dualism
Dualism holds that international law governs relations between states while municipal law governs individuals within a state; neither is automatically part of the other. Monism, by contrast, treats both as parts of one legal order. For a dualist state, a treaty becomes enforceable in domestic courts only when transformed by legislation.
India broadly follows dualism: the Union has power to make laws to implement treaties (Article 253), and treaties do not of themselves override statutes. Yet Indian courts read domestic law consistently with international obligations where there is no conflict (Jolly George Verghese) and, in Vishaka, used CEDAW to frame guidelines in the absence of a law. Customary international law not inconsistent with domestic law is treated as part of Indian law.
Example
Under dualism, the ICCPR could not override s.51 CPC, but in Jolly George Verghese the court read the section in harmony with it.
In Indian law
- Article 253, Constitution of India
- Jolly George Verghese v. Bank of Cochin, 1980 INSC 19
- Vishaka v. State of Rajasthan, 1997 INSC 604
See also
Read more in the study notes
- Growth, development and the features of the Indian economy (Economic Development in India)
- Rights of minorities: Articles 29 and 30 (Indian Constitutional Law - New Challenges)
- International business environment: macro-environmental factors and the trading environment (International Business)
- Law and public opinion (Judicial and Legislative Process)
- Modernisation, agrarian reform and sustainable development (Law and Social Transformation in India)
- Critical legal studies, feminist jurisprudence and critical race theory (Legal Theory)