M J Antony: Dissent over international agreements

OUT OF COURT

Merely being a party to these covenants doesn't bind India to follow them

As a mark of the times, there has been a rise in the references to international treaties, covenants and conventions in the recent judgements of the Supreme Court.

There are so many such international documents with varying degrees of influence and authority that the judges do not always agree on their enforceability in the Indian courts.

When there is a signed treaty between India and others, the chances of differing views are less. In Union of India vs Azadi Bachao Andolan (2004), the court had little difficulty in following the terms of the Indo-Mauritius Double Taxation Avoidance Convention 1983.

It dealt with the tax liability of offshore companies registered in that country in respect of gains from transactions in shares and securities.

In the case of Mackinnon Mackenzie & Co vs Audrey 'Costa (1987), the court noted that India was a party to the international convention concerning equal remuneration for men and women for work of equal value (the Equal Remuneration Convention, 1951).

It adopted the principle embodied in that convention to interpret the Equal Remuneration Act 1976 and granted benefits to the lady steno who challenged sexual discrimination in her Mumbai office.

In Sheela Barse vs Children's Aid Society (1987), the Supreme Court stated that the international instruments that had been ratified by India and which elucidated norms for the protection of children cast an obligation on the state to implement their principles.

In Vishaka vs State of Rajasthan (1997), the court said: "It is now an accepted rule of judicial construction that regard must be had to international conventions and norms for construing domestic law when there is no inconsistency between them and there is a void in the domestic law."

In Pratap Singh vs State of Jharkhand decided earlier this year, the court dealt with the rights of children enshrined in the Juvenile Justice Act 2000. It was enacted to discharge the obligation to follow the UN Standard Minimum Rules for the Administration of Juvenile Justice 1985, also known as the Beijing Rules.

"Some provisions of the international law, although may not be a part of our municipal law, the courts are not hesitant in referring thereto so as to find new rights in the context of the Constitution," the judgement said.

When there was some criticism against reading of conventions and covenants into the national laws, the court defended its stance in People's Union for Civil Liberties vs Union of India (1997) thus: "the provisions of the covenant, which elucidate and go to effectuate the fundamental rights, can certainly be relied upon by courts."

However, two months ago, there was some difference of opinion on this count in another judgement bearing the same title. The petition was about the appointment of a police officer in the National Human Rights Commission.

According to one of the judges, a police officer could not be appointed to this commission, according to the "Paris Principles". In 1991, the UN sponsored meetings of representatives of national institutions in Paris where a detailed set of principles on the status of national human rights institutions was developed.

This judge was firm in his view that the Paris Principles were applicable in this case and the officer could not be appointed. His judgement said: "International treaties have influenced interpretation of Indian law in several ways. This court has relied upon them for statutory interpretation where the terms of any legislation are not clear or are capable of more than one meaning. In such cases, the courts have relied upon the meaning which is consonance with the treaties, for there is a prima facie presumption that Parliament did not intend to act in breach of international law, including state treaty obligations."

Since there was difference of opinion on this point, the issue was placed before a three-judge bench. It over-ruled the above view. The majority view now is that international conventions could be a guide only when there is a gap in the domestic law or when there is vagueness in the statute.

"Merely because India is party to these documents does not cast any binding obligation on it," the judgement said, adding that a mere declaration in the international forums or the UN General Assembly has no binding value.

Thus, the applicability of the international documents depends upon the degree of approval given to them by the sovereign government.

However, since such documents are proliferating these days, the last word has not been said about their application in the courts and arbitration forums.