Special Series: Perspectives from Undergraduate Law Students
LL.B. Student Contribution
–Shubhangi Agarwalla, B.A., LL.B. Student (Hons.), National Law University, Delhi
Since the late 1970s, the Supreme Court has, on the basis of Article 51 of the Constitution of India, started articulating a sense of obligation towards applying international law in its decisions. The high visibility of the cases in which the Court has called upon international law has brought a lot of attention to this practice.
Historically, the doctrines of monism and dualism have been used to understand the relationship between the international and the domestic order. According to monist approaches, international law ought to be automatically incorporated into the domestic legal order, without the requirement of any additional act of adoption or transformation by the state. On incorporation, international law is slotted into the hierarchy of legal sources applicable within the domestic legal order. Dualists however believe that international and domestic laws operate in distinct spheres and so the only mechanism for the transformation of international law into domestic law is through the medium of regular domestic law-making processes. As doctrines, monism and dualism are formalistic constructs that fail to reflect the numerous ways in which global legal interactions take place, especially in light of the increasing overlap of the international and domestic legal orders. However, they are given importance by various state authorities. India, for example, allocates powers in relation to international law along the dualist paradigm. The relevant part of Article 51 exhorts the state, and not the courts, “to foster respect for international law and treaty obligations in the dealing of organized people with one another.” The Constitution Assembly debates barely shed any light on the intent, scope, or content of the provision. In fact, while introducing the draft article for discussion, Dr. Ambedkar, the Chairperson of the Drafting Committee, stated that, “[t]he propositions contained in this new article are so simple that it seems to be super-arrogation to try to explain them to the House by any lengthy speech.”
Interestingly, an argument can be made that the purpose of Art. 51 was never meant to be enforced by the judiciary to invoke international norms.