Introduction
This report brings out current trends in state practice and domestic implementation of international law in India in 2022. The report mainly focuses on the interpretation and application of international law by the domestic courts, primarily the Supreme Court of India. The report also reflects some of the major developments and engagements of India in the context of international law, most importantly, treaties that India entered into during the relevant period. While international law has been referred to in a large number of judgments by the Supreme Court of India, this report includes only those judgments in which the court has engaged with or applied the relevant international law principles and rules that are reflective of India’s state practice.
Implementation of Treaties
Relationship between International & Domestic Law
The Indian Antarctic Act, 2022 (No. 13 of 2022)
The Antarctic Act (2022) was adopted by the Indian Parliament to give effect to the Antarctic Treaty, 1959; the Convention on the Conservation of Antarctic Marine Living Resources (1980); and the Protocol on Environmental Protection to the Antarctic Treaty (1991). The Act provides for the national measures for protecting the Antarctic environment and dependent and associated ecosystems. India signed the Antarctic Treaty on 19 August 1983 and received consultative status on 12 September 1983; the Convention on the Conservation of Antarctic Marine Living Resources was signed and ratified on 20 May 1980 and 1 June 1985 respectively. India signed the Protocol on Environmental Protection to the Antarctic Treaty on 1 January 1998.
The Weapons of Mass Destruction and Their Delivery Systems (Prohibition of Unlawful Activities) Amendment Act, 2022 (No. 14 of 2022)
The Weapons of Mass Destruction and their Delivery Systems (Prohibition of Unlawful Activities) Act (2005) prohibits unlawful activities such as manufacturing, transport or transfer related to weapons of mass destruction (WMD) and their means of delivery. WMD s are biological, chemical or nuclear weapons. The UN Security Council’s targeted financial sanctions and the recommendations of the Financial Action Task Force have mandated against financing of the proliferation of weapons of mass destruction and their delivery systems. This 2022 Amendment incorporates the prohibition of financing activities linked to WMD s and their delivery systems.
The Energy Conservation (Amendment) Act, 2022 (No. 19 of 2022)
The Energy Conservation (Amendment) Act, (2022) was adopted to amend the Energy Conservation Act (2001). One of the objectives and reasons for the amendment is to ‘facilitate the achievement of “Panchamrit” – as five nectar elements presented by India in COP-26 (Conference of Parties-26) in Glasgow 2021’. India had committed to (a) reach 500GW non-fossil energy capacity by 2030; (b) meet 50 per cent of its energy requirements from renewable energy by 2030; (c) reduce total projected carbon emissions by one billion tonnes from the date of COP-26 to 2030; (d) Reduce carbon intensity of the economy by 45 per cent by 2030, over 2005 levels; and (e) achieve net zero emissions by 2070. The Amendment Act introduces, among other things, the carbon credit trading to address the issue of climate change.
Treatment of International Law by Domestic Courts – Treaties and Custom
Mohammad Irfan v. State of Karnataka MANU/SC/0848/2022
The Supreme Court of India, in this case, explored and distinguished the concept of war as embedded in Section 121 of the Indian Penal Code (IPC) and as understood in international law. The Supreme Court also explored the question of “terrorist acts” constituting an act of war.
275. War, terrorism and violent acts to overawe the established Government have many things in common. It is not easy to distinguish them, but one thing is certain, the concept of war embedded in Section 121 is not to be understood in the international law sense of inter-country war involving military operations by and between two or more hostile countries. Section 121 is not meant to punish prisoners of war of a belligerent nation. Apart from the legislative history of the provision and the understanding of the expression by various High Courts during the pre-independence days, the Illustration to Section 121 itself makes it clear that “war” contemplated by Section 121 is not conventional warfare between two nations. Organising or joining an insurrection against the Government of India is also a form of war. “Insurrection” as defined in dictionaries and as commonly understood connotes a violent uprising by a group directed against the Government in power or the civil authorities. “Rebellion, revolution and civil war” are progressive stages in the development of civil unrest the most rudimentary form of which is “insurrection” – vide Pan American World Air Inc. v. Aetna Cas & Sur Co. 505 FR 2D 989 (2ND Cir, 1974) (FR 2d at p. 1017). An act of insurgency is different from belligerency. It needs to be clarified that insurrection is only illustrative of the expression “war” and it is seen from the old English authorities referred to supra that it would cover situations analogous to insurrection if they tend to undermine the authority of the Ruler or the Government.
276. It has been aptly said by Sir J.F. Stephen:
Unlawful assemblies, riots, insurrections, rebellions, levying of war are offences which run into each other and are not capable of being marked off by perfectly definite boundaries. All of them have in common one feature, namely, that the normal tranquillity of a civilised society is, in each of the cases mentioned, disturbed either by actual force or at least by the show and threat of it.
277. To the list of offences “terrorist acts” had to be added, which are so conspicuous today. Though every terrorist act does not amount to waging war, certain terrorist acts can also constitute the offence of waging war and there is no dichotomy between the two. Terrorist acts can manifest themselves into acts of war. According to the learned Senior Counsel for the State, terrorist acts prompted by an intention to strike at the sovereign authority of the State/Government, tantamount to waging war irrespective of the number involved or the force employed.
The Court also explored Section 3(1) of Prevention of Terrorism Act (2002) – with the intent to threaten the unity, integrity, security or sovereignty of India or to strike terror in the people or any section of the people does any act or thing by using bombs, dynamite or other explosive substances or inflammable substances or firearms or other lethal weapons or poisons or noxious gases or other chemicals or by any other substances (whether biological or otherwise) of a hazardous nature or by any other means whatsoever and the acts of waging war have overlapping features. However, the degree of animus or intent and the magnitude of the acts done or attempted to be done would assume some relevance in order to consider whether the terrorist acts give rise to a state of war. Yet, the demarcating line is by no means clear, much less transparent. It is often a difference in degree. The distinction gets thinner if a comparison is made of terrorist acts with the acts aimed at overawing the Government by means of criminal force. Conspiracy to commit the latter offence is covered by Section 121-A. (para. 278).
279. It needs to be noticed that even in the international law sphere, there is no standard definition of war. Prof. L. Oppenheim in his well-known treatise on international law has given a definition marked by brevity and choice of words. The learned author said: “War is a contention between two or more States through their armed forces, for the purpose of overpowering each other and imposing such conditions of peace as the victor pleases.” Yoram Dinstein, an expert in international law field analysed the said definition in the following words:
There are four major constituent elements in Oppenheim’s view of war: (i) there has to be a contention between at least two States, (ii) the use of the armed forces of those States is required, (iii) the purpose must be overpowering the enemy (as well as the imposition of peace on the victor’s terms); and it may be implied, particularly from the words ‘each other’, and (iv) both parties are expected to have symmetrical, although diametrically opposed, goals.
The learned author commented that Oppenheim was entirely right in excluding civil wars from his definition. Mr. Dinstein attempted the definition of “war” in the following terms:
War is a hostile interaction between two or more States, either in a technical or in a material sense. War in the technical sense is a formal status produced by a declaration of war. War in the material sense is generated by actual use of armed force, which must be comprehensive on the part of at least one party to the conflict.
280. In international law, we have the allied concepts of undeclared war, limited war, warlike situation – the nuances of which it is not necessary to unravel.
Vijay Madanlal Choudhary and Ors. v. Union of India (UOI) and Ors. MANU/SC/0924/2022
This case was about the validity and interpretation of certain provisions of the Prevention of Money Laundering Act (2002) (PMLA) and the procedure followed by the Enforcement Directorate while inquiring into/investigating offences under the PMLA, being violative of the constitutional mandate. One of the issues raised in the case was the application of international law while interpreting domestic law.
The Union of India had argued that “the domestic Courts are under an obligation to give due regard to the international Conventions for construing domestic laws”. Reliance was placed before the People’s Union for Civil Liberties v. Union of India and Anr. (2005) 2 SCC 436 and Githa Hariharan and Anr. v. Reserve Bank of India and Anr. (1999) 2 SCC 228 to submit that the international treaties or conventions may be relied on by the domestic courts so as to give effect to international law, if such law is not inconsistent with any domestic law.
The Union of India relied on various international conventions or treaties and argued that it is the State’s international obligation to not only recognize the crime of money-laundering but also to take steps to prevent the same. The Government noted that the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (1988), to which India is a party, imposed an obligation on India to criminalize offences related to drug trafficking and money-laundering. Further, the United Nations Convention against Transnational Organized Crime 2000 was delineated to ensure that participating countries should have appropriate legislation to prevent money-laundering and obligated the participating nations to utilize relevant international anti-money laundering initiatives in establishing their domestic regulatory and supervisory regimes. Furthermore, the United Nations Convention Against Corruption (2003) mandated the participating States to conduct enhanced scrutiny of accounts sought or maintained by politically exposed persons and their associates and to implement measures to monitor the movement of cash and other instruments across their borders so that a ‘paper trail’ be created which could assist law enforcement authorities in investigating the transfers of illicit assets.
The Union of India also highlighted the role played by the Financial Action Task Force (FATF) in combating the menace of money-laundering, and stated its process of reviewing compliance with its recommendations by every State and the consequences of non-compliance. It was further submitted that upon evaluation, a country will be placed immediately into enhanced follow-up if it does not comply with the FATF technical and “big six” recommendations or has a low effectiveness outcome. The jurisdictions under monitoring then, based on their commitments and compliances, are put in two types of lists viz., grey list and black list, which serve as a signal to the global financial and banking system about heightened risks in transactions with the country in question which not only severely affect its international reputation but also impose economic challenges, such as impacting the bond/credit market of the country, impacting the banking and financial sector of the country, affecting cross-border capital flows, especially for the trade sector, documentary requirements for export and import payments, such as letters of credit may become more challenging to fulfil, potentially raising costs and hampering business for companies engaged in trade, adversely affecting the economy due to a lack of investment opportunities which may further deteriorate the financial health of the country and the country may also be deemed as a ‘high-risk country’.
The Supreme Court further observed in Pratap Singh v. State of Jharkhand and Anr. (2005) 3 SCC 551, that the international treaties, covenants and conventions although may not be a part of municipal law, the same be referred to and followed by the Courts having regard to the fact that India is a party to the said treaties. The Court went on to observe that the Constitution of India and other statutes have been read consistently with the rules of international law. It is also observed that the Constitution of India and the enactments made by Parliament must necessarily be understood in the context of the present-day scenario and having regard to the international treaties and conventions as our constitution takes note of the institutions of the world community which had been created. In Apparel Export Promotion Council v. A.K. Chopra (1999) 1 SCC 759, the Court observed that domestic courts are under an obligation to give due regard to the international conventions and norms for construing the domestic laws, more so, when there is no inconsistency between them and there is a void in domestic law. This view has been restated in Githa Hariharan and People’s Union for Civil Liberties, and National Legal Services Authority v. Union of India and Ors. (2014) 5 SCC 438 (para 38).
Making & Concluding Treaties
Treaties
Treaties Signed by India during the Year 2022
During the year 2022, some of the important international agreements signed by India are the following:
• Investment Incentive Agreement between USA and Republic of India, May 2022;
• Agreement between the Government of the Republic of India and the Government of the Republic of Senegal on Exemption from Visa Requirement for Holders of Diplomatic and Official/Service Passports – 1 June 2022;
• Agreement on Mutual Legal Assistance in Civil and Commercial Matters Between the Government of the Republic of India and the Government of the Islamic Republic of Iran, June 2022;
• Agreement between India and Solomon Islands on the Exemption From Visa Requirements for Holders of Diplomatic and Official Passports, June 2022;
• Specific Cooperation Agreement between the Mexican Space Agency of the United Mexican States and the Indian Space Research Organisation, Department of Space of the Republic of India on Crop Monitoring, Drought Assessment and Capacity Building, June 2022;
• Agreement Entered into by and between the Government of the Republic of Namibia through the Ministry of Environment, Forestry and Tourism and the Government of the Republic of India through the Ministry of Environment, Forest and Climate Change on Wildlife Conservation and Sustainable Biodiversity Utilization, 20 July 2022;
• Agreement between Government of the Republic of Namibia and the Government of the Republic of India on Authorising Spouses and Dependants of Members of the Diplomatic Mission or Consular Post to Engage in Gainful Employment, 20 July 2022;
• Agreement between the Government of the Republic of India and the Government of the Republic of Djibouti on Exemption from Visa Requirement for Holders of Diplomatic & Official/Service Passports, 22 September 2022; and
• Agreement between the Government of the Republic of India and the Government of the Federal Republic of Germany on a Comprehensive Migration and Mobility Partnership, 5 December 2022.
In addition, India has entered into Memorandums of Understanding (MoU) with several countries on various subjects which are available online. (Treaty/Agreement, Ministry of External Affairs, https://www.mea.gov.in/TreatyList.htm?1).
Interpretation of Treaties
Union of India v. Sk. Istiyaq Ahmed (2022) SC 13 SCC 380
This case involved an interpretation of Sections 12 and 13(5) of the Repatriation of Prisoners Act (2003) and Article 8 of the Transfer of Sentenced Prisoners Agreement dated 24 April 2005 entered between India and Mauritius.
The respondent was convicted in Mauritius for possessing 152.8 grams of heroin and was sentenced to a 26-year imprisonment term. Upon transfer to India as per the Repatriation of Prisoners Act (2003) on 4 March 2016, the respondent sought a reduction in his sentence. In particular, he invoked Section 21(b) of the Narcotics Drugs and Psychotropic Substances Act, (1994) (NDPS Act), advocating for a scaled-down term to 10 years. In the same representation, the Respondent also requested a reconsideration of the location for serving his sentence.
The mitigation of the sentence from 26 years to 10 years as per Section 21(b) of the NDPS Act was rejected by the Central Government on the ground that it would amount to a reduction of the sentence by 16 years which would not be in consonance with Section 13 (6) of the 2003 Act and Article 8 of the Agreement.
On a combined reading of Sections 12 and 13 of the 2003 Act and Article 8 of the Agreement, the following principles can be deduced:
• Any request for the transfer of a prisoner from a contracting State to India shall be subject to the terms and conditions as stated in the agreement between a contracting State and the Government of India.
• The duration of imprisonment shall be in accordance with the terms and conditions referred to in Section 12(1) of the 2003 Act, meaning thereby that the acceptance of the transfer of a prisoner shall be subject to the terms and conditions in the agreement between the two countries with respect to the transfer of prisoners. To make it further clear, the sentence imposed by the transferring State shall be binding on the receiving State, i.e. India.
• On the acceptance of the request for transfer of an Indian prisoner convicted and sentenced in a contracting State, a warrant shall be issued for the detention of the prisoner in accordance with the provisions of Section 13 of the 2003 Act in the form prescribed.
• The warrant which is to be issued has to provide for the nature and duration of imprisonment in accordance with the terms and conditions as mentioned in Section 12(1) of the Act, that is, as agreed between the two contracting States.
• The imprisonment of the transferred prisoner shall be in accordance with the warrant.
• The Government is empowered to adapt the sentence to that provided for a similar offence had that offence been committed in India. This can be done only in a situation where the Government is satisfied that the sentence of imprisonment is incompatible with Indian law as to its nature, duration or both.
• In the event that the Government is considering a request for adaptation, it has to make sure that the adapted sentence corresponds to the sentence imposed by the contracting State, as far as possible. (Paras 16 to 20)
The Supreme Court held that the sentence imposed by the Supreme Court of Mauritius, in this case, is binding on India. A warrant of detention was issued in which it was specified that the respondent has to undergo a sentence of 26 years. As per Section 13(4), the sentence shall be 26 years.
Regional Cooperation Initiatives (non-treaty)
International Relations & Co-operation
5th Bay of Bengal Initiative for Multi-Sectoral Technical and Economic Cooperation (BIMSTEC) Summit, Sri Lanka (30 March 2022)
The BIMSTEC is a regional organisation comprising of seven Member States: five from South Asia (Bangladesh, Bhutan, India, Nepal, Sri Lanka) and two from Southeast Asia (Myanmar and Thailand). According to the BIMSTEC Charter, the members are expected to meet once in every two years. In line with the development of the organisation into a formal structure, the leaders of the member-countries have agreed to divide the working of the grouping into seven segments, with India leading the security pillar.
• Master Plan for Transport Connectivity: The Summit saw the declaration of the Master Plan for Transport Connectivity that would provide a framework for regional and domestic connectivity.
• A Memorandum of Association (MoA) on the establishment of BIMSTEC Technology Transfer Facility (TTF) in Colombo, Sri Lanka.
• India will provide the (BIMSTEC) secretariat 1 million US dollars to increase its operational budget.
Indo-Pacific Economic Framework for Prosperity (IPEF)
IPEF was launched jointly by the USA and other partner countries of the Indo-Pacific region on 23 May 2022 in Tokyo. IPEF has 14 partner countries, that is, Australia, Brunei, Fiji, India, Indonesia, Japan, Republic of Korea, Malaysia, New Zealand, Philippines, Singapore, Thailand, Vietnam and USA. It seeks to strengthen economic engagement among partner countries with the goal of advancing growth, peace and prosperity in the region. The framework is structured around four pillars relating to Trade (Pillar I); Supply Chains (Pillar II); Clean Economy (Pillar III); and Fair Economy (Pillar IV). India had joined Pillars II to IV of IPEF while it has an observer status in Pillar-I.
International and Regional Dispute Resolution Mechanisms
Settlement of Disputes
India – Measures Concerning Sugar and Sugarcane, Complaint by Brazil, Australia and Guatemala (WTO DS579, DS580, DS581)
In 2022, India notified the Dispute Settlement Body of its decision to appeal the panel reports in the cases brought by Brazil, Australia and Guatemala. The panel reports were circulated to WTO members on 14 December 2021. The appeal was circulated to WTO members on 11 January 2022. This dispute concerns India’s domestic support to sugarcane producers and export subsidies for sugar.
International and Regional Trade Treaties and Bodies
International Economic Law
Investment Incentive Agreement between USA and Republic of India, May 2022
India and the United States signed the Investment Incentive Agreement (IIA) in Tokyo, Japan in 2022 which supersedes the Investment Incentive Agreement of 1997. The IIA was signed to keep pace with the additional investment support programmes offered by the DFC (a US development finance agency, the successor of Overseas Private Investment Corporation (OPIC) after the enactment of the BUILD Act, 2018 by the US) such as debt, equity investment, investment guaranty, investment insurance or reinsurance, feasibility studies for potential projects and grants. The Agreement is the legal requirement for DFC to continue providing investment support in India. (Ministry of Finance Press Release, May 2022, https://www.pib.gov.in/PressReleasePage.aspx?PRID=1827650).
Comprehensive Economic Partnership Agreement (CEPA) between India and the United Arab Emirates (UAE)
The India-UAE CEPA was signed between the two nations on 18 February 2022 and came into force on 1 May 2022. The CEPA includes a total of 11 service sectors and over 100 sub-sectors. The CEPA creates a free trade area in conformity with the Decision of 28 November 1979 on Differential and More Favourable Treatment, Reciprocity and Fuller Participation of Developing Countries (Enabling Clause) and Article V of the General Agreement on Trade in Services (GATS) part of the WTO Agreement. CEPA enables both countries by providing immediate and progressive duty reductions on imported goods and transparency in customs procedures for preferential treatment of imported goods.
Intellectual Property Rights
In 2021, the Delhi High Court established the Intellectual Property Division (IP Division), the first in India. The IPD is the division in the Delhi High Court presided over by Single Judges to deal with disputes and cases exclusively concerning IPR subject matters. This was necessitated because of the dissolution of the Intellectual Property Appellate Board (IPAB), which served as the sole appellate authority against the decisions of various Intellectual Property (IP) offices and also had powers to revoke IPR s and keep a check on the creation and existence of frivolous IPR s.
On 24 February 2022, the Delhi High Court adopted the Delhi High Court Intellectual Property Rights Division Rules (2022) and the High Court of Delhi Rules Governing Patent Suits (2022). IPD Rules will regulate the matters listed before IPD and prescribe the practice and procedure for the exercise of the original and appellate jurisdiction of the IP Division and other miscellaneous petitions arising out of specific IP statutes. It will also cover IPR lawsuits, revocation and cancellation requests, new legal actions, appeals, and petitions from various IP offices.
Role of International Law in Addressing Environmental Issues
International Environmental Law
Ex post facto Environmental Clearance – Pahwa Plastics (P) Ltd. v. Dastak NGO, 2022 SCC OnLine SC 362
The Supreme Court of India followed its practice of emphasizing the link between international environmental law and domestic environmental law. It has underlined the causal connection between the United Nations Conference on the Human Environment held in Stockholm in 1972 and two important environmental statutes in India, i.e., the Air (Prevention and Control of Pollution) Act (1981) and the Environment (Protection) Act (1986).
Moreover, the Supreme Court legitimised the policy of ex post facto environmental clearance. It held:
Ex post facto environmental clearance should not be granted routinely, but in exceptional circumstances taking into account all relevant environmental factors. Where the adverse consequences of denial of ex post facto approval outweigh the consequences of regularization of operations by grant of ex post facto approval, and the establishment concerned otherwise conforms to the requisite pollution norms, ex post facto approval should be given in accordance with law, in strict conformity with the applicable Rules, Regulations and/or Notifications [Para 63].
Environmental Impact Assessment & Other Environmental Principles
Precautionary Principle – Pragnesh Shah v. Arun Kumar Sharma, (2022) 11 SCC 493
The Supreme Court of India, while discussing the role of the Precautionary Principle, recognised Principle 15 of the Rio Declaration on Environment and Development (1992) as the ‘clearest elaboration’ of the Principle (Para 29).
Sustainable Development – Narinder Singh v. Divesh Bhutani, 2022 SCC OnLine SC 899
The Supreme Court of India elaborated on the meaning of Sustainable Development in the context of the Declaration on the Right to Development (1986). The Court, by referring to a previous decision, held that ‘… sustainable development is indeed a principle of development … The primary requirement underlying this principle is to ensure that every development work is sustainable …’ The Court went on to observe that the right to development is intrinsically connected to the right to environment and underlines that there is ‘immense interdependence’ between the two [Para 25].
Principle of Non-regression – Heilgers Chem (P) Ltd. v. U.P. Pollution Control Board, 2022 SCC OnLine NGT 278
The National Green Tribunal recognised the principle of non-regression as part of International Environmental Law and recognised its application in India. It explained the principle as an obligation on states ‘… not to pursue action which has a net effect of diminishing the legal protection of the environment or access to environmental justice’ [Para 158].
Protection under International and Domestic Law
Human Rights
Right to Sanitation – National Highway Projects v. State of Bihar, 2022 SCC OnLine Pat 1048
The Patna High Court extensively referred to international instruments relating to the right to sanitation to establish the existence of sanitation as a fundamental right and the consequent obligations of the State. The Court observed that the International Covenant on Economic, Social and Cultural Rights (1966) to which India is a state party recognises implicitly the right to sanitation. To support it further, the Court referred to other important soft law instruments as follows: the UN General Assembly Resolution on Human Right to Water and Sanitation (64/292, 28 July 2010); Statement on the Right to Sanitation (2010) and General Comment 15 – The Right to Water (2002) by the UN Committee on Economic, Social and Cultural Rights; and the Human Rights Council Resolution on Human Rights and Access to Safe Drinking Water and Sanitation (2010).
The Court further relied on the definition of sanitation proposed by the Independent Expert on Water and Sanitation in order to elaborate the obligation of the State to ensure that ‘… all and without discrimination have physical and affordable access to sanitation, in all spheres of life, which is safe, hygienic, secure, socially and culturally acceptable, provides privacy and ensures dignity’. The Court made a more explicit statement on the obligation of the State and held that ‘the State has also upon its obligations imposed by International law-various Human Rights Instruments and Resolutions-to ensure that the basic right of sanitation is available to all, irrespective of any differences in social or economic status’ [Para 65].
Right to Health – Karukola Simhachalam v. Union of India, (2022) 1 HCC (AP) 1
The High Court of Andhra Pradesh relied on Articles 9 and 12 of the International Covenant on Economic, Social and Cultural Rights (1966) (ICESCR) to establish the existence of the right to health. It further referred to other key instruments of International Human Rights Law such as the Universal Declaration of Human Right (1948); the Convention on the Elimination of all Forms of Discrimination Against Women (1979); and the United Nations Convention on the Rights of the Child (1989).
The Court further elaborated on the normative contents of the right to health as enshrined in the ICESCR and observed that:
Article 12 of the International Covenant on Economic, Social and Cultural Rights states that the right to health is not to be understood as a right to be healthy. The right to health contains both freedoms and entitlements. The freedoms include the right to control one’s health and body, including sexual reproductive freedom, and the right to be free from interference, such as the right to be free from torture, non-consensual medical treatment and experimentation. By contrast, the entitlements include the right to a system of health, protection which provides equality of opportunity for people to enjoy the highest attainable level of health [Para 69].
The Court explained the different kinds of duties of the State by directly drawing from International Human Rights Law. Accordingly, the State was held to have obligated to respect, protect and fulfil the right to health in a progressive manner. It was held that:
The right to health, like all human rights, imposes three types or levels of obligations on States parties: the obligations to respect protect and fulfil. In turn, the obligation to fulfil obligations to facilitate, provide and promote. The obligation to respect requires States to refrain from interfering directly or indirectly with the enjoyment of the right to health. The obligation to protect requires States to take measures that prevent third parties from interfering with article 12 guarantees. Finally, the obligation to fulfil requires States to adopt appropriate legislative, administrative, budgetary, judicial, promotional and other measures towards the full realization of the right to health [Para 86].
The Court, thus, concluded that:
it is the duty of the State to provide adequate medical care and failure to provide such adequate medical care amounts to a violation of the fundamental right to life guaranteed under Article 21 of the Constitution of India, so also human right recognized by various Courts and several international covenants … [Para 121].
Women’s Rights – Maternity Leave Deepika Singh v. Central Administrative Tribunal, 2022 SCC OnLine SC 1088
The Supreme Court of India addressed the question of maternity leave and child care leave in light of Article 11 of the Convention on the Elimination of all Forms of Discrimination Against Women (1979) (CEDAW). While addressing the question of whether a woman can be declined maternity leave under the Central Services (Leave Rules) (1972) with respect to her biological child on the ground that her spouse has two children from his earlier marriage, the Court referred to Article 11(2)(b) of CEDAW and held that:
In alignment with the Constitution as well as the treaties mentioned above, Rule 43(1) of the Rules of 1972 contemplates the grant of maternity leave for a period of 180 days. Independent of the grant of maternity leave, a woman is also entitled to the grant of child care leave for taking care of her two eldest surviving children whether for rearing or for looking after any of their needs, such as education, sickness and the like [Para 23].
Women’s Rights – Right to Abortion – X v. Health & Family Welfare Department, 2022 SCC OnLine SC 1321
While interpreting the law regulating medical termination of pregnancy against discriminating women on the basis of marital status, the Supreme Court relied on various provisions of the Convention on the Elimination of all Forms of Discrimination Against Women (1979) and interpreted domestic law provisions to give effect to India’s international legal obligations. The Court held:
India’s obligations under international law require the state to bring the MTP Act (Medical Termination of Pregnancy Act (1971)) in conformity with said obligations. The reproductive rights of women must be harmonised in light of the principles laid down under the Constitution as well as the principles of international law codified in the various international conventions ratified by India. Our interpretation of the MTP Act and the MTP Rules furthers India’s obligations under international law [Para 131].
Women’s Rights – Rights of Transgender Persons – Matam Gangabhavani v. State of A.P., 2022 SCC OnLine AP 200
This case concerns a petition by a transgender person challenging a recruitment notification that gave only two options, that is, male and female. In this context, the High Court of Andhra Pradesh engaged with a discussion on rights of transgender persons and more broadly about the rights of LGBTQI+ persons. It further highlighted certain inadequacies in international law as far as rights of LGBTQI+ persons are concerned. Referring to various provisions in international human rights treaties, the Court observed that:
Albeit progressive, these obligations are also not broad enough to cover the systematic discrimination faced by transgender persons in access to justice, healthcare, employment, housing, travel, and education or offer comprehensive protection from gender-based violence, police abuse or physical and psychological torture. In 2017, the United Nations High Commissioner for Human Rights (OHCHR) released a statement insisting that LGBTQI+ persons are protected under the UN Charter, the Universal Declaration on Human Rights and did not require the creation of new specific obligations. Nevertheless, putting the fate of LGBTQI+ rights at the mercy of a notoriously inaccessible and slow treaty interpretation system denies sexual and gender minorities the unequivocal recognition of their rights and dignity. It consequently robs them of their voice in the international law-making process, being consistently dismissed with the question: but are LGBTQI rights human rights under international law [Para 50].
The Court further underlined India’s obligation under international law to protect the rights of transgender persons. At the same time, it pointed out the issue of non-realisation of their rights. The Court held that:
On analysis of the law, it is clear that various international and other regional conventions, including Yogyakarta Principles of 2007 & 2017, transgender rights are recognized by India along with other countries and expressed their willing to protect the rights of transgender, but it remains on paper and no progress had taken place. Therefore, it is the duty of the State to protect the rights of transgenders under the international covenants [Para 52].
State Compensation for Illegal Detention – Anilkumar A.B. v. State of Kerala, 2022 SCC OnLine Ker 1830
In this case, the High Court of Kerala clarified the legal position in India on state compensation for violation of human rights. While dealing with a case on illegal detention, it was clarified that ‘Article 9(5) of the International Covenant on Civil and Political Rights (1966) states that, “Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.” Though, our country has not endorsed the above Covenant, the apex court has approved the above right in a catena of decisions’ [Para 17].
Child Rights – Right to Privacy – Gangadhar Narayan Nayak v. State of Karnataka, 2022 SCC OnLine SC 337
The protection of the identity of child victims of sexual abuse is a legal guarantee. While dealing with a case in which a newspaper revealed the identity of a child victim of sexual abuse, the Supreme Court of India held that the disclosure of the identity of a child who is a victim of sexual offences or who is in conflict with the law amounts to violation of the right of the child to dignity and the right not to be embarrassed. The Court explicitly referred to Article 16 of the United Nations Convention of the Rights of the Child (1989) that guarantees protection from arbitrary and unlawful interference with the privacy of the child. The Court re-emphasised the fact that the Juvenile Justice (Care and Protection of Children) Act (2015) and the Protection of Children from Sexual Offences Act (2012) are in furtherance of India’s obligations under the Convention of the Rights of the Child, 1989.
Right to Nationality – Chaitanya S. Nair v. Union of India, 2022 SCC OnLine Ker 1177
In this case concerning the question of nationality of a minor whose mother was not an Indian citizen, the High Court of Kerala relied on the right to nationality under International Human Rights Law and underlined the obligation of India emanating from the Convention of the Rights of the Child, 1989 to ensure that no child is rendered stateless. The Court said:
It is apposite to mention that the right to nationality of every individual is protected under Article 15 of the Universal Declaration of Human Rights. International treaties like the Convention on the Rights of the Child have also included stipulations regarding the right to nationality of children. The right of every child to acquire a nationality is guaranteed under Article 7 of the Convention, which obliges every party State to implement this right and under Article 8 to protect and preserve the nationality of every child. India, as a party State to the Convention on the Rights of the Child and following its ratification in December 1992 has an obligation that no child is left stateless [Para 23].
Acknowledgements
The authors wish to acknowledge the research support provided by Tavishi Singh and Jeevan Justin.