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Indian Courts and International Law

Published online by Cambridge University Press:  02 February 2010

V. G. HEGDE
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Abstract

The approach of Indian courts towards international law has been consistently evolving. Initially, the Indian constitutional framework provided a flexible basis for the application and use of international law, the reasons for which could be seen in the socio-political context of India as a developing country. India, for its part, continued to argue that it remained essentially at the periphery of the mainstream international law, as it had no role in formulating some of the basic principles of international law. For the Indian courts the first substantive encounter with international law emerges in the context of several territorial-related issues. The socio-political context forms the next phase, for the Indian courts to have recourse to diverse international legal norms relating to the environment and human rights and applying them as a persuasive tool. Later, the development context brings a complex array of commercial, environmental, and other related international legal norms into the Indian legal system. For Indian courts, in the present context, the correct sourcing and identification of international legal norms and their application remain a huge challenge. The majority of the legal systems of developing countries for varied historical reasons continue to treat international law as an exotic legal tool to be used sparingly, perhaps only to broaden the interpretation of or sustain a comparable domestic legal norm.

Keywords

Indian courtsforeign lawinternational lawlegal structuresrelationship
Type
ARTICLES
Information
Leiden Journal of International Law , Volume 23 , Issue 1 , March 2010 , pp. 53 - 77
Copyright
Copyright © Foundation of the Leiden Journal of International Law 2010

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References

1 These normative developments have been termed ‘legal pluralism’. In another sense the term used is ‘fragmentation’. It has been pointed out that ‘fragmentation is in this regard a “natural” development (indeed, international law was always relatively “fragmented” due to the diversity of national legal systems that participated in it)’. M. Koskenniemi, Fragmentation of International Law: Difficulties arising from the Diversification and Expansion of International Law – Report of the Study Group of the International Law Commission, UN Doc. A/CN.4/L.682, 4 April 2006, at 12.

2 The origin and establishment of the state in ancient India has been well documented. For example, Sukra salutes the Tree of State with six principles of statecraft (sandhi – agreement, vigraha – hostilities, yana – marching or mobilization, asana – readiness to attack, dvaidhibhava – division of troops or double-dealing, and asraya – subordinate alliance) as its protecting branches, its four beautiful flowers (sama – conciliation, dana – concession, danda – force, and bheda – dissension), and its three fruits (dharma, artha, and kama – religious, social, and economic welfare). See N. Singh, India and International Law (1969); N. Singh, ‘The Concept of Legal Regimes: Its Origin, Development and Attendant Factors’, in M. K. Nawaz (ed.), Essays on International Law in Honour of Krishna Rao (1970), 20; C. H. Alexandrowicz, ‘Kautilyan Principles and the Law of Nations’, (1965–6) 41 British Year Book of International Law 301; C. H. Alexandrowicz, An Introduction to the History of the Law of Nations in the East Indies (16th, 17th and 18th Centuries) (1967); R. P. Anand, New States and International Law (1972); M. Sornarajah, ‘The Asian Perspective to International Law in the Age of Globalization’, (2001) 5 Singapore Journal of International and Comparative Law 284; P. C. Jessup, ‘Diversity and Uniformity in the Law of Nations’, (1964) 58 AJIL 351; the Indian Journal of International Law has published several articles on this issue since its inception in 1960. Some of them could be noted here: C. J. Chacko, ‘International Law in India: Ancient India’, (1960) 1 Indian Journal of International Law 184 (published in two parts); N. Singh, ‘International Law in India: Mediaeval India’, (1962) 2 Indian Journal of International Law 65 (published in three parts).

3 R. P. Anand, ‘Sovereignty of States in International Law’, in Anand, Confrontation or Cooperation: International Law and the Developing Countries (1987); S. D. Krasner, Sovereignty: Organized Hypocrisy (1999); Brand, R. A., ‘Sovereignty: The State, the Individual, and the International Legal System in the Twenty-First Century’, (2002) 25 Hastings International and Comparative Law Review 279Google Scholar; Nagan, W. P., FRSA, and C. Hammer, ‘The Changing Character of Sovereignty in International Law and International Relations’, (2004) 43 Columbia Journal of Transnational Law 14Google Scholar.

4 R. P. Anand, ‘Role of the “New” Asian–African States in the Present International Legal Order’, (1962) 56 AJIL 395; Anand, supra note 2; see also B. S. Chimni, International Law and World Order (1993); Baxi, U., ‘The New International Economic Order, Basic Needs and Rights: Notes towards Development of the Right to Development’, (1983) 23 Indian Journal of International Law 225Google Scholar.

5 Anand, R. P., ‘Attitude of the Asian–African States toward Certain Problems of International Law’, (1966) 15 International and Comparative Law Quarterly 56CrossRefGoogle Scholar; Mushkat, M., ‘The African Approach to Some Basic Problems of Modern International Law’, (1967) 7 Indian Journal of International Law 335Google Scholar; Khan, R., ‘International Law: Old and New’, (1975) 15 Indian Journal of International Law 371Google Scholar.

6 Lord Brougham in Mayor of Lyons v. East India Company in M. P. Singh (ed.), V. N. Shukla's Constitution of India (1992), 1; Alexandrowicz, C. H., ‘Mogul Sovereignty and the Law of Nations’, (1955) 4 Indian Year Book of International Affairs 317Google Scholar; Alexandrowicz, C. H., ‘The Discriminating Clause in South-East Asian Treaties in Seventeenth and Eighteenth Centuries’, (1957) 6 Indian Year Book of International Affairs 126Google Scholar; C. H. Alexandrowicz, ‘Treaty and Diplomatic Relations between European and South Asian Powers in the Seventeenth and Eighteenth Centuries’, (1960) 100 RCADI 207.

7 The ancient Indian way of dispute settlement is through negotiation and conciliation. The institutional structure for dispute settlement at the village level comprised a cross-section of the people (like juries). The common Indian word used for this purpose is panchayat. The Indian Constitution was amended in 1992 (73rd Amendment) to provide formal authority to panchayats to deal with local-level developments, including settlement of local disputes. Accordingly, panchayats possess quasi-judicial powers in this regard. The lok adalat (people's court) is another informal way of settling disputes by means of negotiation and conciliation. India has a separate ministry that looks after panchayat affairs; see www.panchayat.gov.in.

8 Singh, supra note 6, at 4; the Regulating Act, 1773, was the first parliamentary act that was passed after the East India Company had acquired de facto sovereignty over vast territories in the north-east of India. This enactment primarily aimed at better management of the affairs of the East India Company.

9 The Federal Court, established pursuant to Government of India Act, 1935, consisted of a chief justice and not more than six other judges. This format continued even after India became independent. The first sitting of the Indian Supreme Court in the independent India had six Indian judges. For a history of the Supreme Court see www.supremecourtofindia.nic.in.

10 There are, however, some changes. The Government of India Act, 1935, had provided for appealing to the Privy Council from the original jurisdiction of the Federal Court in constitutional maters. Although this appealing provision no longer exists, the binding or persuasive nature of the Privy Council decisions within the Indian court system is a matter that needs careful consideration. In the absence of any authoritative interpretation the Indian courts feel comfortable in taking recourse to English cases.

11 Slaughter, A.-M. and Burke-White, W., ‘The Future of International Law is Domestic (or the European Way of Law)’, (2006) 47 Harvard International Law Journal 327Google Scholar; Tyagi, Y. K., ‘The Conflict of Law and Policy on Reservation to Human Rights Treaties’, (2000) 71 British Yearbook of International Law 181CrossRefGoogle Scholar.

12 S. J. Sorabjee, ‘Equality in the US and India’, in L. Henkin and A. J. Rosenthal (eds.), Constitutionalism and Rights: The Influence of the US Constitution Abroad (1994); P. Chandrasekhara Rao, The Indian Constitution and International Law (1993); Agrwala, S. K., ‘Law of Nations as Interpreted and Applied by Indian Courts and Legislature’, (1962) 2 Indian Journal of International Law 431Google Scholar.

13 Some examples of these procedural requirements invoked by the lower judiciary – i.e., district courts and below – could be broadly identified. These are (a) ensuring the observance of human rights in custody; (b) enforcement of foreign judgments; (c) Internet crimes; (d) extradition matters; (e) service of summons in foreign jurisdictions; (f) implementation of arbitral awards; (g) matrimonial cases and issues concerning maintenance; (h) bail applications of foreign nationals, particularly with regard to sureties and related issues; (i) enforcement of intellectual property rights; (j) recognition and dissolution of marriages solemnized in India and outside India; (k) breach of contract suits, specially in cases where this suit has been dismissed in other (foreign) jurisdictions; (l) dealing with restitution decrees granted in another country; (m) issues concerning inter-country adoptions; (n) breach of contract by multinational companies; (o) child custody and alimony matters; (p) environmental issues and granting of injunctions and so on in a suit.

14 U. Baxi, ‘Taking Human Suffering Seriously: Social Action Litigation before the Supreme Court of India’, in N. Tiruchelvan and R. Coomaraswamy (eds.), The Role of the Judiciary in Plural Societies (1987); U. Baxi, Indian Supreme Court and Politics (1980); U. Baxi, From International Law to the Law of Peoples (2006); Bahdi, R., ‘Globalization of Judgment: Transjudicialism and the Five Faces of International Law in Domestic Courts’, (2002) 34 George Washington International Law Review 555Google Scholar; Lacey, W., ‘Judicial Discretion and Human Rights: Expanding the Role of International Law in the Domestic Sphere’, (2004) 5 Melbourne Journal of International Law 108Google Scholar; J. Goldsmith, ‘Should International Human Rights Law Trump US Domestic Law?’, (2000) Chicago Journal of International Law 327; Desai, B., ‘Enforcement of the Right to Environment Protection through Public Interest Litigation in India’, (1993) 33 Indian Journal of International Law 27Google Scholar.

15 Several new pieces of legislation come into effect during this phase on account of India's increasing role in global affairs. For the courts it becomes a necessity to find ways and means to interpret some of this new legislation in the context of India's multilateral obligations within certain global institutions, e.g. the World Trade Organization (WTO). To meet the challenges of its new economic agenda India enacted new legislation such as, for example, the Indian Arbitration and Conciliation Act, 1996 (based on the UN Commission on International Trade Law (UNCITRAL) model); several new intellectual property laws, such as the Geographical Indications of Goods (Registration and Protection) Act, 1999, Protection of Plant Varieties and Farmers’ Rights Act, 2001, Biological Diversity Act, 2002. Some existing laws were amended; for example the Patents Act, 1970, and the Copyright Act, 1957, were amended to give effect to the obligations undertaken under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) concluded under the auspices of the WTO. These examples are representative, as there are many other areas such as, for instance, labour, human rights, and the environment, in which India brought out a plethora of new laws.

16 Fundamental rights include some of the basic rights granted to individuals, such as equality before the law, equal opportunity, freedom of speech and expression, protection of life and liberty, and the right to freedom of religion. The Indian Supreme Court, in one of its earliest cases, stated, ‘The whole object of Part III of the Constitution is to provide protection for the freedom and rights mentioned therein against arbitrary invasion by the State.’ State of West Bengal v. Subodh Gopal Bose, AIR1954 SC 92.

17 Unlike provisions relating to fundamental rights that are enforceable, directive principles are unenforceable. Art. 37 provides that the directive principles (in Part IV of the Indian Constitution) are not enforceable by any court, but the principles laid down are nevertheless fundamental in the governance of the country. This provision also places a duty on the state to apply these principles in making laws.

18 This declaration was adopted by the representatives of the governments, employers and work-people of the American Continent at the Second Conference of American States Members of the International Labour Organization held in Havana on 21 November–2 December 1939. India was a member of the ILO and some of the members of the Constituent Assembly perhaps either attended this meeting or had knowledge of this Declaration; see Chandrasekhara Rao, supra note 12.

19 The Indian delegation, it has been pointed out, played an active role in the drafting of the provisions concerning the United Nations General Assembly. See M. S. Rajan, India and Making of the UN Charter in United Nations and World Politics (1995), 315; R. P. Anand, ‘Jawaharlal Nehru and International Law and Relations’, in Anand, Studies in International Law and History: An Asian Perspective (2004), 16; Sahovic, M., ‘Nehru's Ideas and the Future of International Law’, (1989) 29 Indian Journal of International Law 94Google Scholar.

20 The draft, inter alia, stated, ‘The State shall promote international peace and security by the prescription of open, just and honourable relations between nations, by the firm establishment of the understandings of international law as the actual rule of conduct among governments and by the maintenance of justice and the scrupulous respect for treaty obligations in the dealings of organized people with one another’; see B. Shiva Rao, The Framing of India's Constitution, Select Documents (1967), 14.

21 See R. Khan, Kashmir and the United Nations (1969); Chacko, C. J., ‘The Rann of Kutch and International Law’, (1965) 5 Indian Journal of International Law 147Google Scholar; Rao, P. Chandrasekhar, ‘Indo-Pakistan Agreement on the Rann of Kutch: Form and Content’, (1965) 5 Indian Journal of International Law 176Google Scholar; Singh, H., ‘The Indo-Ceylon Agreement of 1964: The Question of Separate Electoral Registers’, (1965) 5 Indian Journal of International Law 9Google Scholar; Singh, H., ‘The Kachchativu Question’, (1968) 8 Indian Journal of International Law 49Google Scholar; Murti, B. S. N., ‘The Kutch Award: A Preliminary Study’, (1968) 8 Indian Journal of International Law 51Google Scholar; Rao, T. S. Rama, ‘An Appraisal of the Kutch Award’, (1969) 9 Indian Journal of International Law 143Google Scholar; Mani, V. S., ‘The 1971 War on the Indian Sub-continent and International Law’, (1972) 12 Indian Journal of International Law 100Google Scholar.

22 See N. D. Gulati, Indus Water Treaty: An Exercise in International Mediation (1973); see also A. A. Michel, The Indus Rivers: A Study of the Effects of Partition (1967); S. C. McCaffrey, The Law of International Watercourses (2007).

23 Chandrasekhar Rao, supra note 12, at 7.

24 See National Commission to Review the Working of the Constitution, A Consultation Paper on Treaty-Making Power under Our Constitution (2001); see also Schreuer, C. H., ‘The Interpretation of Treaties by Domestic Courts’, (1971) 45 British Year Book of International Law 255Google Scholar.

25 Art. 246 of the Indian Constitution distributes legislative power between the union (i.e. federation) and the states (i.e. federal units). The various matters of legislation have been enumerated in three lists in the seventh schedule to the Constitution. List I is the Union List; central government has the power to legislate on all items listed there. List II is the State List; states have the power to legislate on items listed there. Finally there is List III, which is termed the Concurrent List. Both the centre and the individual state could legislate on all items listed on the Concurrent List.

26 Entry 14 of the Union List enumerates the scope of the executive in treaty-making. This power of the executive extends not only to the ‘entering into treaties and agreements with foreign countries’, but to the ‘implementing of treaties, agreements and conventions with foreign countries’.

27 See S. K. Jha, Final Act of WTO: Abuse of Treaty-Making Power (2006).

28 This doctrine requires that before any rule or principle of international law can have any effect within the domestic jurisdiction, it must be expressly and specifically ‘transformed’ into municipal law by the use of the appropriate constitutional machinery, such as an act of parliament. In Attorney-General for Canada v. Attorney-General for Ontario, the position taken by Lord Atkin is well known. He pointed out that the making of a treaty was an executive act, while the performance of its obligations, if they involved alteration of the existing domestic law, required legislative action. See M. N. Shaw, International Law (1997), 129, 151; see also Opeskin, B. R., ‘Constitutional Modelling: The Domestic Effect of International Law in Commonwealth Countries’, (2001) 27 Commonwealth Law Bulletin 1242CrossRefGoogle Scholar.

29 The ‘incorporation’ doctrine holds that international law is ipso facto part of municipal law, and there is no need to invoke constitutional machinery to recognize it as part of municipal law. It has been argued that the incorporation doctrine is strictly applicable with regard to customary international law. The Indian Supreme Court has come closer in recognizing this doctrine in Vishaka and Others v. State of Rajasthan and Others, AIR 1997 SC 3011. English cases are legion, starting with Buvot v. Barbuit (1734), Triquet v. Bath (1736), R v. Keyn (1876), West Rand Gold Mining Co. v. R (1905), Commercial and Estates Co. of Egypt v. Board of Trade (1925), Chung Chi Cheung v. R (1939), Thai-Europe Tapioca Service Ltd v. Government of Pakistan (1975), Trendtex Trading Corporation v. Central Bank of Nigeria (1977), Maclaine Watson v. Department of Trade and Industry (1988), and Ex Parte Pinochet (No. 1) (2000). See generally for discussions on this case law Shaw, supra note 28.

30 AIR 1984 SC 667.

31 The Supreme Court noted that Lord Denning, ‘who had once accepted the transformation doctrine without question, later veered round to express a preference for the doctrine of incorporation and explained how courts were justified in applying modern rules of international law when old rules of international law changed’. Ibid., at 671.

32 Ibid. (emphasis added). See also Additional District Magistrate, Jabalpur v. Shivakant Shukla (hereinafter ADM, Jabalpur), AIR 1976 SC 1207; Tractoroexport, Moscow v. Tarapore & Company and Another, Manu/SC/003/1969.

33 AIR 1997 SC 3011.

34 Ibid. The Court stated, inter alia, ‘in the absence of enacted law to provide for the effective enforcement of the basic human right of gender equality and guarantee against sexual harassment and abuse, more particularly against sexual harassment at work places, we lay down the guidelines and norms specified hereinafter for due observance . . . until a legislation is enacted for the purpose’.

35 The Supreme Court has stated that in case of such a conflict the domestic law would prevail for all practical purposes. The Court has also said that the effort would be not to read conflict into the interpretations of the domestic law. It would, therefore, look for a harmonious interpretation. The Court, however, looks at treaties differently. It states, ‘If there is any deficiency in the Constitutional system it has to be removed and the State must equip itself with the necessary power’. See Maganbhai Ishwarbhai Patel v. Union of India and another, AIR 1969 SC 783 or (1970) 3 Supreme Court Cases (SCC) 400.

36 ADM, Jabalpur, supra note 32, at 1207.

37 AIR 1996 SC 2715 or (1996) 5 SCC 647.

38 Ibid., at 2719.

39 Shaw, supra note 28, at 133.

40 Consider the statement made in the West Rand Gold Mining Co. Case (1905). It is stated that whatever had received the common consent of the civilized nations must also have received the assent of the United Kingdom and as such would be applied by the municipal tribunals. See Shaw, supra note 28, at 131. It could be argued that even this averment by the English courts poses this issue of ‘civilized nations’. How does one categorize ‘civilized and non-civilized nations’? For an authoritative elucidation of the concept concerning ‘General Principles of Law Recognized by Civilized Nations’ see P. S. Rao, ‘The Indian Position on Some General Principles of International Law’, in B. N. Patel (ed.), India and International Law (2005), 33.

41 AIR 1969 SC 783 or (1970) 3 SCC 400.

42 It has been concluded that treaties relating to the conduct of war, the cession of territory and the imposition of charges on the public purse do not need an intervening act of legislation before they can be made binding upon the citizens of the country. A similar situation exists also with regard to relatively unimportant administrative agreements which do not require ratification as they do not purport to alter municipal law. See Shaw, supra note 28, at 138.

43 Ibid. It has further been noted that internal laws are required when a treaty affects private rights, creates financial obligations for the state, or involves the cession of territory through an agreement or through an order of the arbitral tribunal.

44 [1949] Federal Court Reports (FCR) 309.

45 The Indian Supreme Court was still termed a Federal Court operating under the provisions of the Government of India Act, 1935.

46 AIR 1960 SC 845; see Mani, V. S., ‘The Berubari Cases from the Perspective of International Law: A Critique’, (1971) 11 Indian Journal of International Law 655Google Scholar.

47 Magan bhai, supra note 41, at 796, para. 41.

48 The Indian Supreme Court, referring to one of its earlier cases, Rai Sahib Ram Jawaya Kapur v. The State of Punjab (1955) 1 Supreme Court Reports (SCR) 225, dealt with the width of the executive action in the absence of legislation.

49 This Advisory Opinion by the Indian Supreme Court resulted in the 9th Amendment to the Constitution.

50 AIR 1966 SC 644.

51 Ibid., at 801.

52 AIR 1970 SC 329 or (1969) 3 SCC 419.

53 Ibid. The petitioner, a resident of Goa, chooses to retain his Portuguese nationality after the annexation of Goa by India in 1961. The petitioner had obtained a temporary permit to stay in India till 1964. He did not ask for its extension or renewal. Accordingly, he was convicted and sentenced under the Foreigners Act. The petitioner contended that he was covered under the Geneva Conventions Act, 1960, that gave effect to the 1949 Geneva Conventions within the Indian territory.

54 Ibid., at 333. The Court noted that Geneva Convention Act gave no specific right to anyone to approach the Court. The Act was passed under Art. 253 of the Indian Constitution read with entries 13 and 14 of the Union List in the Seventh Schedule to implement the agreement signed and merely provided for certain matters based on Geneva Conventions.

55 Ibid., at 335.

56 Ibid., at 336. The Court concluded that ‘In the present case the facts are that the military engagement was only a few hours duration and then there was no resistance at all’.

57 So, the Court concluded, ‘The Geneva Conventions ceased to apply after December 20 1961. The Indian Government offered Rev. Fr Monteiro Indian nationality and citizenship which he refused and retained his Portuguese nationality. As a Portuguese national he could only stay in India on taking out a permit. He was, therefore, rightly prosecuted under the law applicable to him. Since no complaint is made about the trial as such, the appeal must fail’. Ibid.

58 Sarbananda Sonowal v. Union of India and Another, AIR 2005 SC 2920.

59 During the 1970s and 1980s the Indian Supreme Court had to hear several cases concerning personal liberty. The Court had held that Art. 21 was the sole repository of the right to life and personal liberty against its illegal deprivation by the executive. There is a host of cases linking Art. 21 (on personal liberty) with other freedoms. Linkages with international legal norms, particularly with human rights treaties, also could be seen in some of the cases. The subject matter dealt by these cases broadly related to (a) rights of prisoners; (b) rights of inmates of protective homes; (c) the right to legal aid; (d) the right to a speedy trial; (e) the right against cruel and unusual punishment; (f) the right of release and rehabilitation of bonded labour; and (g) the right to compensation. See R.C. Cooper v. Union of India, AIR 1970 SC 564 or (1970) 1 SCC 248; Additional District Magistrate, Jabalpur v. Shivakant Shukla, AIR 1976 SC 1207: (1976) 2 SCC 521; Maneka Gandhi v. Union of India, (1978) 1 SCC 248 or AIR 1978 SC 597; Sunil Batra v. Delhi Administration, (1978) 4 SCC 494 or AIR 1978 SC 1675; Jolly George Varghese v. Bank of Cohin (1980) 2 SCC 360 or AIR 1980 SC 470; Bachan Singh v. State of Punjab (1980) 2 SCC 684 or AIR 1980 SC 898; Hussainara Khatoon v. State of Bihar (1980) 1 SCC 98 or AIR 1979 SC 1369; Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161 or AIR 1981 SC 802; Dr. Upendra Baxi v. State of U.P. (1983) 2 SCC 308; Sheela Barse v. Secretary, Children Aid Society (1987) 3 SCC 96 or AIR 1987 SC 656; Upendra Baxi v. State of Uttar Pradesh, (1986) 4 SCC 106 or AIR 1987 SC 191.

60 Some important cases that challenged the emerging developmental paradigm can be listed. In Rural Litigation and Entitlement Kedndra, Dehradun v. State of Uttar Pradesh, AIR 1985 SC 652, mining operations in Doon Valley were challenged; in State of Bihar v. Banshi Ram Modi, AIR 1985 SC 814, the mining lease for extracting mica was questioned; in Sachidanand Pandey v. State of West Bengal, (1987) 2 SCC 295, the issue related to the construction of a luxury hotel at the expense of the zoological garden; in Ambica Quarries Works v. State of Gujarat, AIR 1987 SC 1973, the issue related to the mining lease granted within a forest area; M.C. Mehta v. Union of India, AIR 1988 SC 1037, was about appropriate action against some 75 tanneries located on the banks of the river Ganga near Kanpur; Rural Litigation and Entitlement Kendra v. State of Uttar Pradesh, AIR 1988 SC 2187, considered the issue of authority or power of the executive to decide or make policy decisions concerning the exploitation of natural resources; State of Bihar v. Murad Khan, AIR 1989 SC 1, was about protection under the Wild Life Protection Act; for a detailed account and analysis of some of these cases see R. Khan, ‘Environment v. Development Revisited: Contributions of India's Judiciary to the Conflict Resolution’, in Ko Swan Sik, M. C. W. into and J. J. G. Syatauw (eds.), Asian Year Book of International Law (1992), 11.

61 ADM, Jabalpur, supra note 32.

62 Art. 8 provides that ‘Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted to him by the Constitution or by law.’

63 Art. 9 provides that ‘No one shall be subjected to arbitrary arrest, detention or exile.’

64 ADM, Jabalpur, supra note 32, at 1260; though this was the minority view of Justice H. R. Khanna.

65 AIR 1980 SC 470 or (1982) 2 SCC 360.

66 Ibid., at 471.

67 Ibid., at 471. Art. 11 of the International Covenant on Civil and Political Rights provides, ‘No one shall be imprisoned merely on the ground of inability to fulfil a contractual obligation.’

68 Ibid., at 473. The Supreme Court quoted extensively from an earlier decision of the Kerala High Court, namely Xavier v. Canara Bank Ltd, 1969 Kerala Law Journal 927. This case had examined the question of whether there was any conflict between s. 51 of the Civil Procedure Code and Art. 11 of the ICCPR.

69 Gramophone, supra note 30, at 669. The case considered the issue of the right of passage of Nepalese goods through Indian territory, and the extent of this right. The specific issue related to the definition of ‘import’ in relation to s. 53 of the Indian Copyright Act. The question framed by the Court goes like this: ‘Can an unauthorized recording of a record (which, for short, adopting trade parlance, we call a pirated work), whose importation into India may be prohibited, but whose importation into Nepal is not prohibited, be taken across Indian territory to Nepal?’

70 Ibid., at 672.

71 Ibid., at 680.

72 Suman Sood v. State of Rajasthan, (2007) 5 SCC 634.

73 AIR 2003 SC 1764; India has no exclusive legislation on ‘state immunity’. S. 86 of the Indian Civil Procedure Code provides the basis for the application and interpretation of laws relating to immunities. It provides, inter alia, that ‘No foreign State may be sued in any Court otherwise competent to try the suit except with the consent of the Central Government certified in writing by a Secretary to that Government.’ It is therefore the prerogative of the executive to decide the status of a ‘state’. See B. Sen, A Diplomat's Handbook of International Law and Practice (1965); Sompong Sucharitkul, ‘Jurisdictional Immunities in Contemporary International Law from Asian Perspectives’, (2005) 4 Chinese Journal of International Law 8. Although several immunity-related cases have been brought before the Indian courts, the basic international legal framework that had been laid down by the Supreme Court in Harbhajan Singh Dhalla v. Union of India, AIR 1987 SC 9, continues to be the most authoritative.

74 AIR 1996 SC 2715 or (1996) 5 SCC 647; this case was about the pollution caused by the enormous discharge of untreated effluent by the tanneries and other industries in the state of Tamil Nadu, particularly in Vellore, where nearly 35,000 hectares of agricultural land had become either partially or totally unfit for cultivation; see also T.N. Godavarman Thirumulpad v. Union of India, AIR 2005 SC 4256.

75 AIR 2006 SC 2038 or (2006) 6 SCC 371.

76 MANU/SC/0032/1999; the second case was decided in 2001 ((2001) 2 SCC 62).

77 (2002) 10 SCC 664.

78 MANU/SC/1007/1997.

79 (2006) 3 SCC 549.

80 Ibid. The Supreme Court had held in that the ‘polluter-pays principle’ and the ‘precautionary principle’ were the sound principles.

81 Vellore Citizens, AIR 1996 SC 2720.

82 Ibid.

83 AIR 2004 SC 867; see also K.M. Chinnappa v. Union of India and Others, AIR 2003 SC 724.

84 The petitioners had sought to conducting a three-dimensional (3D) non-linear test to evaluate the earthquake susceptibility of the dam against the maximum credible earthquake. However, the Court refused to go into this question, as the safety aspects were considered by the Supreme Court in an earlier case, in 1992, namely Tehri Bandh Virodhi Sangarsh Samiti v. State of Uttar Pradesh.

85 The Tehri dam, located in the Himalayan region, was constructed at the confluence of the Bhagirathi and Bhailangana rivers in the neighbourhood of the town of Garhwal, in the state of Uttaranchal (now Uttarakhand), resulting in the relocation of entire town.

86 Dharmadhikari J, while dissenting from these conclusions, particularly on the safety aspects of the dam, observed, ‘In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of a series of reversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost effective measures to prevent environment degradation.’

87 AIR 2004 SC 1834; the issue related to the laying of pipelines to transport crude oil from a single buoy mooring in the Gulf across a portion of the Jamnagar Marine National Park and Marine Sanctuary located along the lower lip of the Gulf of Katchch in the state of Gujarat. The Court had to decide the legality, as challenged through several public interest petitions, of laying the pipelines, in accordance with the provisions of the Wildlife Protection Act, 1972, the Forest (Conservation) Act, 1980, and the Environment (Protection) Act, 1986.

88 Ibid. (emphasis added).

89 AIR 1997 SC 3011 or (1997) 6 SCC 241; see also Nilabati Behera v. State of Orissa (Manu/SC/0307/1993); People's Union for Civil Liberties v. Union of India and Another, AIR 1997 SC 1203 or (1997) 3 SCC 433; and Chairman, Railway Board and Others v. Mrs. Chandrima Das and Others, AIR 2000 SC 988 or (2000) SCC 465. All three cases deal with the issue of the payment of compensation in cases of violations of human rights by the state; see also Manohar, S. V., ‘The Indian Judiciary and Women's Rights’, (1996) 36 Indian Journal of International Law 1Google Scholar; Manohar, S. V., ‘Judiciary and Human Rights’, (1996) 36 Indian Journal of International Law 39Google Scholar.

90 Vishaka, AIR 1997 SC 3011, at 3012.

91 Ibid., at 3015.

92 AIR 2004 SC 456.

93 Ibid. ‘Terrorist acts’, the Court noted, were ‘meant to destabilize the nation by challenging its sovereignty and integrity, to raze the constitutional principles that we hold dear, to create a psyche of fear and anarchism among common people, to tear apart secular fabric, to overthrow democratically elected government, to promote prejudice and bigotry, to demoralize the security forces, to thwart the economic progress and development and so on.’ ‘This’, the Court further noted, ‘cannot be equated with usual law and order problems within a State.’ Referring to the character of terrorism as ‘inter-state, inter-national or cross-border’, the Court stated that it was not ‘a regular criminal justice endeavour’. ‘Terrorism’, it noted, ‘is definitely a criminal act, but it is much more than mere criminality.’

94 Ibid. The Court further noted, ‘Terrorism in a single country can readily become a threat to regional peace and security owing to its spillover effects. It is, therefore, difficult in the present context to draw sharp distinctions between domestic and international terrorism. Many happenings in the recent past caused the international community to focus on the issue of terrorism with renewed intensity. The Security Council unanimously passed resolutions 1368 (2001) and 1373 (2001); the General Assembly adopted resolution 56/1 by consensus, and convened a special session. All these resolutions and declarations, inter alia, call upon Member States to take necessary steps to “prevent and suppress the financing of terrorist acts”. India is a party to all these resolutions. Anti-terrorism activities in the global level are mainly carried out through bilateral and multilateral co-operation among nations. It has thus become our international obligation also to pass necessary laws to fight terrorism.’

95 Ibid., at 466; Report of the Policy Working Group on the United Nations and Terrorism, UN Doc. A/57/273-S/2002/875, 6 August 2002.

96 Ibid., at 466.

97 Ibid. The Court also had to deal with the legality and constitutional validity of the POTA provisions relating to the forfeiture of property of any person prosecuted and ultimately convicted.

98 AIR 2004 SC 3317. Twenty persons faced trial for alleged commission of various offences punishable under the Indian Penal Code, Terrorist and Disruptive Activities (Prevention) (TADA) Act, 1987, and the Arms Act. One of the main contentions of the appellants was that there was no evidence to show that the accused persons were terrorists or extremists or that the activities or actions alleged were encompassed by the provisions of the TADA Act to be described as terrorist acts.

99 Ibid. The Court noted attempts to define terrorism at the global level, such as under the League of Nations; that the UN member states have still not agreed on a definition, apparently on account of what at times has been revealed to be state-sponsored terrorism, both at national and international levels; that there are issues concerning terminology consensus; that there is no single comprehensive convention on terrorism which some countries favour in place of the present 12 piecemeal conventions and protocols; that the lack of agreement on a definition of terrorism has been a major obstacle to meaningful international countermeasures.

100 AIR 2005 SC 2920; the writ petition filed before the Supreme Court by way of public interest litigation was for declaring certain provisions of the Illegal Migrants (Determination by Tribunals) Act (Act No. 39 of 1983), 1983 (hereinafter IMDT Act) as ultra vires the Constitution of India, null and void, and the consequent declaration that the Foreigners Act, 1946, and the Rules made thereunder should apply to the state of Assam. See also Sarbananda Sonowal v. Union of India (II), (2007) 1 SCC 174; this case dealt with the validity of two pieces of internal, subordinate legislation amending Foreigners (Tribunals) Order, 1964, and the other, the Foreigners (Tribunals for Assam) Order, 2006. These amendments were incorporated by the government to give effect to the earlier 2005 decision of the Supreme Court in Sarbananda Sonowal v. Union of India.

101 supra note 98. The Court also referred to the Statement of India's Representative to the Sixth Committee on the definition of Aggression, which emphasized the need for a comprehensive definition. This statement, the Court noted, also referred to the ‘unique type of bloodless aggression from a vast and incessant flow of millions of human beings forced to flee into another State’, thereby impairing the economic and political well-being of the receiving victim state, threatening its very existence.

102 Ibid. The Court further noted, ‘The power to refuse admission is regarded as an incident of the State's territorial sovereignty. International Law does not prohibit the expulsion en masse of aliens. Reference has also been made to Article 13 of the International Covenant of 1966 on Civil and Political Rights which provides that an alien lawfully in the territory of a state party to the Covenant may be expelled only pursuant to a decision reached by law, and except where compelling reasons of national security otherwise require, is to be allowed to submit the reasons against his expulsion and to have his case reviewed by and to be represented for the purpose before the competent authority. It is important to note that this Covenant of 1966 would apply provided an alien is lawfully in India, namely with valid passport, visa etc. and not to those who have entered illegally or unlawfully.’

103 AIR 2004 SC 1107; see Commissioner of Income Tax v. P.V.A.L. Kulandagan Chettiar, AIR 2004 SC 3411.

104 S. 90 of the Indian Income Tax Act dealt with the relationship between DTACs and the Income Tax Act. In other words, it inter alia covered the agreements concluded by the government of India with the government of any country outside India (a) for the granting of relief in respect of income tax payable in the other country; (b) for the avoidance of double taxation of income; (c) for exchange of information for prevention of evasion or avoidance of income tax; (d) for the recovery of income tax as per the laws of either country; and to make necessary provisions as may be necessary for implementing the agreement. The other important feature of s. 90 was that DATC provisions prevailed over the provisions of the Income Tax Act for granting relief of tax or, as the case may be, avoidance of double taxation to the extent they were more beneficial to the assessee.

105 According to Art. 4 of the DTAC, ‘resident’ of one state should be any person who, under the laws of that state, was liable to taxation therein by reason of his domicile, residence, place of management, or any other criterion of similar nature.

106 Ibid. The Delhi High Court had concurred with the arguments of the petitioners and accordingly had quashed the circulars. Briefly, the findings of the High Court specifically concerning international law were that ‘treaty-shopping’, by which the resident of a third country took advantage of the provisions of the agreement, was illegal and thus necessarily forbidden; and avoidance of double taxation had been a term of art and meant accordingly that a person had to pay tax at least in one country; avoidance of double taxation would not mean that a person did not have to pay tax in any country whatsoever.

107 Union of India v. Azadi Bachao Andolan, AIR 2004 SC 1107, at 1119.

108 Ibid., at 1119. See in this connection Maganbhai Ishwarbhai Patel and Others v. Union of India and Another, (1970) 3 SCC 400 (as cited by the Court).

109 Ibid., at 1120.

110 While on this issue the Court considered in detail the whole issue of delegated power of legislation and why a delegatee of legislative power in all cases should have no power to grant exemption. The Court also dealt with the issue of enabling powers of the tax authorities to issue notifications, circulars, etc. under s. 119.

111 (2007) 3 SCC 481.

112 Ibid. The appellant was executing a turnkey project in India, involving a consortium of companies, with the intention of setting up a liquefied natural gas receiving, storage, and degasification facility.

113 Ibid., at 511.

114 Ibid., at 514.

115 Ibid., at 515.

116 (2007) 7 SCC 1. Morgan Stanley, a US company, was operating within India through an independent subsidiary established in accordance with Indian laws. The issue concerned determining and attributing ‘permanent establishment’ (PE) with respect to Morgan Stanley, for the purposes of taxation. Morgan Stanley served as an investment bank engaged in the business of providing financial advisory and other related services. Morgan Stanley Advantages Services Pvt. Ltd. was established as an independent Indian company that provided support services to Morgan Stanley through a mutually concluded services agreement.

117 AIR 2004 SC 3541. There were several intellectual property rights-related cases; one that needs specific mention is Novartis AG v. Union of India and Others, (2007) 4 Madras Law Journal 1153. This case dealt with s. 3(D) of the Indian Patents Act and its viability and consistency with the TRIPs agreement.

118 (2005) 7 SCC 234.

119 Some important cases in the file of arbitration are S.B.P. & Co. v. Patel Engineering Ltd, (2005) 6 SCC 288; Konkan Railway Corporation Ltd. v. Rani Construction (P) Ltd., (2002) 2 SCC 388 and see also (2000) 8 SCC 159l; Renusagar Power Co. Ltd. v. General Electric Co., (1984) 4 SCC 679.