THE USE OF INTERNATIONAL LAW IN CONSTITUTIONAL INTERPRETATION IN THE SUPREME COURT OF INDIA.

• Author: Gautam, Khagesh

1. 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." (14)

   The petitioners, refugees registered under the United Nations High Commission of Refugees, (15) argue that the deportation of the Rohingya refugees by the Indian government violates the principle of non-refoulement, which they assert is a principle of customary international law. (16) The Indian government, petitioners assert, is bound by the principle of non-refoulement since the Equality Clause, the Life and Liberty Clause, and Article 51 (c) of the Indian Constitution "obligate[] India to respect international law." (17) As a matter of law, the petitioners categorically assert, "The principle of non-refoulement--or not sending back refugees to a place where they face danger--is considered [a] part of customary international law and binding on all states whether they have signed the [1951 United Nations Convention on Status of Refugees] (18) or not." (19) Article 33(1) of the 1951 United Nations Convention on Status of Refugees (the "1951 Refugee Convention"), its "central normative and operational core," (20) enacts the principle of non-refoulement as a part of international treaty law. (21) As a matter of fact, the petitioners assert that they are covered by the definition of a refugee as provided in Article 1A(2) of the 1951 Refugee Convention. (22) Even though the fact that India has not ratified the 1951 Refugee Convention is not contested by the petitioners, (23) their stand is that the principle of non-refoulement, being a principle of customary international law, binds India anyway. (24) They further argue that India's non-ratification of the 1951 Refugee Convention is not determinative of the issue since India has ratified the Universal Declaration of Human Rights ("UDHR"), (25) the International Covenant on Civil and Political Rights ("ICCPR"), and the International Convention on the Elimination of All Forms of Racial Discrimination ("ICEFRD"). (26) The reliance on ICCPR is however slightly surprising because the ICCPR does not provide "a right to seek and enjoy asylum... [it only provides] the right to leave any country and the right to enter one's own country." (27) In addition, they argue that India being a signatory to several other international conventions against use of torture, inhuman or degrading treatment, and prohibition of forced disappearances, for example, makes the fact of non-ratification of the 1951 Refugee Convention irrelevant as these international treaties and conventions that India has ratified or signed "explicitly or otherwise, lay down the Principle of Non-Refoulement." (28) The petition also relies on two High Court opinions where the principle of non-refoulement has been read into the Life and Liberty Clause of the Indian Constitution. (29) On these grounds, they argue that the right of non-refoulement must be read into the Equality Clause and the Life and Liberty Clause of the Indian Constitution.

   The Indian government seems to be defending the case on three grounds: (i) a traditional separation of powers argument; (ii) on the specific facts; and (iii) by questioning the binding nature of the 1951 Refugee Convention and its subsequent 1967 Protocol Relating to the Status of Refugees (the "1967 Protocol"). On the first ground, the government is claiming that the subject-matter of the writ-petitions is "essentially a core executive function in the realm of policy making for the country, namely with respect to dealing with illegal immigrants." (30) This defense goes more to the maintainability of the petition rather than the merits of the claim based on international law presented by the petitioners. (31) On the second ground, the government argues that it has intelligence that indicates that several of the illegal Rohingya immigrants have connections with "Pakistan-based and other terror organisations and similar organisations operating in other countries." (32) The government categorically claims that several Rohingya immigrants have been able to fraudulently secure identity papers in India and that it has "also found that some of the Rohingyas figure in the suspected sinister designs of ISI/ISIS and other extremist groups who want to achieve their ulterior motives in India including that of flaring up communal and sectarian violence in sensitive areas of the country." (33) This defense goes more to the facts of the case rather than the question with which this article engages. These two grounds have been restated more or less in the same form while responding to some intervention briefs. (34)

   On the third ground, particularly pertinent to this article, the government states:

   India is not a signatory to the [1951 Refugee Convention] and the [1967 Protocol] issued thereunder. The [1951 Refugee Convention and the 1967 Protocol] are therefore not binding upon India and no other Declaration/Resolution/Convention/international treaty or instrument of any kind is in force which prohibits India, as a sovereign nation, to exercise its right of deporting illegal immigrants in accordance with laws of India and thereby protecting the fundamental rights of its own citizens more particularly in the interest of national security. (35) The government's broad stand before the Court (both in the main and the supplemental response brief) is that the entire gamut of international law relied upon by the petitioners does not bind the Indian government with the principle of non-refoulement. (36) The logical conclusion thereof is that key fundamental rights provisions of the Indian Constitution (such as the Equality Clause or the Life and Liberty Clause) cannot be interpreted so as to include within their scope the principle of non-refoulement. With respect to the 1951 Refugee Convention, the government's categorical claim is that it "does not confer any legally enforceable rights either upon the petitioners or anyone else which can justify prayers for issuance of a writ of this Hon'ble Court under Article 32 of the Constitution of India." (37) To the extent that the key question that this article engages with is currently pending judicial consideration before the Supreme Court of India, this article also, but only consequentially, attempts to examine the position of the Indian government before the Supreme Court of India by asking the broader theoretical question stated at the beginning of this article. However, this...