Can International Human Rights Treaties Create Enforceable Rights In India Without Domestic Legislation? A Doctrinal Re- Examination
- IJLLR Journal
- Jan 17
- 2 min read
Akhilesh Kakade, Legal Associate, Great Mission Group Consultancy, Pune
ABSTRACT
The paper argues that while the international human rights treaties are normatively influential, they do not in India independently create enforceable rights in India without the process of legislative incorporation. Against the background of (formally) dualist constitutional structure of India, it argues that Articles 51(c) and 253 affirm the primacy of Parliament as the vital organ of law making in converting treaty obligations into justiciable municipal rights, hence there cannot be any self-executing status of treaties under domestic legal order. At the same time, the paper shows how the Supreme Court has evolved a unique hybrid practice in which unincorporated human rights treaties are used as resources in the interpretation process in order to elaborate the content of basic rights, in order to coordinate statutory interpretation with international standards, and in exceptional cases, such as Vishaka, to fill legislative silences in cases involving fundamental constitutional guarantees. Through close analysis of leading decisions, the paper draws distinctions between indirect constitutional influence and direct enforceability and argues that judicial reliance on treaties remains doctrinally mediated by constitutional text, separation of powers and parliamentary supremacy. It takes further the academic critiques of the dangers of unprincipled treaty-based reasoning that can confuse the boundaries between adjudication and legislation and the signs of emerging judicial caution favoring a more limited and text-focused use of international norms. A comparative study of the United Kingdom's Human Rights Act 1998 strengthens the argument that the best means of ensuring effective and validable enforceability of treaty-based rights is explicit legislative incorporation of the rights instead of their implication from a decision of the courts. The paper in the end suggests that India's way is not to turn away from dualism; but to complete and perfect the details of this hybrid model by having clearer legislative frameworks and more transparent judicial doctrines on treaty-referential adjudication which ensures that international human rights treaties will influence the meaning of the Constitution, but will not become autonomous source of enforceable rights.
Keywords: International human rights treaties, Enforceability, Dualism, Fundamental rights, Judicial interpretation
