INTRODUCTION

The enforcement of international law in the Indian Constitution is

primarily governed by Article 51 of the Constitution, which sets forth
the directive principle of state policy requiring the Indian government
to foster respect for international law and treaty obligations in the
conduct of its affairs. Although Article 51 is not legally enforceable in
Indian courts, it reflects India’s commitment to the principles of
international law and guides the government in its actions at the
international level.

the Indian judiciary has recognized the importance of international

law in its interpretation of fundamental rights guaranteed under the
Constitution. The Supreme Court of India has held that international
human rights norms can be used as interpretative tools to give
meaning and effect to fundamental rights enshrined in the
Constitution, especially in cases involving issues such as right to life,
liberty, and dignity.

DOMESTIC AND INTERNATIONAL LEGAL SYSTEM

Indian Legal System:

Sources of Law: The Indian legal system is based on a combination of

various sources of law, including the Indian Constitution, legislation
enacted by the Indian Parliament and state legislatures, judicial
precedent, customary law, and personal laws of different
communities.

Judiciary: The Indian judiciary is independent and has a hierarchical

structure, with the Supreme Court of India as the highest judicial
authority in the country. The judiciary in India has the power of
judicial review and can interpret the Constitution and other laws, and
also adjudicate disputes between parties.

Sources of Law: The international legal system is primarily based on

treaties, conventions, customary international law, and general
principles of law recognized by nations. International law is created
through agreements among states, international organizations, and
customary practices that are followed by states.

International Organizations: International organizations such as the

United Nations (UN), International Court of Justice (ICJ), and World
Trade Organization (WTO) play important roles in the international
legal system. They establish norms, rules, and procedures that govern
the relations between states and other international actors.

Treaties and Conventions: Treaties and conventions are binding

agreements between states and are an important source of
international law. States voluntarily enter into treaties and
conventions, and they are expected to comply with their obligations
under these agreements.

INTERACTION BETWEEN DOMESTIC AND INTERNATIONAL

LAW

Treaties and Conventions: India is a party to numerous international

treaties and conventions, and these international agreements may
require implementation and enforcement within the Indian legal
system. India may pass domestic legislation to give effect to its
international obligations, and courts in India may also interpret and
apply international law principles in domestic legal proceedings.

Customary International Law: Customary international law, which is

based on consistent and general practice accepted as law by states,
may also be relevant in the Indian legal system. Indian courts may
consider customary international law in their decisions, especially
when there are no specific domestic laws on a particular issue.

International Organizations: India is a member of various

international organizations, including the United Nations (UN), and
may be subject to their rules, regulations, and decisions. International
organizations may also provide guidance and assistance to India in
matters related to international law and legal cooperation.

International Dispute Resolution: India may be involved in

international disputes with other states or entities, and these disputes
may be resolved through international dispute resolution
mechanisms, such as the International Court of Justice (ICJ) or
arbitration. The decisions of these international bodies may have
implications
India and International Law

Article 27 of the Vienna Convention on the Law of Treaties, 1969, made it clear under the
principle of pacta sunt servanda, that the state is under duty to honor its international obligation
even if it means amending its domestic law. In case a dispute arises between domestic law and
international law, it is the duty of the court to reconcile the two and to see how far the state's
constitution allows implementation of international law.

Article 253 of the Indian Constitution enables the Parliament of India to make laws pertaining to
international laws in India. Such laws shall be ratified by the President in order to come into
force. The power to implement such laws and treaties and conventions with respect to
international law lies with the Parliament. It should be noted that this power is to be exercised by
the Parliament only and the States do not have a say in it.

PROBLEMS FACED DURING THE ENFORCEMENT OF

INTERNATIONAL LAW IN THE INDIAN CONSTITUTION

Dualism vs Monism: India follows the dualist approach, which means

that international law and domestic law are considered separate and
distinct, and international law does not automatically become part of
domestic law upon ratification. For international law to be enforceable
in India, it must be specifically incorporated into domestic law
through appropriate legislative or constitutional measures. This can
sometimes result in delays or gaps in the enforcement of international
law in the Indian legal system.

Lack of Direct Applicability: International law provisions that are not

specifically incorporated into domestic law may not be directly
applicable or enforceable in Indian courts. Domestic laws may need to
be enacted or amended to align with international law obligations in
order to ensure effective enforcement.
Conflicts with Domestic Laws: There may be instances where
domestic laws or constitutional provisions are in conflict with
international law obligations. In such cases, there can be challenges in
reconciling the two, and courts may need to interpret and harmonize
domestic laws with international law principles, which can be
complex and contentious.

Limited Awareness and Capacity: Awareness about international law

and its principles among legal practitioners, judges, and other
stakeholders in the Indian legal system may be limited. This can result
in challenges in understanding and applying international law in
domestic legal proceedings. Additionally, there may be limitations in
the capacity and resources of the Indian legal system to effectively
enforce and implement international law obligations.

Sovereignty Concerns: As a sovereign nation, India may prioritize its

national interests and sovereignty concerns over international law
obligations in certain situations. This can result in challenges in the
enforcement of international law, particularly in cases where there are
conflicting interests or policy considerations.

Lack of Domestic Implementation Mechanisms: In some cases,

international law obligations may require domestic implementation
measures, such as enactment of specific laws or establishment of
implementation mechanisms. The absence of such measures can
hinder the effective enforcement of international law in the Indian
legal system.

Enforcement of State Obligations: In a federal system like India,

where powers are divided between the central government and state
governments, enforcement of international law obligations can also
face challenges at the state level. State governments may have varying
levels of awareness, capacity, and willingness to enforce international
law obligations, which can impact their implementation.

IMPACT OF ENFORCING INTERNATIONAL LAW ON THE

INDIAN CONSTITUTION
The enforcement of international law can have several impacts on the
Indian Constitution, which is the supreme law of the land in India.
Some of the key impacts of enforcing international law on the Indian
Constitution are:

Incorporation of International Law: When India becomes a party to an

international treaty or convention, and it is ratified and incorporated
into domestic law, it becomes a part of the Indian Constitution. This
means that the provisions of the international treaty or convention are
given legal force and can be enforced in Indian courts. This
incorporation of international law can impact the interpretation and
application of the Indian Constitution, as courts may refer to
international law principles in their decisions and judgments.

Protection of Fundamental Rights: International human rights law,

including treaties and conventions that India is a party to, may
provide additional protection to fundamental rights recognized under
the Indian Constitution. Courts may rely on international human
rights standards in interpreting and enforcing fundamental rights
provisions in the Indian Constitution, which can impact the scope and
extent of protection afforded to individuals under the Constitution.

Development of Domestic Jurisprudence:Enforcement of international

law can contribute to the development of domestic jurisprudence in
India. Judicial decisions related to international law can shape the
interpretation and application of domestic laws and constitutional
provisions, and can set precedents for future cases. This can result in
the evolution of domestic jurisprudence, incorporating international
law principles, and contributing to the development of Indian legal
system.

Sovereignty Considerations: As a sovereign nation, India may need

to balance its international law obligations with its national interests
and sovereignty concerns. This may require careful consideration and
decision-making to ensure that international law obligations are
enforced in a manner that aligns with India’s national interests.
CONCLUSION

In conclusion, the enforcement of international law in the Indian

constitution has significant implications on various aspects of India’s
legal system. It can impact the interpretation, application, and
development of domestic jurisprudence, the protection of
fundamental rights, the obligations on the government, and India’s
international relations. While the incorporation of international law
into the Indian constitution can enhance India’s commitment to
international norms and standards, it also requires careful
consideration of sovereignty concerns and balancing with domestic
interests.