accepted by the States become legally binding upon them, but they do not enable the individuals to present claims against their own states for the vindication of their rights or for that matter to claim compensation. Thus , it has been suggested that such local regional and central agencies of international character should be established which may, functioning judicially, assist the victims to get relief against their own States through amicable settlement.

    The question that how far, the rights contained in the Universal Declaration of Human Rights, the two international covenants and other conventions have been translated into real rights of the individuals can be answered only after examining the municipal legal system. In India, in Particular, the civil rights and liberties are guaranteed by the Part-III of the Constitution of India, and are to that extent enforceable by the Supreme Court of India. Part-IV of the Constitution of India establishes a Charter of Economic, Social and Cultural Rights. Although these rights are not enforceable by any court, but the principles there in laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws.

    This article analyses how far the International legal norms on Human Rights have been able to influence the Indian Legal System. What is the Indian Law on the Human Rights? This article also analyses how the Indian Judiciary has enforced International Human Rights Laws?

    Human Rights

    No single phrase in recent human history has been more privileged to bear the mission and burden of human destiny than the phrase Human Rights. The reason behind it is that the millions of men, women, youth and children around the world will be born, live and die and never know they are owners of human rights says Ivanka Corti, former chairperson ,CEDAW.

    Human Rights means the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International covenants and enforceable by courts in India.[1]

    International Legal Norms

    In Chairman, Railway Board v. Chandrima Das[2],emphasizing upon the applicability of the Universal Declaration of Human Rights and principles thereof in the domestic jurisprudence, it was held by the Supreme Court that our Constitution guarantees all the basic and fundamental human rights set out in the UDHR,1948, to its citizens and other persons. The chapter dealing with Fundamental Rights is contained in Part-III of the Constitution. The purpose of this part is to safeguard the basic human rights from the vicissitudes of political controversy and to place them beyond the reach of the political parties who , by virtue of their majority, may come to form the Government at the Centre or in the State.Further emphasizing the importance of the UDHR, the court has observed that the Human Rights Jurisprudence is based on the Universal Declaration of Human Rights,1948, which has the international recognition as the 'Moral Code of Conduct' having been adopted by the General Assembly of the United Nations.

    Kelsen in his 'Pure Theory' of law discussed about Grundnorm. According to him Grundnorm is the highest standard of norm which ought to be obeyed by the society. He segregated the grundnorm from affectivity. He said that there exists a hierarchy of norms and in that hierarchy grundnorm is at the top.Kelsen also applied his theory to the system commonly known as 'international law'. His earliest work did not touch on this field, and it was only after Verdross, one of his disciples had started to adapt his approach to international law, that Kelsen himself took an interest in it. When applied in this field his theory does reveal some limitations. The Pure Theory demands that a Grundnorm be discovered. If there are conflicting possibilities ,then as Kelsen himself admitted, his theory provides no guidance in choosing between them. All he said was that the grundnorm should command a minimum of support. In the international sphere there are two possible grund norms, the supremacy of each municipal system or the supremacy of international law. Kelsen argues that; every national legal order cannot ex hypothesis recognize any norm superior to its own Grundnorm. The English legal order does not apply in France nor vice versa. Nevertheless the English legal order recognizes the validity of the French legal order in France ; and if the only grundmorm known to English Law is its own .Such is the out come of the doctrine of national sovereignty and it tends to a state of anarchy in which each national order recognizes only its own Grundnorm and endure other legal orders as subsidiary to it.

    Kelsen would have non of this .He argued instead for a monist view of the relationship between international and municipal law, and declared that the Grundnorm of international system postulates the primacy of international law. Nations in practice he argued , recognize the equality of each others legal orders, and the doctrine of equality must mean that they recognize the existence of a grundnorm superior to the grundnormen of their own particular legal orders.

    All this is questionable. The first thing his theory requires, is the Grundnorm of the international order. This is by no means clear: it may be the principle pacta sund servanda or 'coercion of state against state ought to be exercised under the conditions and in the manner that confirms with the custom constituted by the actual behaviour of the States.

    So in context of Human Rights, Universal Declaration of Human Rights (UDHR) can be presupposed as a grundnorm from which all other norms on Human Rights derive their validity. Like ICCPR, ICESCR, CEDAW etc. have been derived from UDHR.

    International Bill of Human Rights. The Bill comprises three texts:

    the Universal Declaration of Human Rights (1948),
    the International Covenant on Economic, Social and Cultural Rights (1966), and
    the International Covenant on Civil and Political Rights (1966)

    Domestic Legal System

    The National Human Rights Commission (NHRC), which was established by the Protection of Human Rights Act, 1993 is the main body entrusted with promoting and protecting human rights. The Act also provides for the establishment of State Human Rights Commissions ("SHRC") and Human Rights Courts ("HRC") at the district level in each state. The Human Rights Act vests the NHRC with a broad mandate but it only has the power to issue recommendations and does not have any effective enforcement mechanism at its disposal. The scope of the NHRC's work and the zeal of victims of human rights violations to seek the Commission's attention is manifested by the fact that starting with 496 complaints in the first six months after it was established, the NHRC registered 50,634 complaints during 1999-2000.

    Incorporation and Status of International Law in Domestic Law India has ratified the following relevant international human rights and humanitarian law treaties • Geneva Conventions (9 November 1950), Genocide Convention (27 August 1959), CERD (03 December 1968), ICCPR (10 April 1979), CEDAW,ICESCR etc.

    There are no explicit provisions in the Indian Constitution regulating the incorporation and status of international law in the Indian legal system. However, Articles 51 (c) stipulates, as one of the directive principles of state policy, that: The State shall endeavor to foster respect for international law and treaty obligations in the dealings of organized people with another.

    International treaties do not automatically become part of national law. They have to be transformed into domestic law by a legislative act.[3] The Union has the exclusive power to implement international treaties.[4] The status of customary international law in domestic law follows the common law of England.[5] Accordingly, a rule of customary international law is binding in India provided that it is not inconsistent with Indian law.

    Gramophone Co. of India Ltd v Birendra Bahadur Pandey AIR 1984 SC 667, at 671: The comity of Nations require 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. But when they do run into such conflict, the sovereignty and the integrity of the Republic and the supremacy of the constituted legislatures in making the laws may not be subjected to external rules except to the extent legitimately accepted by the constituted legislatures themselves. The doctrine of incorporation recognizes the position that the rules of international law are incorporated into national law and considered to be part of the national law, unless they are in conflict with an Act of Parliament. Comity of nations or no, Municipal Law must prevail in case of conflict.

    While national legislation has to be respected, even if it contravenes rules binding on India under international law, Indian Courts, in particular the Supreme Court, have consistently construed statutes so as to ensure their compatibility with international law.[6]

    The judicial opinion in India as expressed in numerous recent judgments of the Supreme Court of India demonstrates that the rules of international law and municipal law should be construed harmoniously, and only when there is an inevitable conflict between these two laws should municipal law prevail over international law.[7]

    The Supreme Court has even gone a step further by repeatedly holding, when interpreting the fundamental rights provisions of the Constitution, that those provisions of the International Covenant on Civil and Political Rights, which elucidate and effectuate the fundamental rights guaranteed by the Constitution can be relied upon by courts as facets of those fundamental rights and are, therefore, enforceable.[8]

    Bangalore Principles
    The Bangalore Principles were released as a summary of issues discussed at a Judicial Colloquium on The Domestic Application of International Human Rights Norms, held in Bangalore, India from 24 - 26 February 1988. Reprinted in Commonwealth Secretariat Developing Human Rights Jurisprudence vol 3 151 and in 1 African Journal of International and Comparative Law/RADIC (1989) 345

    Fundamental human rights and freedoms are inherent in all humankind and find expression in constitutions and legal systems throughout the world and in the international human rights instruments.

    These international human rights instruments provide important guidance in cases concerning fundamental human rights and freedoms.

    There is an impressive body of jurisprudence, both international and national, concerning the interpretation of particular human rights and freedoms and their application. This body of jurisprudence is of practical relevance and value to judges and lawyers generally.

    In most countries whose legal systems are based upon the common law, international conventions are not directly enforceable in national courts unless their provisions have been incorporated by legislation into domestic law. However, there is a growing tendency for national courts to have regard to these international norms for the purpose of deciding cases where the domestic law – whether constitutional, statute or common law – is uncertain or incomplete.

    This tendency is entirely welcome because it respects the universality of fundamental human rights and freedoms and the vital role of an independent judiciary in reconciling the competing claims of individuals and groups of persons with the general interests of the community.

    While it is desirable for the norms contained in the international human rights instruments to be still more widely recognised and applied by national courts, this process must take fully into account local laws, traditions, circumstances and needs.

    It is within the proper nature of the judicial process and well-established judicial functions for national courts to have regard to international obligations which a country undertakes – whether or not they have been incorporated into domestic law – for the purpose of removing ambiguity or uncertainty from national constitutions, legislation or common law.

    However, where national law is clear and inconsistent with the international obligation of the state concerned, in common law countries the national court is obliged to give effect to national law. In such cases the court should draw such inconsistency to the attention of the appropriate authorities since the supremacy of national law in no way mitigates a breach of an international legal obligation which is undertaken by a country.

    It is essential to redress a situation where, by reason of traditional legal training which has tended to ignore the international dimension, judges and practicing lawyers are often unaware of the remarkable and comprehensive developments of statements of international human rights norms. For the practical implementation of these views it is desirable to make provision for appropriate courses in universities and colleges, and for lawyers and law enforcement officials; and meetings for exchanges of relevant information and experience.

    These views are expressed in recognition of the fact that judges and lawyers have a special contribution to make in the administration of justice in fostering universal respect for fundamental human rights and freedoms.

    Legal Status of Refugees In India

    In India there is no national legislation concerning refugees, their legal status and rights. They are treated as aliens .The refugees in India are governed under the Registration of foreigners Act,1939, dealing with all the foreigners, the Foreigners Act,1946, empowering the State to regulate the entry, the presence and departure of aliens in India. The Passport Act,1920 and the Passport Act,1967, governin g the entry and departure of persons are also made applicable to refugees. Moreover certain provisions of the Constitution of India, such as Art.14( right to equality), art.21( the right to life and personal liberty) and Art.25( right to freedom to practice and propagate one's own religion) also apply to refugees by virtue of their being applicable to citizens and non-citizens alike.

    National Human Rights Commission v. State of Arunachal Pradesh [9]
    It was held by the Supreme Court that the State is bound to protect the life and liberty of every human being whether he is a citizen or non-citizen. Thus, the refugees are entitled to the protection of their life and liberty under Article 21 of the Constitution which clearly states that no person shall be deprived of his life or personal liberty except according to the procedure established by law. The protection of life and liberty under Article 21 is guaranteed to citizens as well as to non-citizens.

    Labour Laws
    The history of labour struggle is nothing but a continuous demand for a fair return to labour expressed in varied forms i.e. (a ) Increase in wages, (b) Resistance to decrease in wages, and (c) grant of allowances and benefits etc. If a labourer wants to achieve these gains individually, he fails because of his weaker bargaining power, the management with the better economic background stands in a better position to dictate its terms.

    The rights of the workers to negotiate and collective bargain are won after a struggle for three centuries right from the beginning of the industrial revolution in 1765. ILO (International Labour Organization) guarantees these rights and many other labour rights with the help of international conventions. India is a founding member of the ILO and it is naturally expected that it doesn't violate the international labour standards. Para,3 of Art.8 ICCPR provides that no one shall be required to perform forced or compulsory service.

    ILO has shown its concern in suppression of forced or compulsory labour as adopted Forced Labour Convention 1930 and abolition of forced labour convention 1957.It provides for abolition of certain forms of forced or compulsory labour constituting the violation of the right of the man reffered to in the Charter of UN and enunciated by the UDHR In India , beggar and other similar form of forced labour are prohibited under Art 23 of the Constitution.

    Sanjit Roy v. State of Rajasthan [10]
    It was observed by the Supreme Court that payment of wages which was less than the minimum wages prescribed by the minimum wages Act could not be justified on the ground that these wages were given by the State to help the people affected by famine or drought.

    Bandhua Mukti Morcha v. Union of India[11]
    It was observed by the Supreme Court that bonded labour is included within the expression of forced labour, therefore, it is prohibited under Article 23 of the Constitution .It is the Constitutional obligation of state to examine and identify the practice of bonded labour system and to adopt appropriate measures to eradicate it. The Bonded labour System (Abolition ) Act, 1976 was enacted by the Parliament with view to abolish the system of bonded labour and to save the people of weaker section from being exploited economically and physically.

    Neglect of Rights of Child

    In the evolution of human rights, the child is relatively a late entrant. The Convention on Rights of Child was signed only in 1989. It has been ratified by 192 countries except Somalia and the United States. The late action on child rights is a sad reflection of the uncaring attitude, lay almost total neglection, towards the rights of this weak segment of the society.

    Today, the child is a victim of sexual abuse, torture, war, violence, poverty, bonded labour, deprivation and denial. Health of the child and particularly malnutrition of children belonging to the disadvantaged segments of the society is an area of concern. Child labour in India is a historical fact and the exploitation of children for extracting labour is a grim reality. Almost 150 million children in this country continue to languish in slavery. The weak and the poor of the world, often end up being mere footnotes of history. A child is perhaps the weakest element in the global community dominated by the adult. A comprehensive legislation to address the entire issue of child labour from the perspective of prevention, prohibition, regulation and rehabilitation to achieve the final objective of elimination of child labour is a pressing necessity and a challenge.[12]

    Article 24 of the Constitution prohibits the employment of child below the age of 14 yrs in any factory or mine or any other hazardous employment.Art.39 clauses (e) (f), and Art.45 also make provisions for the protection of children against the exploitation and against the moral and material abandonment.

    Case Laws
    Vishaka v. State of Rajasthan[13]
    It was held that the sexual harassment results in violation of the Fundamental Rights of 'Gender Equality' and the right to life and liberty. It is clear violation of right under Article 14,15 and 21 of the Constitution.

    M.C. Mehta v. Kamal Nath[14]
    It was held by the Supreme Court that disturbance caused to the basic environmental elements, such as air, water, and soil which are essential for life, would be hazardous to life within the meaning of Art.21 of the Constitution and the Court can award damages not only for the restoration of ecological balance, but also for the victims who have suffered due to that disturbance.

    As there were violations of Human Rights of men all over the world like domination and exploitation of Blacks by the Whites in U.S. (Black were treated as slaves and did not have the status of Human Being), discrimination of people of Schedule Caste and Schedule Tribe in India by the people of upper caste, exploitation of women, denial of freedom of speech and expression to women etc., so it was realized at the level of International Community that there should be rights of Universal character the outcome of which was Universal Declaration of Human Rights.

    UDHR does not have any binding force behind it but it is accepted by all nations as a moral code of conduct. Bangalore Principles say that courts should adopt and implement the principles of International Human Rights Law in its decisions and specifically use those principles when there is gap in the domestic law. For example there is no specific legislation in India on Refugees so their rights can be protected by bringing them within the purview of Human Rights. But Bangalore Principles denies the use of such principles when they are inconsistent with the domestic law.

    Thus I have studied the International legal norms and their influence to municipal legal system. I have analysed that Universal Declaration on Human Rights is equivalent to Grund norm as postulated by Kelsen in his Pure Theory. But Kelsen himself has said by applying monistic theory that where international law is in conflict with national legal system the latter shall prevail.

    International legal norms has been accepted by Indian Legal system to provide people better laws on human rights. These norms are reflected in many decision of Indian Courts. There has been enactment of Human Rights Act,1993,Constitution of National /State Human Rights Commissions, Human Rights Courts etc. India has ratified several international treaties on Human Rights. All these development to Indian Legal system are the result of revolution at the international level to enforce these International Legal Norms on Human Rights.

    [1] Section 2 (d),The Protection of Human Rights Act,1993 (Act No.10 of 1994)
    [2] AIR 2000 SC 988
    [3] State of Madras v G.G. Menon AIR 1954 SC 517 and People's Union for Civil Liberties v Union of India (1997) 3 SCC 433- for the proposition that some provisions of international treaties might be self-executing Shah, J., in Maganbhai Ishwarbhai v Union of India, AIR 1969 SC 783, at 807 and comments by Verma, S.K., International Law, in: Verma, S.K. and Kusum (eds.) , Fifty Years of the Supreme Court of India, Its Grasp and Reach, Oxford University Press, Indian Law Institute, 2000, 621-649, at 632.
    [4] Article 253 provides that: "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." Entry 14 of the Union List of the Seventh Schedule empowers Parliament to legislate in relation to entering into treaties and agreement and implementing of treaties and agreement with foreign countries and implementing of treaties, agreements and conventions with foreign countries.
    [5]Article 372 of the Constitution: Notwithstanding the repeal by this Constitution of the enactments referred to in article 395 but subject to the other provisions of this Constitution, all the law in force in the territory of India, immediately before the commencement of this Constitution shall continue in force therein until altered or repealed or amended by a competent legislative or other competent authority.
    [6] S.C. Vosjala & Others v. State of Rajasthan & Others 1997 (6) SCC 241: (it is) now an accepted rule of judicial construction that regard must be had to international conventions and norms of construing domestic law when there is no inconsistency between them and there is a void in domestic law; Apparel Export Promotion vs. A.K. Chopra 1999 (1) SCC 759: In cases involving violation of human rights, the courts must ever remain alive to the international instruments and conventions and apply the same to a given case where there is no inconsistency between the international norms and the domestic law occupying the field.
    [7] Verma, CJ, in Vishaka v State of Rajasthan (1997) 6 SCC 241, at 251
    [8] People's Union of Civil Liberties v Union of India & Anr , supra, affirming jurisprudence of Supreme Court in earlier cases concerning Article 9 (5) ICCPR that provides for a right to compensation for victims of unlawful arrest or detention. Remarkably, the Supreme Court has found Article 9 (5) ICCPR to be enforceable in India even though India has not adopted any legislation to this effect but had even entered a specific reservation to Article 9 (5) ICCPR when ratifying the Convention in 1979, stating that the Indian legal system did not recognise a right to compensation for victims of unlawful arrest or detention. See also the case of Prem Shaker Shukla v Delhi Administration AIR 1980 SC
    [9] (1996) 1 SCC 742
    [10] AIR 1983 SC328
    [11] AIR 1984 SC 802
    [12] There is also Juvenile Justice Act
    [13] AIR 1997 SC 3011
    [14] AIR 2000 SC 1997

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    Legislation & Common Law: Indian Legal System

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