International Law in India: Articles 51, 73, 253 and Cases

The Constitution does not declare whether international law is part of Indian law. The answer has been worked out by the courts from a few provisions: Article 51 among the Directive Principles, the Union's executive and legislative powers under Articles 73 and 253, and the Union List entries on foreign affairs. This note covers those provisions and the leading decisions that settle how Indian courts treat customary international law and treaties.

1. Constitutional Provisions

Figure 1: Constitutional basis

• Article 51. The State shall endeavour to (a) promote international peace and security, (b) maintain just and honourable relations between nations, (c) foster respect for international law and treaty obligations in the dealings of organised peoples with one another, and (d) encourage settlement of international disputes by arbitration; as a Directive Principle, it is not enforceable by courts but guides interpretation.
• Article 73. The executive power of the Union extends to matters on which Parliament can make laws and to the rights, authority and jurisdiction exercisable by the Government of India under any treaty or agreement.
• Article 253. Notwithstanding the distribution of legislative powers, Parliament may make any law for the whole or any part of India to implement any treaty, agreement or convention, or any decision of an international conference, association or other body, even on a State List subject.
• Union List. Entries 10 to 21 cover foreign affairs, diplomatic and consular matters, the United Nations, international conferences, treaties (entry 14), war and peace, foreign jurisdiction, citizenship, extradition, passports and visas, and piracy and offences against the law of nations.
• Article 372. Laws in force before the Constitution, including the common law rule that customary international law forms part of the law of the land, continue subject to the Constitution.

Statutes enacted to implement treaties include the Geneva Conventions Act, 1960, the Diplomatic Relations (Vienna Convention) Act, 1972, the Environment (Protection) Act, 1986, the Biological Diversity Act, 2002, the Rights of Persons with Disabilities Act, 2016 and the Maritime Anti-Piracy Act, 2022.

2. How Courts Apply International Law

Figure 2: The approach of Indian courts

• Custom. Rules of customary international law are part of Indian law unless they conflict with a statute or the Constitution.
• Treaties. A treaty does not by itself change domestic law; where a statute implements it, the treaty guides interpretation; where no law exists, conventions consistent with fundamental rights may be read into them.
• Conflict. A clear statute prevails over a conflicting treaty or customary rule; courts first try to read the two together.

3. Leading Cases

Figure 3: Milestones in Indian case law

• Kesavananda Bharati v State of Kerala (1973). Sikri CJ observed that, in view of Article 51, the Court must interpret the Constitution, if its language is not intractable, in the light of the UN Charter and the declarations subscribed to by India.
• Jolly George Varghese v Bank of Cochin (1980). Article 11 of the ICCPR bars imprisonment merely for inability to fulfil a contractual obligation; until enacted, the Covenant does not override s.51 CPC, but the Court read s.51 with Article 21 to allow detention of a judgment debtor only on proof of wilful refusal despite means.
• Gramophone Co of India v Birendra Bahadur Pandey (1984). Rules of international law are incorporated into national law and considered part of it unless they conflict with an Act of Parliament; courts should construe statutes to avoid conflict, but where Parliament has spoken clearly the statute prevails; goods in transit to Nepal were held not to be imported under the Copyright Act.
• Vellore Citizens Welfare Forum v Union of India (1996). The precautionary principle and the polluter pays principle are part of the environmental law of India; rules of customary international law not contrary to municipal law are deemed incorporated.
• Vishaka v State of Rajasthan (1997). In the absence of domestic law on sexual harassment at work, international conventions consistent with fundamental rights and in harmony with their spirit, here CEDAW, must be read into Articles 14, 15, 19 and 21; the Court laid down guidelines relying on Articles 51(c) and 253.
• People's Union for Civil Liberties v Union of India (1997). Article 17 of the ICCPR, protecting privacy, was used to interpret Article 21 in regulating telephone tapping.
• NALSA v Union of India (2014). International conventions and the Yogyakarta Principles, consistent with fundamental rights, were relied on to recognise the rights of transgender persons.
• Commissioner of Customs v G.M. Exports (2015). Where a statute implements a treaty, the treaty may resolve ambiguity, a purposive reading is preferred, and the statute should be read in conformity with the treaty; where India is not a party or a conflict arises, domestic law prevails.
• Justice K.S. Puttaswamy v Union of India (2017). Article 12 of the UDHR and Article 17 of the ICCPR supported recognition of privacy as a fundamental right.
• Mohammad Salimullah v Union of India (2021). The Court accepted that national courts may draw on international law so long as it does not conflict with municipal law, but declined to restrain the deportation of Rohingya refugees on the basis of non-refoulement, India not being a party to the 1951 Refugee Convention.

4. Frequently Asked Questions

Can an Indian court enforce a treaty that Parliament has not implemented?

Not against a clear statute. An unimplemented treaty does not change domestic law, but courts use it to interpret ambiguous statutes and, where there is no domestic law, may read a convention consistent with fundamental rights into Part III, as in Vishaka (1997).

Can Parliament legislate on a State subject to implement a treaty?

Yes. Article 253 operates notwithstanding the distribution of legislative powers, so Parliament may legislate for the whole or any part of India on any subject, including State List subjects, to implement a treaty or an international decision.

5. Related Topics

• Topic 4: International Law and Municipal Law. Monism and dualism.
• Topic 6: Treaty Making and Implementation in India. Executive power and legislation.
• Topic 46: Human Rights in India. Treaties in Indian courts.