IS THE DISTINCTION BETWEEN LAW AND CONVENTION GETTING BLURRED?
I. INTRODUCTION
The omnipresent tendency of international law in modern times regulates several fields that include trade, environment, human rights, health, and so on. As a result, international law penetrates into a country’s domestic laws and has a direct influence on countries. Thus, a thorough insight into the interface between international law and domestic law is of supreme importance. International conventions/treaties are not binding in India unless the legislature gives an effect by way of enacting legislation. Yet, The Constitution of India has no provision that explicitly deals with the relationship and the force of international law in the Indian courts. This ‘hush’ gave the courts in India, the cushion to implement or enforce international law by way of their rulings and the enforcement may have a direct effect on the domestic law.
II. LAW AND CONVENTION
Law is the set of rules and regulation that governs society’s conduct through social institutions. Legislature makes law in different forms like acts, ordinances, statutes, bills, and enactments and is enforced by the state within its jurisdiction. It is usually derived from certain customs and practices to deal with social situations and relationships. Anyone who defies the law and does illegal activity will be punished by the authority. In simple words, the law is the tool to have control and order in the state and acts as the intermediary of relationships among people.
To define convention in simple words, it is the non-legal rule that imposes an obligation upon the ones bound by it and provides the state with the particular norms, rules, regulating matters that are usually developed from a custom. They could be called unwritten laws that are the products of political implications. In sociology, conventions are the socially accepted norms that do not have any legal binding in the state. They are mainly used in countries like the UK that do not have properly written rules to govern them. As explained in the case of Attorney General v Jonathan Cape Ltd., ([1976] QB 752) a convention is described to the socially acknowledged rules of practice that apply to only those it binds but are not enforced in any courts.
As stated by Keeton, the Constitutional conventions are: (Keeton, The United Kingdom: Commonwealth Series, vol 1 (1955).)
[T]he unwritten principles which, though they could never be enforced as law in the courts are nonetheless rules since, in fact, the players of the constitutional game do observe them, for if they are not observed, the constitutional game would immediately degenerate into a political fracas or, worse still, a bloody revolution.
[C]onventions grow from long-standing accepted practice or by agreement in areas where the law is silent and such a convention would not breach the law but fill the gap (S.P. Anand v H.D. Deve Gowda, AIR 1997 SC 272, at 279.).
In many cases, the law and conventions are presumed to be identical and the difference between them is getting blurred every day. When both are kept on a scale to measure the difference, the law stands at the top to speak in terms of high enforceability and conventions do not have a clear stand in terms of it. The conventions could be legalized or a law can be introduced that enforces a particular convention as law. They could be imposed by the judicial intervention and it gets shaped into law over the period of formalizing it. Here are some of the basic differences between them. The laws are legally enforced by the legislatures in the state whereas the role played by the political actors pressurizes to impose the conventions. It is evident by definition of law that it is a set of rules and one rule is bound by another. Conventions, on the other hand, do not have a system, works separately, and stand-alone. Convention can be considered optional but the law cannot be treated as such. Regarding administrative decisions, laws can be certain and have binding values when compared with conventions.
III. RECOGNITION OF CONVENTIONS IN OTHER COUNTRIES
Conventions are found fundamental to governments who have parliamentary democracies, countries like the United Kingdom, Canada, New Zealand and Australia have binding value for conventions. They have relied on it to overcome the challenges in modern governance and accommodate changes in existing practices. In those democracies, conventions precede over the law and law-making processes, aiding them in forming the governments themselves.
In the UK many conventions help in everyday administrative decisions and the parliamentary conventions like Royal prerogatives have the power to function and even dissolve the parliament. As this country does not have properly written laws, non-enforcement of certain conventions will have appalling consequences. According to author G. Ganz, conventions are way more essential than the law in the British government as its essence lies in them. They were considered to be essential obligations to fulfill and its breach would cause a lot to change and be seen as unconstitutional behaviour. It is an integral part of the state and even enforced by the courts in many cases.
Parliament of Canada has thus exclusive power to implement a convention when it comes to Section 132. It cannot legislate to implement them without the consent of the Provinces if the international convention was signed by Canada as an independent State, not as a member of the British Commonwealth of Nations, and the matter of the Convention relates to the classes of Provincial subjects (A.-G. for Canada v A.-G., Ontario, (1937) AC 326.).
The communist countries like China and the Republicans of Korea have treated conventions cautiously and consider certain conventions are unequal and non-binding. It finds those conventions are affecting their sovereignty and integrity. On the other hand, in a republican government like the United States with a sturdy system of separation of powers and two political parties, convention matters. But they are mostly under-enforced by the officials and the judicially enforced US constitutions do have only political binding. They are legally binding once it is ratified by the state as an amendment.
IV. INDIAN PERSPECTIVE ON CONVENTIONS
Depending on the constitutional structure of each State, the binding nature of conventions is decided. On the monist approach, the ratification of conventions will result in becoming part of the domestic law. It is believed that both forms of one legal framework and assumed that international conventions are supreme to that of domestic law. On contrary, the dualist approach is the ratification of convention through domestic legislation. Both the laws exist independently where the state legislation governs the internal affairs and international conventions have very little binding in those matters. The conventions that are made into that country will not enforceable at the hands of the courts and it does not become part of the local law.
India adopts the ‘dualist theory’ of international law. Hence, the principles, rules and conventions of international law could not be brought forth in/by municipal courts unless they are expressly encompassed into national law. The subject matter of the convention is given the required importance and is applicable based on the agreement. However, they cannot be enforced as law unless they are ratified by the state. But in the case of the Vienna Convention on the Law of Treaties, the Supreme Court of India has given a customary status without any ratification. Unless the legislature has passed a resolution on it a convention cannot be recognized.
The Legislature has complete freedom to reject any convention and it can restrict its enforceability into administrative whereupon does not have any effect in the state. Also, if the convention is found to be inconsistent or violating any provisions of The Constitution of India it can be invalidated certainly. Parliament has the power to make laws that can govern, lay the manner and procedure by which conventions can be implemented.
V. PURPOSE OF DISTINGUISHING LAWS AND CONVENTIONS
Conventions may be clear, distinguishable from rule of law and equally important to it but they cannot be considered suitable for a country like India. Many cases prove that conventions can never replace higher-order laws. Kesavananda Bharati v State of Kerala (AIR 1973 SC 1461) has put on restriction on law-making power. Any amendments or laws inconsistent or that alters and destroys the basic structure of the constitution will be struck down by the court. Hence conventions may not be easily included in the law.
As well established in the case of Attorney General v Jonathan Cape Ltd. (Supra note 1), conventions have a disadvantage over the laws as it lacks legal remedy. In this case, the court required the acknowledgment of the convention to provide an injunction. But the conventions did not have jurisdiction in the court as it cannot be enforced in favor of the case. This clearly establishes that conventions are useful only in providing wide interpretation and explaining the background of the legislature rather than having enforceability as that of the law.
The codification of a convention is way more difficult than compared with constitutional laws. Conventions may seem to be flexible but they could never be balanced with dynamic laws of our constitution that reflect political and moral values governing the people of a state. The Constitution of India had many loopholes like articles 75, 124, and 31B but the obsolete statutes were struck down by the court. Bringing in conventions to replace them is not a solution and it would only destroy the flexibility of the conventions. Formalizing the convention and giving it jurisdiction in the state will do only worse and it is better to leave it uncodified. This gives a fine conclusion that conventions would create chaos and confusion when replaced or included as laws and everything would be crystal clear without adding the conventions. Codifying the convention will only limit its use and restricts its extension, which may be required, though it goes against democracy.
VI. GIVING EFFECT TO CONVENTIONS UNDER ARTICLE 253 AND 51(c) OF THE CONSTITUTION OF INDIA
According to The Constitution of India, the law includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usages having in the territory of India the force of law (The Constitution of India, art. 13(3)) and this provision that do not include conventions under law. Therefore, they do not have enforceability and legally binding nature as that of law. But the conventions can become law and have enforceability if they are ratified by the legislature or bring in a law that implements it.
The main reason for not including them under the ambit of the law in art. 13(3) is that certain conventions could be inconsistent or in conflict with legal rules of the state. Some of them could be permissible under law but difficult to practice. The main definition of law itself is that they are enacted or amended by the legislature that is consistent with the constitution. As these conventions are not enacted by the legislature, they cannot be included in the contents of law.
Article 253 grants Parliament the exclusive power in matters of international affairs. Parliament has the power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body (The Constitution of India, art. 253). This empowers parliament to decide whether a convention could be implemented or not. Parliament has the enabling power to enact a law for implementing international conventions and norms under art. 253 read with art. 246 and entries 14, 15 and 16 of the Union List in the Seventh Schedule to the Indian Constitution.
Parliament is more competent to make laws in this regard rather than the State legislatures and the same has been ratified by the courts in India. In the case of Maganbhai Ishwarbhai Patel v Union of India, ((1970) 3 SCC 400) it was observed by Justice Shah that:
[T]he effect of Article 253 is that if a treaty, agreement or convention with a foreign State deals with a subject within the competence of the State Legislature, the Parliament alone has, notwithstanding art. 246(3), the power to make laws to implement the treaty, agreement or convention or any decision made at any international conference, association or other body.
The same has been adopted by the Bombay High Court in the case of P.B. Samant v Union of India (AIR 1994 Bom. 323). The justification given by the Supreme Court in the case of State of West Bengal v Kesoram Industries Ltd. ((2004) 10 SCC 201) is that:
[I]t can be seen that Article 253 contains a non-obstante clause. Article 253, thus, operates notwithstanding anything contained in article 245 and article 246. Article 246 confers power on the Parliament to enact laws with respect to matters enumerated in List I of the Seventh Schedule to the Constitution. Entries 10 to 21 of List I of the Seventh Schedule pertain to International Law. In making any law under any of these entries, parliament is required to keep Article 51 in mind. Article 253 of The Constitution of India provides that while giving effect to an international treaty, the Parliament assumes the role of the State Legislature and once the same is done the power of the State is denuded.
Certain examples of laws enacted from conventions under Article 253 are the United Nations (Privileges and Immunities) Act, 1947; Geneva Convention Act, 1960; Anti-Hijacking Act, 1982 and legislations relating to environment and TRIPS. The Diplomatic Relation (Vienna Conventions) Act 1972, Protection of Human Rights Act 1993, SAARC Convention (Suppression of Terrorism) Act 1993.
Article 51(c) states that the State shall endeavour to foster respect for international law and treaty obligations in the dealings of organised peoples with one another; and encourage settlement of international disputes by arbitration (The Constitution of India, art. 51(c)). The courts in India have held in a catena of cases that, by virtue of Article 51, the treaties in which India is not a party shall also be implemented with good faith. However, in the absence of national law, the executive could not be instructed to go by the treaty. Yet, there arises a paradoxical situation where the treaties become automatically enforceable in the municipal domain, except where there is a requirement to amend the Constitution or existing law or when a new law is to be enacted. Hence, the courts rely on the treaties that are not in conflict with the Indian laws. However, as per Article 37, the provisions contained in the Directive Principles of State Policy shall not be enforceable by courts, but the principles are nevertheless fundamental in the governance of the country and the duty of the State is to apply these principles in making laws.
VII. JUDICIAL RECOGNITION OF CONVENTIONS
Until the Second Judges Case, there were no traces of enforcing or recognizing conventions in India by the judiciary. Justice Kuldip Singh elaborately considered the conventions in his judgment. He opined that “the written constitutions cannot provide for every eventuality. Constitutional institutions are often created by the provisions which are generally worded. Such provisions are interpreted with the help of conventions that grow with the passage of time (Advocates on Record Association v. Union of India, (1993) 4 SCC 441). Chief Justice Sikri has held in Kesavananda Bharati v State of Kerala that ‘in view of Article 51, the court must interpret in light of the United Nations Charter and solemn declaration subscribes to India’ (Supra note 5). Also, in U.N.R. Rao v. Smt. Indira Gandhi, the Supreme Court held that ‘While interpreting the Constitution, the conventions prevalent at the time when the Constitution was formed, have to be kept in mind.’ ((1971) 2 SCC 63).
In Nilabati Behera v State of Orissa (AIR 1993 SC 1960), the Honorable Supreme Court justified the compensation granted for custodial death by placing reliance on Article 9(5) of the International Covenant on Civil and Political Rights (ICCPR). Also, the Apex Court, in the case of Chairman, Railway Board and Others v Chandrima Das, while granting protection to a foreign rape victim, referred to the Universal Declaration of Human Rights and observed that ‘The application of UDHR, and principles thereof may have to be read, if need be, into the domestic jurisprudence.’ ((2000) 2 SCC 465).
It has been observed in Vishaka v State of Rajasthan ((1997) 6 SCC 241) that:
[R]egard 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. International conventions not inconsistent with fundamental rights must be read to enlarge the meaning and content thereof.
This has been reaffirmed by the Hon’ble Apex Court while recognizing transgender as a third category of gender in the case of the National Legal Services Authority v Union of India ((2014) 5 SCC 438). However, in this case, and in the case of G.Sundarrajan v Union of India ((2013) 6 SCC 620), the court has resorted to the international treaties that were not even signed by India.
In these cases, the Hon’ble Supreme Court took the support of international conventions in order to interpret the domestic/national law. The above-mentioned cases had elaborately considered the scope of conventions so as to use them as an external aid to interpretation. Some of the conventions act as a benchmark for the Indian Judicial System to fill in the gaps or to enlarge the scope and content of the domestic law to promote the object of constitutional provisions. However, we can witness a much wider interpretation of international conventions in some cases where the conventions are not just used as a tool for interpretation. Instead, the conventions are being recognized by the Court of law and as a result, they become enforceable without any legislative action.
The Hon’ble Apex Court in the case of Gramophone Co of India v Birendra Bahadur Pandey opined that ‘The comity of nations requires that rules of international law may be accommodated in the municipal law even without express legislative sanction provided they do not run into conflict with the Acts of Parliament.’ (AIR 1984 SC 667) It has been enshrined by the Hon’ble Supreme Court in the case of Vellore citizens Welfare forum v Union of India (AIR 1996 SC 2715) while upholding the validity of the ‘polluter pays’ principle and the principle of sustainable development that:
[O]nce these principles are accepted as part of customary international law, there should be no difficulties in accepting them as part of our domestic law. It is almost an accepted proposition of law that the rules of customary international law, which are not contrary to the municipal law shall be deemed to have been incorporated in the domestic law and shall be followed by the court of law.
The court came to the conclusion that sustainable development was accepted as a part of customary international law by referring to the Bruntland report and the Rio Declaration. These international instruments pertain to soft law that does not have a binding effect even internationally.
The Apex Court in its recent judgment in K. Lakshiminarayanan v Union of India (2018 SCC Online SC 2730) has held that:
[A] convention, while it is a convention, is to be distinguished from the law. But this does not mean that what was formerly a convention cannot later become the law. When customary rules are recognized and enforced by courts as law, there is no reason why a convention cannot be crystallized into law and become enforceable. Conventions can become law also by judicial recognition. Once it is established in the court of law that a particular convention exists and the constitutional functionaries are following the same as a binding precedent, then there is no justification to deny such a convention, the status of law.
The court even went on to say that there is no distinction between the “constitutional law” and an established “constitutional convention” and both are binding in the field of their operation. Once the court is satisfied that a particular convention exists and is operating, then the convention becomes a part of the “constitutional law” of the land and can be enforced in the same manner.
VIII. EFFECTS OF JUDICIAL RECOGNITION OF CONVENTIONS
‘Separation of powers’ is one of the most significant aspects of the Constitution of India. As far as India is concerned, the legislature is the only body that has the power to enact laws. The judiciary has no power to enact laws since that power is vested with the legislature. The courts can declare the law by interpreting laws enacted by the legislature. It is pertinent to note that the law declared by the Supreme Court shall be binding on all courts within the territory of India (The Constitution of India, art. 141). When the Apex Court recognizes or incorporates a particular convention, then it automatically becomes the law declared by the court under art. 141, thereby creating a binding nature on all courts. As a result, the convention becomes a law that is binding on the courts in India. When a convention is recognized by the court during adjudication, it is contemplated as a rule, but this dissolves the difference between recognition and enforcement of those conventions. The process of conversion from recognition to enforcement is highly uncertain and its implausible breach will result in a free-standing cause of action.
The judicial recognition of convention is also against the doctrine of ‘parliamentary sovereignty’, which says parliament is the supreme body that has the power to make laws and no other body will intervene in this power. Judiciary quoting certain conventions to decide upon a case and recognizing that as the law is extremely against the doctrine. Legislature stands in a better position on making and ratification of laws than the judiciary. Judiciary can only review and strike down the ones that are inconsistent with the constitution and not add one if required.
Even the Hon’ble Supreme Court objected to the judicial recognition/incorporation of conventions. In the case of Jolly George Varghese and others v Bank of Cochin, Justice Krishna Iyer wrote that ‘The positive commitment of the States Parties ignites the legislative action at home, but does not automatically make the alliance as an executive part of the corpus juris of India. Until the municipal law is changed to accommodate the treaty, what binds the courts is the former not the latter.’ (AIR 1980 SC 470) In Ale Akbar Hashemi Mirza v the United Arab Republic, the Hon’ble Supreme Court held that ‘International treaties or agreements entered into by India shall not have the force of municipal law without appropriate legislation. A treaty which modifies the law of a state is not binding on Municipal Courts unless there is specific legislation to the effect.’ (AIR 1966 SC 230).
While interpreting the meaning of the word ‘torture’ in the case of Selvi v State of Karnataka, ((2010) 7 SCC 263) the court held that:
[T]hough India is a signatory to the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984, it has not been ratified by Parliament nor has any corresponding legislation been enacted under Article 253. The domestic court, therefore, is not absolutely bound by the Convention, but it has a significant persuasive value because it represents an evolving international consensus on human rights norms.
Most recently, the Supreme Court in State of West Bengal v Kesoram Industries reiterated that ‘India follows the “doctrine of dualism” and a treaty entered into by India cannot become law of the land unless Parliament passes a law as required under art. 253’ (Supra note 11).
However, the Supreme Court in some cases deviated from adopting the dualist approach of India, thereby blurring the distinction between international law and domestic law. In those cases, the court often relied upon art. 51(c) of the Constitution of India. Article 51(c) states that the State shall “endeavour to” foster respect for international law and treaty obligations. Thus, the obligation of the state is to make an attempt or effort to respect international law and not to achieve the result. Thus, there arises a question of whether the Supreme Court could rely upon this Article to enforce conventions (having regard that it could become a law and be binding on all courts)?
Even in the recent WTO Solar Panel case against the United States, India argued, citing its own Supreme Court’s jurisprudence that ‘International instruments have “direct effect” in India because rules of international law are accommodated into India's domestic legal system without express legislative sanction, provided they do not run into conflict with laws enacted by the Parliament.’ (Appellate Body Report, India – Certain Measures Relating To Solar Cells and Solar Modules, ¶ 5.98 WT/DS456/AB/R (September 16, 2016)). The Appellate Body of the WTO Panel found, however, based on India's explanations that: (Id. at 39)
[I]nternational law obligations are not 'automatically incorporated' into Indian law, but rather that they may possibly be acted upon and implemented by certain domestic authorities, and that India had therefore failed to demonstrate that the relevant international instruments have ‘direct effect’ in India.
IX. CONCLUSION
International conventions cannot be enforced in Indian courts unless there is a domestic law that gives effect to those conventions. However, in practice, the courts have enforced international conventions, leading to the practice of ‘creeping monism’, where the common law courts incorporate the international legal norms into national law. This practice takes away the difference between monism and dualism. Moreover, the courts directly enforcing conventions blurs the distinction between law and convention. Thus, there should be a line drawn between adopting the conventions as a part of domestic law and using them as a tool to interpret and widen the scope and meaning of domestic law. It would be judicious if the courts stick to the latter one than to the former. If the courts enforce conventions, that would have a ‘direct effect’ on the subjects of the state without any enactment by the legislature. It would lead to a circumstance where all the conventions, that are not inconsistent with the Constitution, are laws and are directly enforceable by the courts. In doing so, domestic law and international law are placed on the same pedestal. Hence, by limiting the scope of international conventions in the Indian courts, there can be a thick line drawn between law and conventions, so that the distinction between them does not get blurred.