In the judgment in the case of Gramophone Company Of India Ltd. v. Birendra Bahadur Pandey & Ors. [AIR 1984 SC 667] delivered on February 21, 1984, a Bench of the Supreme Court comprising Justices Chinnappa Reddy, Venkataramiah and R B Misra discussed the relationship between municipal and international law in the following terms:

It has been said in England that there are two schools of thought, one school of thought propounding the doctrine of incorporation and the other, the doctrine of transformation.

According to the doctrine of incorporation, rules of international law are incorporated into the law of the land automatically and considered to be part of the law of the land unless in conflict with an Act of Parliament. Whenever the rules of international law changed, they would result in a change of the law of the land along with them, ‘without the aid of an Act of Parliament.

According to the doctrine of transformation, rules of International law are not part of the law of the land, unless already so by an Act of Parliament, judicial decision or long established custom. No such change would occur unless the principles of international law are ‘accepted and adopted by the domestic law’.

Lord Denning who had once accepted the transformation doctrine without question, later veered round to express a preference for the doctrine of incorporation and explained how courts were justified in applying modern rules of international law when old rules of international law changed. In fact, the doctrine of incorporation, it appears, was accepted in England long before Lord Denning did so.

Lord Denning himself referred to some old cases.

In addition to that, in West Rand Central Gold Mining Co. v. The King, the court said:

“It is quite true that whatever has received the common consent of civilized nations must have received the assent of our country, and that to which we have assented along with other nations in general may properly be called international law, and as such will be acknowledged and applied by our municipal tribunals when legitimate occasion arises for those tribunals to decide questions to which doctrines of international law may be relevant”.

Lauterpacht in International Law (General Works) refers to the position in Germany, France, Belgium and Switzerland and says it is the same. He quotes what a German Court said to meet an argument that the role of customary international law conflicted with Article 24 of the German Code of Civil Procedure. The court had said, “The legislature of the German Reich did not and could not intend any violation of generally recognised rules of international law, when enacting Article 24 of the German Code of Civil Procedure.”

Lauterpacht refers to another German case where the argument that ‘there ought not to be a direct recourse to the law of nations, except in so far as there has been formed a German customary law’ was rejected with the statement, “The contention of the Creditor that international law is applicable only in so far as it has been adopted by German Customary law, lacks foundation in law. Such a legal maxim would, moreover, if generally applied, lead to the untenable result that in the intercourse of nations with one another, there would obtain not a uniform system — international law — but a series of more or less diverse municipal laws”. Lauterpacht summarises the position this way:

“While it, is clear that international law may and does act directly within the State, it is equally clear that as a rule that direct operation of international law is, within the State subject to the overriding authority of municipal law. Courts must apply statutes even if they conflict with international law. The supremacy of international law lasts, pro foro interno, only so long as the State does not expressly and unequivocally derogate from it. When it thus prescribes a departure from international law, conventional or customary, judges are confronted with a conflict of international law and municipal law and, being organs appointed by the State, they are compelled to apply the latter”.

There can be no question that nations must march with the international community and the Municipal law must respect rules of International law even as nations respect international opinion. The comity of Nations requires that Rules of International law may be accommodated in the Municipal Law even without express legislative sanction provided they do not run into conflict with Acts of Parliament. But when they do run into such conflict, the sovereignty and the integrity of the Republic and the supremacy of the constituted legislatures in making the laws may not be subjected to external rules except to the extent legitimately accepted by the constituted legislatures themselves. The doctrine of incorporation also recognises the position that the rules of international law are incorporated into national law and considered to be part of the national law, unless they are in conflict with Act of Parliament. Comity of Nations or not, Municipal Law must prevail in case of conflict. National Courts cannot say “Yes” if Parliament has said “No” to a principle of international law.

National Courts will endorse international law but not if it conflicts with national law. National courts being organs of the National State and not organs of international law must perforce apply national law if international law conflicts with it. But the Courts are under an obligation within legitimate limits, to so interpret the Municipal Statute as to avoid conformation with the comity of Nations or the well established principles of International law. But if conflict is inevitable, the latter must yield.

The proposition has been well stated by Latham CJ in Politics v. The Commonwealth:

“Every statute is to be interpreted and applied, as far as its language admits, as not to be inconsistent with the comity of nations or with the established rules of international law ………. It must be held that legislation otherwise within the power of the. Commonwealth Parliament does not become invalid because it conflicts with a rule of international law, though every effort should be made to construe Commonwealth statutes so as to avoid breaches of international law and of international comity. The question, therefore, is not a question of the power of the Commonwealth Parliament to legislate in breach of international law, but is a question whether in fact it has done so”.

The Supreme Court of India has said practically the same thing in Tractor export, Moscow v. M/s Tarapore & Company and Anr.:

“Now, as stated in Halsbury’s Laws of England, Vol. 36, page 414, there is a presumption that Parliament does not assert or assume jurisdiction which goes beyond the limits established by the common consent of nations and statutes are to be interpreted provided, that their language permits, so as not to be inconsistent with the comity of nations or with the established principles of international law. But this principle applies only where there is an ambiguity and must give way before a clearly expressed intention. If statutory enactments are clear in meaning, they must be construed according to their meaning even though they are contrary to the comity of nations or international law”.

The observations show that the court was only concerned with a principle of interpretation, but, by, implication, it may be possible to say that the court preferred the doctrine of incorporation; otherwise the question of interpretation would not truly arise. What has been said in the Tractor Export case is entirely consistent with what the Supreme Court had said earlier.

(This is an edited excerpt of the judgment of the Supreme Court.)