Academic journal article Stanford Journal of International Law

The Use of International Law in Constitutional Interpretation in the Supreme Court of India

Academic journal article Stanford Journal of International Law

The Use of International Law in Constitutional Interpretation in the Supreme Court of India

Article excerpt

I. INTRODUCTION                                                      28 II. USE OF INTERNATIONAL TREATIES AND CONVENTIONS FOR     CONSTITUTIONAL INTERPRETATION                                    35     A. International Treaties and Conventions as Domestic        Interpretive Aids                                             35     B. International Treaties, Conventions, and Constitutional        Interpretation in India                                       38     C. Non-Refoulement and Other International Treaties and        Conventions                                                   49 III. USE OF CUSTOMARY INTERNATIONAL LAW FOR CONSTITUTIONAL      INTERPRETATION                                                  53      A. Binding nature of Customary International Law in a Domestic         Court                                                        53      B. Customary International Law and the Supreme Court of India   54      C. Is Non-Refoulement Customary International Law?              60 IV. CONCLUSION                                                       66 

I. INTRODUCTION

Can a domestic court rely on, or refer to, international law while interpreting the country's constitution, and if yes, then what is the extent to which such reliance or reference is permissible? This article examines this question in the context of the Indian Constitution and the jurisprudence of the Supreme Court of India. The Supreme Court of India, often called the most powerful supreme court in the world, (1) does not shy away from relying on international law to interpret its laws and the Constitution. (2) On the other side of the globe, the American Bar Association has noted that "international legal norms may find their way into United States law... when used by courts to inform the content of otherwise ambiguous Constitutional or statutory provisions." (3) While the use of international law in domestic constitutional interpretation has been examined in the context of other supreme courts, (4) the juristic method of the Supreme Court of India in the area of the use of international law for constitutional interpretation remains understudied and under-theorized. No scholarly attention has so far been paid to the mode of judicial reasoning used by the Supreme Court of India in this area. The use of international law for constitutional interpretation is, however, not new in India. Being the ultimate interpreter of the Indian Constitution, the Supreme Court of India has been invited several times to interpret the fundamental rights provisions of the Indian Constitution by relying on or referring to international law. (5)

Most recently, the Rohingya immigration crisis has resulted in a Public Interest Litigation (PIL) being filed before the Supreme Court of India, where a big part of the case is directly related to the use of international law for constitutional interpretation. In Mohammad Salimullah v. Union of India, (6) a near perfect example of "transnational public law litigation," (7) the petitioners have approached the Court under Article 32 (8) of the Indian Constitution to "prevent the deportation of the petitioners and other Rohingya refugees in India and to take steps for the recognition of these refugees in India in keeping with the constitutional guarantees" under Articles 14, 21, and 51(c) of the Indian Constitution. (9) Articles 14 and 21 of the Indian Constitution guarantee judicially enforceable fundamental rights. (10) Article 14 provides, "The State shall not deny to any person equality before the law or equal protection of the laws within the territory of India" (the "Equality Clause"). (11) Article 21 provides that, "No person shall be deprived of his life or personal liberty except according to procedure established by law" (the "Life and Liberty Clause"). (12) Article 51 (c), a non-justiciable (13) "directive principle of state policy" inter alia provides, "The State shall endeavour to... foster respect for international law and treaty obligations in the dealings of organised peoples with one another. …

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