Harmonious construction and the international law allegory in India

Tulsyan, Aryan (2022) Harmonious construction and the international law allegory in India. Asian Journal of International Law. ISSN 2044-2521

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Abstract

The debate on whether international law can be considered as true ‘law’ has been unremitting, with no definite answer to the bindingness of international law. This paper analyses a contemporary constitutional practice—and tries to look at the way in which the Indian Supreme Court (“SC”) has applied the doctrine of ‘harmonious construction’ to incorporate international law to the domestic legal system of India, and its implications. Legal frameworks of most countries, including India, provide for international law within the domestic/municipal system. Typically, there are two traditions in this respect: First, as per the monist tradition, international law is automatically incorporated within domestic law, without the need for an enabling legislation; Second, as per the dualist tradition, the state has exclusive legislative authority, and international law must undergo a ‘transformation’ into a domestic legislation to be applied in the municipal legal system. Constitutionally, India falls within this dualist tradition. This paper also reflects on the slow-shift from dualism to monism by the use of ‘harmonious construction’ by the SC.

Item Type: Article
Subjects: Social Sciences and humanities > Social Sciences > Law and Legal Studies
JGU School/Centre: Jindal Global Law School
Depositing User: Amees Mohammad
Date Deposited: 25 Nov 2022 10:11
Last Modified: 25 Nov 2022 10:11
Official URL: https://www.cambridge.org/core/blog/2022/11/23/har...
Additional Information: Cambridge Core Blog
URI: https://pure.jgu.edu.in/id/eprint/4853

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