Dualist on Paper, Monist in Practice: India's Treaty-Reception Problem

India is a dualist state in the way Britain is a constitutional monarchy: by description, by convention, and only with steady effort by the institutions that are supposed to mean it. Article 51(c) of the Constitution commits India to fostering respect for international law as a Directive Principle.¹ The classical position — restated in Jolly Verghese v Bank of Cochin and Gramophone Co of India Ltd v Birendra Bahadur Pandey — is that international treaties become binding internally only when Parliament has transformed them by legislation.⁷ The Supreme Court has spent the last thirty years writing judgments that say one thing about this and do another. Vishaka v State of Rajasthan imported the CEDAW Convention into domestic law without an enabling statute.² Vellore Citizens' Welfare Forum declared the precautionary principle to be customary international law and therefore part of Indian environmental law, without canvassing state practice or opinio juris.³ The two judgments are among the most progressive constitutional decisions India has produced. They are also exhibits in a problem the legal academy has not yet named: India says it is dualist and behaves, in the cases where it matters most, as if it were monist.

What the text actually says

The dualist commitment in the Indian Constitution is textually clear but structurally weak. Article 51(c) directs the State to 'endeavour to foster respect for international law and treaty obligations.' The verb is 'endeavour.' The provision sits in Part IV, which Article 37 expressly removes from the field of judicial enforcement. Article 253 gives Parliament the power to legislate for the implementation of any treaty, agreement or convention. Article 73, read with Article 246 and the Union List entries on foreign affairs, treaty-making, and diplomatic intercourse, places the treaty-making power in the executive. The architecture is dualist: the executive concludes treaties, Parliament implements them, courts enforce implementing legislation. International obligations do not become internal law of their own force.

The Supreme Court has, in cases where the issue is squarely posed, restated this architecture without qualification. Maganbhai Ishwarbhai Patel v Union of India held that treaty obligations are 'not by their own force binding upon Indian nationals or others' and that legislation is necessary 'when the treaty or agreement operates to restrict the rights of citizens or others or modifies the laws of the State.'⁸ Jolly Verghese v Bank of Cochin said the same thing in starker form: international conventional law must undergo transformation into municipal law before it can become internal law, and 'from a national point of view the national rules alone count.'⁷ Gramophone Co of India Ltd v Birendra Bahadur Pandey furnished the conflict rule: 'National Courts will endorse international law but not if it conflicts with national law.'⁶ Even ADM Jabalpur v Shivakant Shukla, a decision few citizens of the Republic remember fondly, supplied the same proposition in its conflict-rule formulation.¹¹

This is the formal position. It is the position the Court takes when an advocate stands up and frames the question as one of treaty reception. It is not the position the Court takes when international law is being used to dispense what the Court considers justice in a particular case.

What the Court actually does

The case-law on judicial reception of international norms moves in three distinct registers, and the registers do not communicate with each other.

The first is interpretative. Where a treaty has been incorporated by statute, courts read the statute in harmony with the treaty. Where domestic legislation is ambiguous, the courts presume Parliament did not intend to legislate in breach of India's international obligations. This is uncontroversial. It is also what the United Kingdom does, what Canada does, what Australia does. It is what dualist states do.

The second is gap-filling. Where Indian law is silent on an issue and an international treaty addresses it, the courts have begun to give effect to the treaty. People's Union for Civil Liberties v Union of India (1997) — the telephone-tapping case — read Article 17 of the ICCPR and Article 12 of the Universal Declaration into Article 21 of the Constitution to create a right to privacy, in advance of any privacy statute. This is more aggressive than the interpretative register. It is the courts using unincorporated international norms as a working source of constitutional content.

The third is judicial legislation through the international-law route. Vishaka v State of Rajasthan is the canonical example. The Court framed the case as a sexual-harassment claim under Articles 14, 15, 19 and 21. India had ratified the Convention on the Elimination of All Forms of Discrimination Against Women, 1980 (CEDAW), with reservations; CEDAW had not been incorporated into domestic law. The Court invoked CEDAW, drafted a set of guidelines binding on every workplace in India, and declared them law under Article 141 — pending the eventual statute, which Parliament passed sixteen years later as the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013.

Vishaka is, in its outcome, a defensible piece of constitutional litigation. The harm was real and the legislative gap was real. What is intellectually difficult is its method. The Court derived the substantive content of the guidelines from an unincorporated treaty; declared the guidelines binding under a power (Article 141) that allows the Court to 'declare' law, not to make it; and located the source of its authority in Article 32. The 'declare law' clause has always been understood, since Upendra Baxi's writing on it in the 1980s, as a power to settle the law in cases coming before the Court — not to enact a regulatory regime that binds non-parties. Vishaka rests on the proposition that an unincorporated treaty, plus a fundamental-rights peg, plus the Court's writ jurisdiction, equals legislation. That equation is monist. It cannot be derived from the architecture of Article 51 read with Article 253.

The 'customary international law' workaround

The other route by which the Court has imported international norms — and the one that produces the deepest jurisprudential mess — is the treatment of certain norms as customary international law and therefore part of Indian common law under the residual operation of Article 372. The classical formulation is Lord Denning's in Trendtex Trading v Central Bank of Nigeria (1977): customary international law is automatically part of the common law, subject to inconsistent statute. The Indian Supreme Court, in Gramophone Co, adopted a similar position with the dualist caveat: comity of nations notwithstanding, if Parliament has said no, the national court cannot say yes.

The caveat has not, in practice, held. Vellore Citizens' Welfare Forum v Union of India (1996) is the watershed. The Court declared the precautionary principle and the polluter-pays principle to be customary international law, and therefore part of Indian environmental law, in a single passage that did not analyse state practice, did not analyse opinio juris, and did not engage the substantial scholarly literature questioning whether either principle had crystallised as custom. The Court reached its conclusion through soft-law instruments — the Rio Declaration, Agenda 21, the Brundtland Report — and then asserted that sustainable development had been 'accepted as a part of the customary international law.'³

Daniel Bodansky's 1995 essay on 'customary and not-so-customary' international environmental law is the necessary corrective.¹⁰ The phrase 'not-so-customary' refers precisely to norms that are widely invoked as customary in judicial reasoning without the underlying inquiry into state practice and opinio juris that the law of custom requires. The Indian Supreme Court is the worldwide leader in this practice. Vellore has been read, both inside India and outside, as authority that the precautionary principle is custom. The Canadian Supreme Court cited Vellore for this proposition in Spraytech v Hudson (Town). The Indian Court's confident assertion has bootstrapped its way into the literature on the precautionary principle's customary status.

The route from Vellore to National Legal Services Authority v Union of India (2014) is short. NALSA extended constitutional protection to transgender persons; in doing so it relied on the Yogyakarta principles, which the Court itself acknowledged to be non-binding soft law produced by a group of human-rights experts rather than by states.⁹ The Court declared that these principles must be 'recognised and followed.' The judgment is, again, defensible in outcome. The method makes a hash of any coherent doctrine of treaty reception. A norm produced by experts is treated as binding because the Court chooses to treat it that way. There is no dualist filter left.

The United Kingdom: how a dualist state stays dualist

The comparison with the United Kingdom is instructive precisely because the UK is also a dualist state and has had to confront the same pressure that produced Vishaka: a substantial body of international human-rights law that the legislature was slow to incorporate.

The British response was the Human Rights Act 1998. Section 3 of the Act directs courts to read primary and subordinate legislation, 'so far as it is possible to do so,' in a way that is compatible with Convention rights.⁴ Section 4 allows the higher courts to issue a declaration of incompatibility where compatible reading is not possible. The declaration does not strike down the legislation; it triggers a fast-track legislative process under section 10 if the government wishes to act on it. Parliamentary sovereignty is preserved on the face of the statute.

The HRA does three structurally important things. First, it incorporates the European Convention on Human Rights into domestic law by an Act of Parliament. The reception is explicit, not interpretive. Second, it specifies the technique of incorporation — section 3 reading-down, section 4 declarations — rather than leaving the technique for the courts to invent. Third, it locates the residual decision-making power in Parliament rather than in the courts. A court that finds Parliament's statute incompatible with the Convention can say so; it cannot rewrite the statute.

The Indian approach to international human-rights reception has none of these structural features. There is no incorporating Act. There is no specified technique. There is no residual locus of legislative authority — the Supreme Court, having read the international norm into a fundamental-rights provision, is the only forum that can later reverse the reading. The British approach is the dualist position taken seriously. The Indian approach is the dualist position recited at the start of a judgment that then proceeds monist.

South Africa: an explicit interpretive duty

The South African Constitution of 1996 takes a different route to the same destination. Section 39(1) directs that when interpreting the Bill of Rights, a court 'must consider international law' and 'may consider foreign law.'⁵ Section 232 then provides that 'customary international law is law in the Republic unless it is inconsistent with the Constitution or an Act of Parliament.' Section 231 deals with treaty-making — the executive concludes, Parliament approves; an international agreement becomes law in the Republic 'when it is enacted into law by national legislation,' with a narrow exception for self-executing provisions of agreements approved by Parliament.

The South African scheme is what a serious legal-academic answer to the Indian problem would look like. It does three things at once. It commits the courts to international law as an interpretive aid — a duty, not a discretion. It treats customary international law as directly part of South African law, subject to constitutional and statutory override. And it specifies the conditions under which treaties take direct effect: parliamentary approval plus the self-executing character of the provision. The Constitutional Court applies these provisions visibly. S v Makwanyane, the abolition-of-death-penalty decision, walks through the customary-international-law question explicitly. The Constitutional Court does not declare a norm to be custom; it argues for the proposition with the materials.

The architectural lesson from both the UK and South Africa is that a dualist state can constitutionally honour international law without abandoning the dualist position. The route is either explicit incorporation through an Act of Parliament (the British model) or a specified constitutional interpretive duty (the South African model). The Indian Supreme Court has chosen neither route. It has instead developed a third practice — invocation without incorporation, declaration without analysis — which produces favourable outcomes case by case at the cost of any coherent doctrine of reception.

The cost of the Indian practice

The Indian arrangement has four costs, and they accumulate.

The first is unpredictability. A litigant in 2026 facing a question on which the Indian legislature has not spoken cannot know in advance whether the Court will treat an international norm as binding. Vishaka treated CEDAW as binding; Suresh Kumar Koushal v Naz Foundation (2014) ignored the international human-rights material that the Delhi High Court had relied on. Vellore treated the precautionary principle as custom; Vellore's own caveat ('not contrary to municipal law') has been variously honoured and ignored in subsequent litigation. The same Court that built constitutional rights jurisprudence on the back of unincorporated treaties has also, in Gramophone Co, restated the orthodox dualist conflict rule. The doctrine has no settled face.

The second is democratic. Lavanya Rajamani's analysis of this terrain — in her chapter on international law and the constitutional schema — is direct: judicial incorporation of international norms expands the Court's discretion at the expense of Parliament. Article 253 vests the implementation of treaties in Parliament. The Court's Vishaka-style incorporation route bypasses Article 253. Each time the Court does this, the constitutional allocation of authority shifts a little further from the legislature to the bench. The shift is not necessarily wrong. It is, certainly, not what the constitutional text contemplates.

The third is methodological. The Indian Court's engagement with international law is, by international-law standards, sparse and confident. The Court asserts that a norm is custom; the analysis the law of custom requires — consistent state practice plus opinio juris over time — is rarely produced. The Court relies on soft-law instruments and characterises them as binding for the purposes of the case. International-law scholarship treats Indian judgments as data points for the propositions they assert; the actual reasoning behind the propositions is too thin to support precedential weight. India, which could be a significant participant in the formation and crystallisation of international norms, instead produces judgments that count for State practice only in a quantitative sense and contribute little to qualitative norm-creation.

The fourth is institutional. Each time the Court uses an unincorporated treaty as a working source of domestic law, the political incentive for Parliament to incorporate the treaty diminishes. CEDAW has been formally incorporated, in part, through the 2013 Sexual Harassment Act and through various statutes addressing maternity benefit and gender discrimination. The Convention on the Rights of the Child has been partly implemented through the Juvenile Justice Act. The Convention against Torture remains unsigned by India, in part because the Supreme Court's compensation-for-custodial-torture jurisprudence already does much of the work the Convention would do. The Court's judicial monism produces a substitute for legislative dualism, and the substitute removes the pressure that would otherwise force legislative action.

The Indian legal academy, in textbook treatments of the relationship between international and municipal law, often resorts to what Daniel O'Connell called the 'harmonisation' theory: neither legal system is supreme, and judges are to read each in light of the other to avoid conflict where possible. Starke calls this approach harmonious construction. The Indian Supreme Court has used the language in several judgments, including the Vellore caveat about norms 'not contrary to municipal law' and Chinnappa Reddy J's observation in Gramophone Co that comity of nations requires harmonious accommodation.

The harmonisation theory, however, only describes interpretive technique. It does not answer the prior question — what is the legal status of an international norm that no statute has incorporated and that the Court has not yet declared to be custom? A genuinely dualist system answers: that norm is not law internally. A genuinely monist system answers: that norm is automatically law internally, subject to constitutional and statutory override. The harmonisation theory says neither. It says judges should harmonise norms whose status is already settled. The Indian arrangement uses the harmonisation language to obscure the prior status question. The Court harmonises international and municipal law when convenient, but the question of which way the harmony resolves in a hard case is decided by the bench in front of it.

This is what makes the Indian position structurally different from the British. The UK uses the harmonisation language extensively — the Trendtex case is the classical authority — but the UK has also passed the Human Rights Act, the European Communities Act 1972 in its time, and a series of statutes that explicitly incorporate or refuse to incorporate particular treaties. The harmonisation work is done against the backdrop of explicit statutory direction. The Indian harmonisation work is done in a vacuum where the only statutory direction is Article 253, which the Court routinely treats as a permission rather than as the exclusive route to reception. The result is that 'harmonisation' in Indian usage often means: the Court has decided which side prevails, and the language of harmony is supplied afterwards to soften the choice.

The pattern across the case-law is consistent with this reading. Where the Court wishes to give effect to an international norm, it cites the harmonisation principle and presumes Parliament did not intend to legislate in breach of international obligations. Where the Court wishes to refuse effect, it cites the dualist conflict rule from Gramophone Co or ADM Jabalpur and notes that municipal law prevails. Both moves can be made on the same set of materials; the difference is in which way the Court is moving. The doctrine of reception is, in this sense, a rationalisation of decisions made on other grounds. That is a difficult position to defend as a settled rule of constitutional interpretation, and an even more difficult position to teach.

Where this leaves the doctrine

The honest description of where India sits in 2026 is that we have a dualist Constitution being administered by a Court that operates monist where it considers a case sufficiently important. This is not, by itself, a violation of any rule of constitutional interpretation. The Court has not formally departed from the transformation doctrine; it has worked around it in cases where the doctrine would otherwise have produced an outcome the Court found unacceptable. The path of Vishaka is the path of equity in equity's classical sense: the formal rule remains in place; the case is decided by a different route.

The cost of running a legal system this way is that the formal rule loses force as a guide to behaviour. An advocate representing a state agency cannot tell her client whether a particular international norm will or will not be applied; the answer depends on the bench, the framing, the relevance of fundamental rights, the political moment, and the Court's view of the relative strength of the international consensus. A treaty negotiator cannot tell a foreign counterpart whether India's commitment under a particular convention will become internally binding only on legislation or sooner. A lower-court judge cannot tell from the existing case-law whether a treaty cited by counsel is to be treated as persuasive, interpretive, or directly binding. The doctrine of treaty reception is supposed to answer these questions. The Indian doctrine, in practice, defers them to the next bench.

The comparative jurisdictions show what the alternatives look like. The British route — an explicit incorporating Act with a specified technique — preserves the dualist position by allowing Parliament to do the reception itself. The South African route — constitutional interpretive duties, with explicit rules for custom and for self-executing treaties — keeps the courts inside an articulated framework even as international law plays a substantial role. India has chosen neither route. The question that the doctrine has not yet answered, and that the Court will eventually have to answer, is whether we are a dualist state with a generous interpretive practice or a monist state in fact. The constitutional text says one thing and the most consequential constitutional judgments of the last three decades say another. The two cannot both be right.

What an honest reading of the Indian position would acknowledge is this. India's treaty-reception doctrine is neither fully dualist nor fully monist; it is dualist by default and monist by exception, with the exceptions controlled by the Supreme Court rather than by Parliament. The default does most of the work in the cases that do not reach the Supreme Court. The exceptions do most of the work in the cases that do. The result is a legal system in which the formal architecture of Article 51 read with Article 253 governs every part of the field except the part that everyone cares about. The Court's progressive use of unincorporated treaties has built much of modern Indian rights jurisprudence. It has also produced a doctrine of reception that cannot be written down in a single paragraph and could not be defended in front of an international-law class without a great deal of qualification. We can have either the rights or the doctrine. The next thirty years will show whether we can have both.

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