Abstract
This chapter seeks to provide an analytical snapshot of international humanitarian law in the Supreme Court and High Courts in India. The bulk of the chapter is dedicated to an analysis of the application of international humanitarian law norms in post-independence judicial decisions. The case law has been categorised into four broad themes: occupation and annexation of territory; prisoners of war; terrorism and the war on terror; and the meaning of aggression. The chapter also critically analyses cases in which Indian courts have failed to appreciate the nuances of, and thereby misapplied, international humanitarian law. Finally, a few cases where Indian courts conspicuously omitted to cite international humanitarian law, where they could have done so, are briefly discussed.
The author is a PhD Candidate at the University of Cambridge. Chritarth Palli from the Government Law College, Mumbai provided excellent research assistance. All errors remain those of the author.
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1 Introduction
India is no stranger to warfare and the rules that govern its conduct. Some of the oldest laws and customs of war can be traced back to the Vedic period, dating from about 1500 BC to 500 BC.Footnote 1 Ancient texts such as the Ramayana, the Mahabharata, the Agni Purana and the Manusmriti include prescriptions on the legitimate conduct of war.Footnote 2 They distinguished between dharma yuddha (just war) and adharma yuddha (unjust war).Footnote 3 Using poisoned or disproportionately harmful weapons, attacking disarmed soldiers and inflicting harm upon non-combatants was proscribed.Footnote 4 Rulers were duty bound to inform their rivals of their intention to go to war.Footnote 5
In contemporary times, post-independence India has fought four wars with Pakistan,Footnote 6 one with ChinaFootnote 7 and has militarily intervened in the Sri Lankan civil war.Footnote 8 Governments have also persistently faced situations of internal armed conflict against Maoists in the ‘red corridor’Footnote 9 and insurgents in KashmirFootnote 10 and the Northeast.Footnote 11 But counterintuitively, international humanitarian law (IHL) finds less reference than expected in the judgments of Indian courts.
This chapter has three primary objectives. First, it seeks to thematically analyse Indian courts’ consideration and application of norms of IHL. Greatest emphasis has been placed on this objective. Second, it seeks to expound upon the cases in which Indian courts have misunderstood basic principles of IHL on some occasions when they have chosen to cite it. Third, it seeks to critically analyse a few cases in which IHL was not invoked, even though its application would have been apposite.
With this context in mind, the chapter proceeds as follows. Section 14.2 briefly examines the legal status of international law (including IHL) in India. Section 14.3 thematically analyses the Indian case law concerning the application of IHL norms. Section 14.4 takes a step back by looking at the overall picture of application, misapplication and non-application of IHL norms in India. Concluding comments are given in Sect. 14.5.
2 The Status of International Law in India
Several provisions of the Indian Constitution make direct or indirect references to international law.Footnote 12 How a judicial system views international law in general is an important factor in understanding its approach to principles of IHL.Footnote 13 With regard to the relationship between international law and the municipal law, Indian courts have steadily moved from a transformationalist approach, requiring international law to be transformed into the municipal law through constitutional machinery before it has any effect, to an incorporationalist approach that recognises international law as having become part of the municipal law without the intervention of domestic constitutional processes. The Supreme Court and High Courts have increasingly relied upon international treaties and custom, particularly in the sphere of human rights and environmental law.Footnote 14 In what remains one of the most authoritative cases on this subject, the Supreme Court said:
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. 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.Footnote 15
In Vellore Citizens’ Welfare Forum v. Union of India,Footnote 16 in the context of sustainable development in environmental law, the Supreme Court reiterated that the rules of customary international law are deemed to be incorporated into the domestic law, so long as they are not inconsistent. In a case concerning the sexual harassment of women in workplaces, the Supreme Court observed that in the absence of domestic legislation in the field, international conventions and norms can be read into fundamental rights under the Constitution.Footnote 17 Therefore, international conventions and custom can supplement existing legislation or relevant constitutional provisions.Footnote 18
India has ratified the four Geneva Conventions of 1949Footnote 19 but has neither signed nor ratified the three additional protocols.Footnote 20 The Geneva Conventions Act 1960 (GCA) incorporates the Geneva Conventions into domestic law.Footnote 21 Other statutes also incorporate aspects of IHL into Indian domestic law. The Chemical Weapons Convention Act 2000 gives effect to the Chemical Weapons Convention,Footnote 22 which was ratified by India in 1996. It establishes a national authority for implementing the provisions of the Chemical Weapons Convention, prohibits the use of chemical weapons, sets up an inspection regime and contains provisions relating to offences and penalties. The Weapons of Mass Destruction and their Delivery Systems (Prohibition of Unlawful Activities) Act 2005Footnote 23 provides for ‘integrated legal measures’ to exercise controls over the export of materials, equipment, and technologies and prohibits unlawful activities in relation to weapons of mass destruction and their means of delivery. It was enacted in pursuance of Resolution 1540 of the UN Security Council.Footnote 24
These statutes provide a framework for IHL discourse in India’s judicial system. The next section will analyse judgments that have applied norms of IHL.
3 Thematic Analysis of IHL in Indian Domestic Courts
This section analyses the judgments that apply norms of IHL under four broad themes: occupation and annexation of territory, prisoners of war, terrorism and the war on terror and the meaning of aggression.Footnote 25 These themes are employed with the objective of demonstrating the range of matters which have given rise to a discussion of IHL in Indian courts, rather than constructing distinctive jurisprudential approaches to different kinds of subject matter. Therefore, the themes should not be understood as being mutually exclusive either in the kinds of IHL issues that arise for consideration or in courts’ treatment of them.
3.1 Occupation and Annexation of Territory
Rev Monterio v State of Goa Footnote 26 arose in the backdrop of post-independence India’s annexation of Goa. Goa, a territory that is part of the Indian sub-continent, was a Portuguese colony for over four centuries.Footnote 27 In December 1961, Indian armed forces launched a short military operation that led to the surrender of the Portuguese.Footnote 28 In March 1962, the Parliament of India passed a constitutional amendmentFootnote 29 to recognise Goa as a union territoryFootnote 30 of India from 20 December 1961 onwards. The petitioner, a resident of Goa, had the option under the law of retaining his Portuguese nationality instead of becoming an Indian national. He chose to exercise this option, was registered as a foreigner and obtained a temporary residential permit to stay in India until November 1964.Footnote 31 He did not seek an extension or renewal of the permit on the expiry of his term of residence. As a result, he was ordered to leave India by the Lieutenant Governor General of Goa. He was prosecuted and sentenced to thirty days’ imprisonment and a fine for disobeying the order.Footnote 32 After appealing unsuccessfully, he filed a special leave petitionFootnote 33 to the Supreme Court of India.
The petitioner contended that his deportation was contrary to the GCA, which incorporated the four Geneva conventions into domestic law. His argument relied upon Articles 1, 2, 4, 6, 8, 47 and 49 of the Fourth Geneva Convention. Central to the discussion were Articles 47Footnote 34 and 49Footnote 35 of the Fourth Geneva Convention.Footnote 36 Since the benefits that arise from these provisions for the civilian population are contingent on the territory in question being ‘occupied’, the most important question for the Court was whether Goa could still be described as an occupied territory. A further question arose under Article 49—could the order of the Lieutenant Governor General be considered as an order of deportation of a protected person?
The petitioner chose not to question the legality of the annexation itself.Footnote 37 Instead, he contended that Goa was ‘occupied territory’ and that the occupation had not come to an end.Footnote 38 His argument sought to interpret the provisions of the Fourth Geneva Convention in the light of developments in international law, under which acquisition of territory by the use of force did not end occupation and confer title.Footnote 39 Moreover, the constitutional amendment passed by Parliament did not legitimize the unilateral military annexation in the eyes of international law.Footnote 40 The occupation would not come to an end until the territory was formally ceded by the original power (in this case, Portugal) or until the occupying power (India) withdrew from the territory.Footnote 41 Thus, Goa should be considered occupied territory for the purposes of Articles 47 and 49. Further, according to the petitioner, the order made by the Lieutenant Governor General was a deportation order.Footnote 42 The state contended that one of the legitimate ways in which occupation comes to an end is through conquest followed by subjugation.Footnote 43 Therefore, Goa was a part of India and could not be described as ‘occupied territory’.
The judgment of the Court is interesting, both in terms of the result it arrived at as well as with reference to the observations made in the course of the decision. At the outset, the Court observed that the GCA did not give a specific right to anyone to approach the court. This on account of the fact that the GCA was passed in pursuance of Article 253 of the Constitution and only provided ‘for certain matters based on Geneva Conventions’.Footnote 44 The Court remarked:
…the Act by itself does not give any special remedy. It does give indirect protection by providing for penalties for breaches of Convention. The Conventions are not made enforceable by Government against itself nor does the Act give a cause of action to any party for the enforcement of Conventions. Thus there is only an obligation undertaken by the Government of India to respect the Conventions regarding the treatment of civilian population but there is no right created in favour of protected persons which the Court has been asked to enforce. If there is no provision of law which the courts can enforce the court may be powerless and the court may have to leave the matter to what Westlake aptly described as indignation of mankind.Footnote 45
Thus, the Court was unsure about the method that an aggrieved party needed to adopt in order to invoke the jurisdiction of a municipal court, but it chose not to consider the issue since on the merits, it agreed with the contentions of the state.
Since the Geneva Conventions do not define the notion of occupation, the Court relied upon Article 42 of the Hague Regulations concerning the laws and customs of war on land of 1907, according to which a territory is considered occupied when it is actually placed under the authority of the hostile army.Footnote 46 From this definition, the Court inferred that occupation under Articles 47 and 49 referred to military occupation, a temporary situation that does not deprive the occupying power of its sovereignty or statehood. Annexation, however, takes place when possession is supplemented by ‘uncontested sovereignty’ over territory and gives rise to a de jure right to administer the territory.Footnote 47 The Court then distinguished between ‘premature annexation’ and ‘true annexation’.Footnote 48 Whereas the former takes place in situations where hostilities are continuing, the latter is said to occur when the territory is conquered and subjugated.
The Court recognized that Article 47 of the Geneva Convention specified that annexation had no impact on protection. However, the nature of annexation spoken of in this provision was premature annexation and not true annexation. True annexation confers title and destroys the source of authority of the existing government.Footnote 49 Following true annexation, the inhabitants would be bound to follow the laws of the annexing state.Footnote 50 The military operation conducted by India lasted for only a few hours and was not resisted.Footnote 51 Thus, in this case, the occupation ended and gave way to true annexation when the hostilities ceased. The date of true annexation was 20 December 1961, when the government was taken over and there was neither an army in occupation, nor an army in opposition.Footnote 52 The Court also asserted that the annexation had given rise to a transfer of title: ‘[i]f cession after defeat can create title, occupation combined with absence of opposition must lead to the same kind of title’.Footnote 53 It arrived at the conclusion that the petitioner could not claim the benefit of the relevant provisions of the Geneva Conventions. He was bound by the order of the Lieutenant Governor General, since sovereign states had the prerogative to distinguish between citizens and non-citizens. The Supreme Court therefore held in favour of the state.
To date, this remains the case that engaged most with concepts of IHL. Some of the issues that arose in the court’s decision are now worth analyzing. To begin with, the petitioner decided not to question the legality of the annexation itself. At one level, this was a strategic and ingenious move, although it did not yield dividends. If the petitioner had chosen to question the legality of the annexation itself, it would have left him with a big mountain to climb. How comfortable would a group of five Supreme Court judges have been declaring that India’s annexation of Goa was illegal in the eyes of international law? The petitioner sought to separate the question of the legality of the military operation from the question of acquisition of sovereignty. But the Court did not accept this argument. On the contrary, it noted that:
It must be remembered that Mr. Gardiner [counsel for the petitioner] concedes that the annexation was lawful. Therefore, since occupation in the sense used in Article 47 [of the fourth Geneva Convention] had ceased, the protection must cease also.Footnote 54
It is problematic to draw the bridge between the legality of the military operation and the transfer of title over territory as the Court did. It is plausible to argue that the unilateral use of force against the territory of another state may be lawful in some situations and not in others. What the petitioner contended was that regardless of whether the use of force was lawful or not, acquisition of sovereignty or title over the territory could never follow under international law.
At the outset, the Court should have decided the question about whether the petitioner had the standing to challenge the order of the Lieutenant Governor General under the GCA in the first place, rather than have said that his challenge failed in any event. The Supreme Court flipped the logical order of analysis by answering the substantive question and sidestepping the equally important threshold question. Further, the court’s remark that the GCA did not seem to provide any specific remedies against the governmentFootnote 55 is peculiar. This argument implies that a statute that does not specifically provide for remedies is meaningless and unenforceable in the eyes of the law. But this is a mistaken conclusion. For instance, any delegated legislation or executive action that is inconsistent with the provisions of such a statute can be struck down by the courts in exercise of their powers of judicial review. Thus, a statute in the nature of the GCA imposes an injunction on the executive not to act contrary to principles of IHL. If a representative of the state does act contrary to the GCA, that would trigger the remedy of judicial review under the common law.
Finally, the Court’s conclusion that ‘true annexation’ brought the occupation to an end seems to contradict fundamental notions of modern IHL.Footnote 56 However, although the Court’s analysis that the annexation led to a transfer of title may seem flawed when examined exclusively through the funnel of IHL, it finds greater justification when viewed in the context of the broader political and legal issues of de-colonisation, self-determination and acceptance by the international community of states, all of which were precipitated by the annexation of Goa.Footnote 57
3.2 Prisoners of War
Another issue that has been brought before Indian courts concerns the treatment and repatriation of prisoners of war. Both cases that will be discussed arose in the context of the 1971 Indo-Pakistan war. In December 1971, a war broke out between India and Pakistan.Footnote 58 The war lasted for only about two weeks and led to the secession of East Pakistan as the independent state of Bangladesh.Footnote 59 The three countries agreed to release and repatriate prisoners of war thereafter.Footnote 60 On the Indian side, there were concerns that some prisoners of war remained in Pakistani jails despite assertions to the contrary by the government of Pakistan.Footnote 61
A remarkable set of circumstances provide the backdrop for the Supreme Court’s judgment in Angrej Kaur v. Union of India.Footnote 62 The wife of a constable on the Border Security Force, who was declared to have died during the war, petitioned the Supreme Court under Article 32 of the Constitution.Footnote 63 Based on news reports and verbal testimonies of prisoners of war who had been repatriated, she believed that her husband was alive and languishing in Pakistani jails for over three decades. Accordingly, she prayed for a writ of habeas corpus seeking the repatriation of her husband.Footnote 64
The Court recognised that issuing a writ of habeas corpus to Pakistani authorities was beyond the boundaries of its jurisdiction.Footnote 65 But it sought to pass appropriate directions, since in its view, human emotions made it difficult to accept the ‘legal landline’ between the two nations.Footnote 66 The Court was satisfied that the Indian authorities had taken a number of steps, including engaging in bilateral discussions with Pakistan, to trace the whereabouts of the petitioner’s husband. It disposed of the petition by issuing a direction asking the authorities to continue their efforts. Clarifying that its directions related to Indian officials alone, the court said:
If a soldier, while fighting for the country’s security, is captured and taken to other [sic] country’s prison contrary to the official belief that he was dead, it would be in the interest of not only petitioner and her family members but also for the armed forces of this country to see that he is brought back to our country.Footnote 67
Although the Court did not categorically cite principles of IHL in its judgment, its judgment was in furtherance of accepted norms concerning the release and repatriation of prisoners of war after the close of hostilities, specifically laid down in Article 118 of the Third Geneva Convention.Footnote 68
Under IHL, the obligation to release prisoners of war is triggered as soon as active hostilities cease.Footnote 69 Hence, the mere fact that hostilities may resume at some point in the future is not a sufficient basis to be absolved of this obligation.Footnote 70 The duty of release and repatriation after the termination of hostilities is absolute and is not contingent on the behaviour of the home state.Footnote 71 Given that the Supreme Court is a national court, it was of course not open to it to seek the direct enforcement of IHL by issuing directions to Pakistani authorities. Its directions, however, did seek the proxy-enforcement of IHL by requiring Indian authorities to continue to engage with their Pakistani counterparts on the issue of the release of the petitioner’s husband.
The second case under this theme arose in similar circumstances, but on a larger scale. In Jagjit Singh Arrora v. Union of India,Footnote 72 former members of the Indian armed forces petitioned the Gujarat High Court in relation to fifty-four prisoners of war who were allegedly languishing in Pakistani jails for over three decades after the 1971 war, and were presumed dead by the Government of India. The petitioners had two principal contentions. First, that since the prisoners of war were still alive, they should be treated as having been alive for the purposes of the payment of salary, pension and benefits to their next of kin.Footnote 73 In other words, rather than being treated as dead since the 1971 war, members of the armed forces should be treated as though they had served their full tenure until retirement. The second argument was more contentious. The court was asked to direct the government to petition the International Court of Justice (ICJ) requesting Pakistan to honour its agreements on the repatriation of prisoners of war.Footnote 74
The second contention of the petitioners was based on the fact that the Indian and Pakistani governments had entered into the Simla Agreement in July 1972, under which it was agreed that the modalities for the repatriation of prisoners of war would be discussed.Footnote 75 Pursuant to this agreement, it was subsequently decided that the governments would release and repatriate the prisoners of war.Footnote 76 The petitioners claimed that India acted in accordance with the Geneva Conventions by treating prisoners with respect and repatriating them in accordance with the agreement with Pakistan. The government of Pakistan, on the other hand, was in breach of IHL and their treaty obligations by failing to repatriate a large number of Indian prisoners of war.Footnote 77
As in the Agrej Kaur case, the government of India argued that it had made sustained diplomatic efforts in seeking to discover the whereabouts of these prisoners of war.Footnote 78 It also staunchly opposed the contention that it should be directed to take the issue to the ICJ for two reasons. First, the government was not in a position to take the case to the ICJ unilaterally. The ICJ would have jurisdiction only if a reference was made by both India and Pakistan.Footnote 79 Second, invoking the International Court’s jurisdiction would contradict India’s consistent approach that its disputes with Pakistan should be resolved bilaterally without any third-party intervention.Footnote 80
The Gujarat High Court held that since the prisoners of war were still alive, the state could not presume them dead. Hence, their next of kin would be entitled to service and retirement benefits as though they were in service until the age of retirement.Footnote 81 Controversially, the Court also directed the government to refer the matter to the ICJ, since Pakistan was in breach of an international treaty.Footnote 82 It correctly recognised that apart from a special agreement referring a dispute to the court, the ICJ’s jurisdiction can also be invoked through compromissory clausesFootnote 83 in treaties.
The evidence relied upon by the Court in arriving at this conclusion was tenuous. It cited the first clause of the Simla Agreement which states that ‘the principles and purposes of the Charter of the United Nations shall govern the relations’ between the parties.Footnote 84 According to the Court, since the Statute of the ICJ is included as an annex to the Charter of the United Nations, the parties, both signatory to the U.N. Charter, could be deemed as having consented also to the referral of disputes to the ICJ. Further, since the repatriation was in pursuance of the Simla Agreement, Pakistan’s failure to repatriate the prisoners of war could be taken to the ICJ.
The Court also stated that referring the matter to the ICJ would not affect India’s policy of dealing with Pakistan-related issues on a bilateral basis, since all that was sought here was the enforcement of an agreement that was entered into between the two countries, which the state was obliged to pursue in the light of the right to life of the prisoners of war under the Indian Constitution.Footnote 85 Thus, the Court attempted to secure the fulfilment of Pakistan’s obligations under IHL through the unprecedented route of directing the Union of India to approach the ICJ within two months’ time.
This is problematic for a number of reasons. First, it raises the question about whether a municipal court can direct a government to approach the ICJ, something which seems to fall squarely within the prerogative of the executive.Footnote 86 The Court seemed to justify its conclusion on the basis that it was only mandating the government to enforce the provisions of the treaty that it had entered into. But this argument erroneously assumes that petitioning the ICJ is the only way of securing the enforcement of IHL in general, and of treaty obligations in particular. Judicial redress is neither the only, nor necessarily the most optimal, method of securing compliance with treaties embodying IHL norms. Pursuing bilateral diplomatic channels, mounting international pressure or reconfiguring trade relations could all be effective methods of securing the same objective.Footnote 87
The Court’s decision is also questionable on grounds of institutional competence—how appropriate is it for the judiciary to decide that a sovereign state should petition the ICJ against another? This is a decision which should be left to the government, since it has polycentric implicationsFootnote 88 going far beyond the release of prisoners of war. Even if the Court’s decision is framed in rights-based terms, on the argument that the fundamental rights of the prisoners of war are at stake, it could have far reaching rights-based implications on many others who are caught in the political crossfire between the two nations.
Finally, the court’s understanding of international law, which had a bearing on its interpretation of the Simla Agreement, was questionable. Article 36(1) of the Statute of the ICJ provides that the International Court has jurisdiction in all matters where this is specially provided for in the Charter of the United Nations or in treaties and conventions. Thus, compromissory treaty clauses must provide for the referral of disputes to the ICJ with at least some degree of specificity. For instance, in the Nicaragua case,Footnote 89 the clause that led to the invocation of the court’s jurisdiction was as follows: ‘[a]ny dispute between the Parties as to the interpretation or application of the present Treaty, not satisfactorily adjusted by diplomacy, shall be submitted to the International Court of Justice, unless the Parties agree to settlement by some other pacific means’.Footnote 90 Similarly, in Bosnia and Herzegovina v Yugoslavia,Footnote 91 the compromissory clause that founded the Court’s jurisdiction stated that ‘[d]isputes between the Contracting Parties relating to the interpretation, application or fulfillment of the present Convention… shall be submitted to the International Court of Justice at the request of any of the parties to the dispute’.Footnote 92 The opening clause of the Simla Agreement, which simply states that the ‘principles and purposes’ (and not even the methods and means) of the UN Charter will govern the relations between the parties,Footnote 93 is not sufficiently specific to establish the jurisdiction of the ICJ. The second clause in the Simla Agreement addresses the methods of dispute resolution more directly and only states that the two countries will settle disputes through ‘bilateral negotiations or by any other peaceful means mutually agreed upon between them’.Footnote 94
The government has filed an appeal to the Supreme Court against the High Court’s direction to petition the ICJ.Footnote 95 The appeal is still pending, although the Supreme Court has temporarily suspended the effect of the Gujarat High Court’s judgment.Footnote 96 It has to be seen whether the Supreme Court takes a more nuanced approach to the IHL issues at stake.
3.3 Terrorism and the War on Terror
This section examines the application of IHL norms in cases relating to terrorism. Terrorism has a long and complex history in independent India and remains one of the biggest challenges to national security.Footnote 97 Terrorist operations have not only affected the lives of those in the middle classes, but have also found their way into the corridors of influence. The terrorist attack on Parliament, which provides the context of the cases that are discussed in this part, is a good example.
On 13 December 2001, a group of five terrorists infiltrated the Parliament of India in New Delhi while it was in session.Footnote 98 Their objective was to take members of Parliament and government officials hostage and blow up the parliamentary premises.Footnote 99 The attempt failed. The terrorists were killed following an exchange of fire with security personnel.Footnote 100 Four people were tried for engaging in a conspiracy along with the terrorists to perpetrate the attack. Three of them were convicted by a special court,Footnote 101 while the fourth was convicted for a lesser offence. State v Mohammed Afzal Footnote 102 concerned the appeals from the judgment of the special court.
Although the accused were charged with committing a range of criminal offences, the offence that is of interest for this chapter is provided for in Section 121 of the Indian Penal Code 1860, which penalises the waging of war against the government of India.Footnote 103 Before Indian independence, this capital offence was invoked by the British colonial government to prosecute and punish those who attacked state institutions and sometimes, even those who instigated violence against the government.Footnote 104 Post-independence, it has frequently been employed against those accused of committing terrorist acts.Footnote 105
In Mohammed Afzal, the state and the defendant parted ways on the interpretation of the notion of ‘war’ under Section 121 of the Indian Penal Code. The defendant argued that ‘war’ should be interpreted as seeking to overthrow the government by conquest or rebellion and attacking combatants as opposed to civilians.Footnote 106 War was fought between nations according to the rules of international conventions. Since the terrorists did not seek to overthrow the government of the day, they could not be prosecuted under Section 121.Footnote 107 Further, unlike war, which signified an ongoing state of hostilities, terrorist acts were intermittent, and hence fundamentally different.Footnote 108
In response, the state contended that there was a difference between inter-state war and intra-state war.Footnote 109 The illustration accompanying Section 121 provided a glimpse into the minds of the enacting legislature. Since joining an insurrection against the government constitutes ‘waging war’ against the government of India, the legislative intent was not meant to restrict the meaning of ‘war’ to cases where rival states were engaged in an armed conflict of a certain magnitude.Footnote 110
Speaking for the Court, Justice Nandrajog rejected the interpretation of Section 121 put forth by the counsel for the defendant. The Court held that ‘war’ was a flexible expression that had different connotations in international law and municipal law.Footnote 111 Insurgency, as a legal concept, fell within the auspices of ‘waging war’ as understood in Indian domestic law.Footnote 112 Even international law drew a distinction between inter-state wars and intra-state wars. Although the volume of international law applying to internal armed conflict has been expanding progressively, the rules governing intra-state war are still fundamentally different from those governing inter-state war. Further, wars as understood in the international sense did not imply continuous conflict, and could be interspersed with periods of cease-fire. Responding to the defendant’s contention that war would necessarily implicate an objective to overthrow the government, the Court clarified that wars can conceivably have more limited or modest objectives, for instance the partial conquest of a territory or the coercion of a rival government.Footnote 113 Terrorist tactics may be adopted in war.Footnote 114
Thus, the Court concluded that wars could occur even where the belligerents were not states. Individuals who had a different allegiance could use arms to engage against the state. The scale of aggression would be determinative in order to ascertain whether an act constituted war against the government under Section 121.Footnote 115 The number of combatants would only be a relevant factor in deciding whether an act of violence could be described as an act of war. The Court provided an example to drive home the point:
… a single person may have infiltrated into India with a nuclear bomb, a missile and a navigation system to guide a missile. He uses it to bomb the parliament when it is in Session and particularly when the President of India is to address it. The entire executive and the legislature is present…He intends by his attack to wipe out the entire legislative and executive body. This solitary act by one man would be more devastating then a 1,000 armed men attacking the Parliament. Indeed, it would be an act of war.Footnote 116
The Court found that where a group of five terrorists attacked Parliament, the seat of Indian sovereignty, while it was in session, this would constitute an act of war for the purposes of Section 121 considering the cache of arms and fire-power that was at their disposal. Thus, Justice Nandrajog relied upon the difference between international armed conflict and non-international armed conflict in order to expound upon the meaning of war under Section 121 of the Indian Penal Code.Footnote 117 Two of the defendants were sentenced to death under this provision.
The matter went in appeal to the Supreme Court.Footnote 118 The Supreme Court agreed with the Delhi High Court’s interpretation of the term ‘war’ under Section 121 of the Indian Penal Code.Footnote 119 According to it, there was a difference between the understanding of war in municipal law and international law.Footnote 120 In international law, war referred to military operations between two or more hostile states. Given the illustration to Section 121,Footnote 121 it was clear that war was ascribed a different meaning under the Indian Penal Code. It was intended to include acts of insurrection or insurgency (as opposed to belligerency) against the government. As a result, the court stated that although every terrorist act did not amount to waging war under Section 121,Footnote 122 some terrorist acts could attain the threshold of waging war.
Writing the Court’s judgment, Justice Venkatarama Reddi did not acknowledge the distinction between international armed conflict and non-international armed conflict that was expounded upon by the High Court.Footnote 123 Instead, the Supreme Court chose to highlight that there was divergence of opinion about how war was defined in the international sphere as well.Footnote 124
In failing to identify that IHL draws a distinction between international armed conflict and non-international armed conflict, the court misunderstood the law in two ways. To begin with, its judgment conveys the impression that the concept of war in international law is always understood as involving belligerency between states (although the court did accept that precise definitions of war within this framework varied). Second, it implies that rules of international law govern only war between sovereign states. Both of these propositions are mistaken, since IHL not only takes cognizance of intra-state wars, but also prescribes rules for the conduct of such wars.Footnote 125 In fact, Additional Protocol II to the Geneva Conventions relates exclusively to the protection of victims of non-international armed conflicts.
3.4 The Meaning of Aggression
Under the final theme, I will briefly examine a case in which the Supreme Court relied upon understandings of war in IHL to distinguish it from the notion of ‘aggression’. In Sarbananda Sonowal v Union of India,Footnote 126 a public interest litigation petition challenging the constitutional validity of the Illegal Migrants (Determination by Tribunals) Act 1983 (IMDT Act) was filed. The objective of the IMDT Act was to detect and deport primarily Bangladeshi illegal immigrants from the state of Assam.Footnote 127 This law was special legislation that applied only to Assam and was meant to override the provisions of the Foreigners Act 1946,Footnote 128 which was applicable to illegal immigrants in the rest of India.Footnote 129
The petitioner contended that the IMDT Act failed to achieve its objective and stood in breach of provisions of the Constitution.Footnote 130 One of the grounds of challenge was based on Article 355 of the Constitution, which reads as follows.
Duty of the Union to protect States against external aggression and internal disturbance- It shall be the duty of the Union to protect every State against external aggression and internal disturbance and to ensure that the government of every State is carried on in accordance with the provisions of this Constitution.
The petitioner contended that the influx of a large number of illegal immigrants from Bangladesh into Assam constituted ‘external aggression and internal disturbance’ for the purposes of Article 355.Footnote 131 Thus, by virtue of being an ineffective law passed for Assam to replace the more effective law applicable to the rest of the country, the IMDT Act should be struck down for violating this constitutional mandate.
The moot question was whether the entry of illegal immigrants could fall within the purview of the word ‘aggression’ in Article 355. Addressing this issue, the Court held that the term was of a very wide import and should not be confused with ‘war’.Footnote 132 Though war would be included within the scope of aggression, the converse would not necessarily be true. The Court cited three different definitions of the notion of warFootnote 133 in IHL to substantiate its opinion. It asserted that war is a contest between two or more belligerent states and can sometimes involve the general population as well.Footnote 134 According to the Court, the framers of the Constitution consciously used the word ‘aggression’ rather than ‘war’ to avoid these connotations.Footnote 135 In its view, the influx of illegal immigrants fell within the purview of the notion of aggression.Footnote 136 The IMDT Act was struck down as unconstitutional.Footnote 137
4 Norms of IHL in Indian Courts: The Overall Picture
4.1 Infrequent References to IHL
The first thing that is discernible when sifting through Indian case law is that references to IHL and the Geneva Conventions have been scant, especially when compared to international human rights conventions such as the International Covenant on Civil and Political RightsFootnote 138 and the Convention on the Elimination of All Forms of Discrimination Against Women.Footnote 139 The reasons for this could be manifold and go beyond the consideration of this chapter. But they could include the nature and profile of litigation in the Supreme Court and High Courts, the greater appeal and superior accessibility of international human rights law compared to IHL and the lack of emphasis on IHL in the curricula of university law courses.Footnote 140
4.2 The Importance and Nature of the Role of IHL in Case Law
The relative importance of the IHL question in the overall context of the court’s judgment has varied. In the Rev Monterio caseFootnote 141 the whole matter hinged on the IHL issue of whether and when India’s occupation of Goa had ceased. Similarly, in the prisoners of war cases, the IHL norms requiring the repatriation of prisoners of war after the close of hostilities provided the substratum for the courts’ judgments. In the terrorism cases, the definition of war under IHL was relevant to one aspect of the courts’ judgments—the interpretation of ‘waging war’ against the government under Section 121 of the Indian Penal Code. In Sarbananda Sonowal,Footnote 142 the application of IHL played a peripheral role, as the Court attempted to define the concept of war vis-à-vis that of aggression.
In practice, where it has been cited, IHL has played two different roles in Indian case law. First, it has been applied directly in order to justify or form the basis of the Court’s judgment. This will be referred to as the ‘applicatory role’ of IHL. The cases examined under the first two themes discussed in the previous section demonstrate IHL’s applicatory role. In the case concerning the annexation of Goa, the Supreme Court directly relied upon the notions of occupation and annexation as understood in the Geneva Conventions and Hague Regulations in order to determine whether India’s belligerent occupation had ceased. In the cases relating to prisoners of war, the principle of repatriation of prisoners of war after the close of hostilities and the agreements between India and Pakistan in pursuance of this principle formed the basis for the courts’ decisions.
The second role IHL plays in Indian jurisprudence encompasses situations where a principle or concept of IHL has been cited to distinguish it from a concept in domestic law. This will be referred to as IHL’s ‘distinguishing role’. The cases analyzed under the third and fourth themes of the previous part bring out the distinguishing role of IHL. In the terrorism cases, the definition of ‘war’, as understood in IHL, was used as a point of contrast with the meaning of ‘war’ under the Indian Penal Code. In the case under the final theme on aggression, the concept of aggression under Article 355 of the Indian Constitution was distinguished from the understanding of war in IHL.
4.3 Misapplication and Mislabelling
The Jagjit Singh Arrora Footnote 143 and Navjot Sandhu Footnote 144 cases reflect a failure to appreciate and take account of the nuances of IHL, even though it was referred to. In Jagjit Singh Arrora, the infirmity lies in failing to understand the specificity required for clauses to be considered as ‘compromissory’ under Article 36(1) of the ICJ Statute. The Supreme Court’s error in Navjot Sandhu was more subtle: it was a failure to appreciate the qualitatively different kinds of armed conflict that IHL may be applicable to.
Further, on at least one occasion, what has been labelled as IHL actually fell within the domain of international refugee law. In Ktaer Abbas Habib v Union of India,Footnote 145 the petitioners were Iraqi refugees who had left their home country to avoid having to serve in the army. They had a fear of persecution in their home country and requested that they be handed over to the United Nations High Commissioner for Refugees instead of being deported to Iraq. Treating the problem as one of international humanitarian law, the Gujarat High Court said:
There is no law in India which contain [sic] any specific provision obliging the State to enforce or implement the international treaties and conventions including the implementation of International Humanitarian Law (IHL). Amongst the domestic legislation, the only law that directly deals with the principle of IHL is the Geneva Convention Act, 1960.Footnote 146
It then cited the Rev Monterio case,Footnote 147 which has been discussed above, for the proposition that the GCA did not provide any special remedies. The court laid down a group of principles applicable to IHL norms (which, in its view, included the concept of non-refoulment). Admittedly, the lines of distinction between IHL, international criminal law, international human rights law and international refugee law have been increasingly blurring.Footnote 148 But to treat non-refoulement as a principle which squarely falls within IHL reflects a failure to recognize the broad jurisdictional domains of different aspects of international law.
4.4 The Non-application of IHL
Sometimes, courts have not applied IHL norms in cases where they would have been particularly apposite or relevant. Nandini Sundar v State of Chattisgarh Footnote 149 was a high profile and politically charged case that was adjudicated upon by the Supreme Court in 2011. Throughout the last few decades, the state of Chhattisgarh has been critically affected by insurgent militant groups with a Maoist ideology.Footnote 150 With the objective of combating this insurgency, the state established an armed civilian vigilante group which went by the name of ‘Salwa Judum’.Footnote 151 Untrained and poorly paid tribal youth were appointed as special police officers, participating in anti-insurgency operations.Footnote 152 It is widely believed that the Salwa Judum itself was involved in widespread human rights violations and atrocities.Footnote 153 As a result, a petition was filed in the Supreme Court seeking that this force be declared unconstitutional.
The Court held that the mobilisation of the Salwa Judum violated Article 14 of the Constitution, the right to equality before the law.Footnote 154 According to the Court, subjecting untrained, poorly educated members of the tribal communities to the same dangers as the regular state police force was discriminatory.Footnote 155 Moreover, the right to lifeFootnote 156 was breached on account of the fact that, as experience had shown, employing such persons in counter-insurgency operations endangered the lives of others in society.Footnote 157 The Court therefore disbanded the Salwa Judum and directed the state to recall the firearms provided to its members.Footnote 158
The Court did not cite principles of IHL in its judgment. This case would have been a paradigm scenario for the application of Additional Protocol II to the Geneva Convention, which concerns the protection of victims of non-international armed conflicts. As renowned journalist Siddharth Varadarajan has noted in the context of the insurgency in Chhattisgarh and the Salwa Judum, ‘if ever there was a textbook case of the kind of conflict envisaged by Protocol II, the tragedy that is playing out in Chhattisgarh is surely it’.Footnote 159
Various provisions of the Protocol would have been relevant to the facts of the case. For instance, Article 4 provides for the humane treatment of those who do not or have ceased to take part in hostilities. Article 13 provides that ‘[t]he civilian population and individual civilians shall enjoy general protection against the dangers arising from military operations’. Article 17 prohibits the displacement of civilian populations on account of the conflict. Even if one were to attribute the Court’s omission to cite the Additional Protocol to the fact that India is not a party to it, the court could have referred to common Article 3 of the Geneva Conventions, which applies to non-international armed conflicts and requires the humane treatment of persons not taking active part in the hostilities.
Another caseFootnote 160 was set in the backdrop of insurgency movements in the state of Assam. A group of petitions in the Gauhati High Court challenged the Presidential proclamation of emergencyFootnote 161 in the state, as well as the characterisation of the state as a ‘disturbed area’ under two statutes.Footnote 162 The ‘disturbed area’ status granted the army sweeping powers in conducting counter-insurgency operations.Footnote 163 One of the petitioners sought the enforcement of Additional Protocol II of the Geneva Convention. The petitioner described the army as a combatant force and the people of Assam as non-combatant civilian population.Footnote 164 He claimed that the army action had forced villagers to flee their villages. Army personnel kidnapped civilians and raped women. Farmers were prevented from working.Footnote 165 Although the court broadly agreed with the petitioners and imposed some safeguards in the form of directions to the government,Footnote 166 it neither expressed an opinion on, nor engaged with, the IHL norms invoked in the argument of one of the petitioners. Like in the Nandini Sundar case, this would have been a fit case for the invocation of Additional Protocol II or common Article 3.
It is difficult to attribute the judicial reticence on IHL norms to a single factor. A number of factors might bear partial responsibility. For instance, in Nandini Sundar, the parties did not seem to invoke IHL norms, and so it is possible that the application of IHL norms simply did not cross the Court’s mind. Another explanation could be that the courts had homegrown legal tools, such as constitutional provisions, at their disposal in order to achieve the same result that would have been achieved by resorting to norms of IHL. A third explanation could be that, at least vis-à-vis Additional Protocol II, India is not a party to the international convention. Nevertheless, in other spheres of international law, such as international criminal law or international human rights law, Indian courts have not been as reluctant to refer to agreements to which India is not a party.Footnote 167
5 Conclusion
As the title suggests, this article has made an attempt to expound upon the application, misapplication and non-application of IHL in Indian courts. Norms of IHL have been applied on some occasions by the Supreme Court and High Courts. In cases where they have been cited, they have either performed an applicatory role, enabling courts to support their judgments on the basis of IHL norms, or a distinguishing role, providing a useful point of contrast from an allied concept in domestic law. The importance of IHL norms in the context of the cases has varied, being the substratum of the judgment in cases on one end of the spectrum, and peripherally relevant in cases on the other end. Judgments have also misapplied IHL norms, on account of a failure to appreciate the nuances of the law. Some cases provided good opportunities for courts to cite IHL norms. Yet, for a variety of reasons, these opportunities were missed and provide notable examples of the non-application of IHL. The challenge of the application of IHL norms still lies ahead.
Notes
- 1.
Mani 2001, p. 61.
- 2.
Ibid. See also Penna 1980, p. 181.
- 3.
- 4.
Sinha 2005, pp. 291–292.
- 5.
Subedi 2003, p. 353.
- 6.
Ganguly 2002, p. 1.
- 7.
Krishna 1998, p. 23.
- 8.
Rao 1988.
- 9.
See Poprzeczny 2010.
- 10.
Patankar 2009.
- 11.
Bhaumik 2007.
- 12.
See, for e.g., Article 51(c) (requiring the state to ‘foster respect for international law and treaty obligations’), Article 73 (stating that the executive power of the Union extends to the exercise of such rights, authority and jurisdiction as are exercisable by the Government of India by virtue of any treaty), Article 246 read with entries 10–19 of List I of the Seventh Schedule (granting the Union Parliament the exclusive power to legislate on matters relating to international law in India), Article 253 (enabling the Union Parliament to make any law for the whole or any part of India for implementing any treaty or decision made at an international conference) and Article 372(1) (stipulating that the laws in force in India prior to the commencement of the Constitution, including British common law rules governing the incorporation of international law into municipal law, shall continue in force until altered, repealed or amended).
- 13.
Blank 2012, pp. 18–19.
- 14.
Hegde 2010, p. 55. The judicial structure of India is unitary, with the Supreme Court as the highest appellate and constitutional court, followed by the twenty-four state High Courts. Each state has a High Court, which is the highest appellate court within the state (in some cases, two or more states share a High Court). The High Courts are linked to the Supreme Court within the federal system, which is the apex appellate and constitutional court in India. The Supreme Court and High Courts have far-reaching constitutional powers, including the power to ‘strike-down’ primary and secondary legislation. The common law doctrine of precedent holds sway, with the result that courts bind those that are below them in the judicial hierarchy. Rules of standing were liberalised considerably in the 1980s, thereby allowing public-spirited (not necessarily personally injured) citizens to move the Supreme Court and High Courts through ‘public interest litigation’ petitions.
- 15.
Gramophone Company of India v. Birendra Pandey (1984) 2 SCC 534 [5].
- 16.
(1996) 5 SCC 647 [15]. See also People’s Union for Civil Liberties v. Union of India (1997) 1 SCC 301 [22].
- 17.
Vishaka v. State of Rajasthan (1997) 6 SCC 241.
- 18.
However, the extent to which international law (whether treaties or customary law) can be relied upon in domestic courts without transformation into municipal law has its limits. It is questionable whether courts will permit a litigant to rely upon international law as a self-standing source of law, rather than as a tool to supplement existing constitutional or statutory provisions (Jolly George Varghese v. Bank of Cochin (1980) 2 SCC 360 [6, 7]). It is also unlikely that courts will rely on international law to justify restrictions on the rights of citizens (See Maganbhai Ishwarbhai v. Union of India (1970) 3 SCC 400 [80]; Basu 2011, p. 9014). Therefore, Indian courts do not subscribe to the doctrine of incorporation in its purest form (See State of West Bengal v. Kesoram Industries (2004) 10 SCC 201 [490–492]).
- 19.
Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field; Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea; Convention relative to the Treatment of Prisoners of War; Convention relative to the Protection of Civilian Persons in Time of War. The conventions were ratified by India on 9 November 1950.
- 20.
Protocol relating to the Protection of Victims of International Armed Conflicts (1977); Protocol relating to the Protection of Victims of Non-International Armed Conflicts (1977); Protocol relating to the Adoption of an Additional Distinctive Emblem (2005).
- 21.
Section 20 of the GCA repealed two statutes: the Geneva Convention Act 1911, passed by the Imperial Legislature (which sought to give effect to certain provisions of the Second Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea) and the Geneva Convention Implementing Act 1936, passed by the Indian Legislature pre-independence (which sought to discharge the obligations imposed by Article 28 of the Geneva Convention for the Amelioration of the Conditions of the Wounded and Sick in Armies in the Field 1929 insofar as this had not been done by the 1911 statute).
- 22.
Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction 1993.
- 23.
Long Title, The Weapons of Mass Destruction and their Delivery Systems (Prohibition of Unlawful Activities) Act 2005.
- 24.
Kanodia and Bhalla 2012, p. 1.
- 25.
I have considered cases in which IHL has played some meaningful role (but not necessarily the predominant or a significant role) in the judgment of the court. This naturally means that judgments which have made cursory references to IHL either in the description of parties’ arguments or in the substantive portion of the decision have been excluded from consideration in this section.
- 26.
AIR 1970 SC 329.
- 27.
Sakshena 2003, p. 19.
- 28.
Prabhakar 2003, p. 41.
- 29.
Constitution (Twelfth Amendment) Act 1962.
- 30.
Unlike states, union territories are under the direct administration of the central government. Goa was converted into a state in 1987.
- 31.
Rev Monterio v. State of Goa AIR 1970 SC 329 [1].
- 32.
Ibid.
- 33.
Article 136 of the Indian Constitution enables the Supreme Court, in its discretion, to grant ‘special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal’ in India (except under any law relating to the armed forces).
- 34.
This provision stipulates that protected persons who are in occupied territory shall not be deprived of the benefits of the Convention as a result of the occupation or annexation of the territory (see Fourth Geneva Convention, Article 47).
- 35.
This provision prohibits the deportation of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country (see Fourth Geneva Convention, Article 49).
- 36.
- 37.
Rev Monterio v. State of Goa AIR 1970 SC 329 [5].
- 38.
Ibid.
- 39.
Ibid [10].
- 40.
Ibid [10].
- 41.
Ibid [10].
- 42.
Ibid [10].
- 43.
Ibid [11].
- 44.
Ibid [13].
- 45.
Ibid [15].
- 46.
Article 42 of the Hague Regulations concerning the laws and customs of war on land of 1907 states that ‘[t]erritory is considered occupied when it is actually placed under the authority of the hostile army’.
- 47.
Rev Monterio v. State of Goa AIR 1970 SC 329 [21].
- 48.
Ibid [22].
- 49.
Ibid [23].
- 50.
Ibid [23].
- 51.
- 52.
Rev Monterio v. State of Goa AIR 1970 SC 329 [26].
- 53.
Ibid [25].
- 54.
Ibid [26].
- 55.
Ibid [15].
- 56.
- 57.
- 58.
Roy-Chaudhury 2010, p. 544.
- 59.
Ibid.
- 60.
The Indian Government initially refused to repatriate over 90,000 Pakistani prisoners of war on the basis that a renewal of hostilities could not be excluded (UK Ministry of Defence (2004), p. 205).
- 61.
Singh 2009, p. 533.
- 62.
(2005) 4 SCC 446.
- 63.
Article 32 provides for the right to petition the Supreme Court at first instance for the enforcement of fundamental rights under Part III of the Constitution. It also states that the Supreme Court has the power to issue directions, orders or writs for the enforcement of fundamental rights.
- 64.
Angrej Kaur v. Union of India (2005) 4 SCC 446.
- 65.
Ibid [2].
- 66.
Ibid [2].
- 67.
Ibid [4].
- 68.
Article 118 of the Third Geneva Convention relative to the treatment of prisoners of war.
- 69.
Fischer 2004, p. 364.
- 70.
Ibid, p. 365.
- 71.
UK Ministry of Defence (2004), p. 205.
- 72.
2012 GLH (1) 362.
- 73.
Ibid [3].
- 74.
Ibid [3].
- 75.
Agreement Between the Government of India and the Government of the Islamic Republic of Pakistan on Bilateral Relations (Simla Agreement) (2 July 1972), Clause VI.
- 76.
Jagjit Singh Arrora v. Union of India 2012 GLH (1) 362 [3].
- 77.
Ibid [1].
- 78.
Ibid [2].
- 79.
Ibid [9].
- 80.
Ibid [9].
- 81.
Ibid [24].
- 82.
Ibid [25].
- 83.
- 84.
Agreement Between the Government of India and the Government of the Islamic Republic of Pakistan on Bilateral Relations (Simla Agreement) (2 July 1972), Clause I (i).
- 85.
Article 21 of the Indian Constitution states as follows: ‘No person shall be deprived of his life or personal liberty except according to procedure established by law’.
- 86.
Article 73(b) of the Indian Constitution, which was referred to earlier, states that the executive power of the Union extends to the exercise of rights, authority and jurisdiction as are exercisable by the government of India by virtue of any treaty or agreement.
- 87.
See Damsrosch 1997, p. 19.
- 88.
Fuller 1978.
- 89.
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. US) (1984) ICJ Rep 392 (Jurisdiction and Admissibility).
- 90.
Treaty of Friendship, Commerce and Navigation between the United States and Nicaragua (21 January 1956), Article XXIV, para 2. Another example is Article 1 of the Optional Protocol to the Vienna Convention on Consular Relations, concerning the compulsory settlement of disputes. This compromissory clause reads as follows: ‘[d]isputes arising out of the interpretation or application of the Convention shall lie within the compulsory jurisdiction of the International Court of Justice and may accordingly be brought before the Court by an application made by any party to the dispute being a Party to the present Protocol’.
- 91.
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia)(1996) ICJ Rep 595 (Preliminary Objections).
- 92.
Convention on the Prevention and Punishment of the Crime of Genocide 78 UNTS 277 (9 December 1948), Article IX.
- 93.
Agreement Between the Government of India and the Government of the Islamic Republic of Pakistan on Bilateral Relations (Simla Agreement) (2 July 1972), Clause I (i).
- 94.
Ibid, Clause I (ii).
- 95.
D Mahapatra (2012) SC stays Gujarat HC fiat to Centre to move ICJ on 1971 POWs in Pakistan, 3 May 2012, The Times of India.
- 96.
Ibid.
- 97.
Mohan and Sahni 2012, p. 6.
- 98.
Goswami 2012, p. 127.
- 99.
State v. Mohammed Afzal (2003) 107 DLT 385 [1, 12].
- 100.
State v. Najot Sandhu AIR 2005 SC 3820 [3].
- 101.
The special court was constituted under Section 23 of the Prevention of Terrorists Activities Act 2002.
- 102.
(2003) 107 DLT 385.
- 103.
Section 121 of the Indian Penal Code 1860 reads as follows: ‘Waging, or attempting to wage war, or abetting waging of war, against the Government of India—Whoever wages war against the Government of India, or attempts to wage such war, or abets the waging of such war, shall be punished with death, or imprisonment for life and shall also be liable to fine. Illustration. A joins an insurrection against the Government of India. A has committed the offence defined in this section.’
- 104.
Chandrachud (2011).
- 105.
State v. Mohammed Afzal (2003) 107 DLT 385; State v. Najot Sandhu AIR 2005 SC 3820; State of West Bengal v. Mohammed Jamiluddin Nasser MANU/WB/0007/2010; Ajmal Kasab v. State of Maharashtra AIR 2012 SC 3565.
- 106.
State v. Mohammed Afzal (2003) 107 DLT 385 [181].
- 107.
Ibid [182].
- 108.
Ibid [182].
- 109.
Ibid [183].
- 110.
Ibid [183].
- 111.
Ibid [185].
- 112.
Ibid [190].
- 113.
Ibid [186–187].
- 114.
Ibid [188].
- 115.
Ibid [189].
- 116.
Ibid [190].
- 117.
Ibid [190].
- 118.
State v. Najot Sandhu AIR 2005 SC 3820.
- 119.
Ibid [(xi)].
- 120.
This conclusion has been cited in several subsequent cases. See, for example, Mohammed Afzal Kumhar v. State (2009) 158 DLT 549; State of Maharashtra v. Ajmal Kasab AIR 2011 Bom 648.
- 121.
The illustration accompanying Section 121 of the Indian Penal Code 1860 is as follows: ‘Illustration. A joins an insurrection against the Government of India. A has committed the offence defined in this section.’
- 122.
State v. Najot Sandhu AIR 2005 SC 3820 [(xi)].
- 123.
Ibid.
- 124.
Ibid.
- 125.
See, generally, Sivakumaran (2012).
- 126.
AIR 2005 SC 2920.
- 127.
See Long Title, Illegal Migrants (Determination by Tribunals) Act 1983.
- 128.
Illegal Migrants (Determination by Tribunals) Act 1983, Section 4.
- 129.
Section 1(2), The Foreigners Act 1946.
- 130.
Sarbananda Sonowal v. Union of India AIR 2005 SC 2920 [2].
- 131.
Ibid.
- 132.
Ibid [32].
- 133.
Ibid [32].
- 134.
Ibid [32].
- 135.
Ibid [32].
- 136.
Ibid [38].
- 137.
Ibid [42].
- 138.
See, for e.g., Madha v. Hoskot v. State of Maharashtra AIR 1978 SC 1548 [20]; Prem Shankar Shukla v. Delhi Administration AIR 1980 SC 1535 [4]; Bachan Singh v. State of Punjab (1982) 3 SCC 24 [141–143, 231]; Indian Express Newspapers v. Union of India AIR 1986 SC 515 [26]; Nilabati Behera v. State of Orissa AIR 1993 SC 1960 [23]; D C Saxena v. Union of India AIR 1996 SC 2481 [31]; TMA Pai Foundation v. State of Karnataka AIR 2003 SC 355 [228]; Swamy Shraddananda v. State of Karnataka (2007) 12 SCC 288; Selvi v. State of Karnataka AIR 2010 SC 1974 [81].
- 139.
See, for e.g., Madhu Kishwar v. State of Bihar AIR 1996 SC 1864 [9–11, 13]; Vishaka v. State of Rajasthan AIR 1997 SC 3011 [12, 13]; Githa Hariharan v. Reserve Bank of India AIR 1999 SC 1149 [14, 22]; Municipal Corporation of Delhi v. Female Workers (Muster Roll) AIR 2000 SC 1274 [34]; Seema v. Ashwani Kumar AIR 2006 SC 1158 [2]; National Insurance Co v. Deepika (2009) 6 MLJ 1005 [8]; All India Lawyers Union (Delhi Unit) v. Government of Delhi (2009) 172 DLT 319 [33].
- 140.
The Bar Council of India does not include IHL in the list of compulsory subjects for university LLB courses (see http://www.barcouncilofindia.org/wp-content/uploads/2010/05/BCIRulesPartIV.pdf accessed 24 August 2013). See also the syllabi of the LLB Programmes at the following universities, which do not contain an IHL component: University of Calcutta (available at: http://www.caluniv.ac.in/academic/law.htm accessed 24 August 2013), University of Mumbai (available at: http://www.glcmumbai.com/uploads/notices/124_file.pdf accessed 24 August 2013), University of Allahabad (available at: http://www.allduniv.ac.in/images/course/syllabus/law/syb-law-llb3years.pdf accessed 24 August 2013), University of Karnataka (available at: http://lawschool.cmr.ac.in/application/362-Syllabus%203 %20Years.pdf accessed 24 August 2013).
- 141.
Rev Monterio v. State of Goa AIR 1970 SC 329.
- 142.
Sarbananda Sonowal v Union of India AIR 2005 SC 2920.
- 143.
Jagjit Singh Arrora v. Union of India 2012 GLH (1) 362.
- 144.
State v. Najot Sandhu AIR 2005 SC 3820.
- 145.
1999 Cri LJ 919.
- 146.
Ktaer Abbas Habib v. Union of India 1999 Cri LJ 919 [9].
- 147.
Rev Monterio v. State of Goa AIR 1970 SC 329.
- 148.
- 149.
AIR 2011 SC 2839.
- 150.
- 151.
Sundar 2006.
- 152.
Nandini Sundar v. State of Chattisgarh AIR 2011 SC 2839 [42].
- 153.
Ibid [59].
- 154.
Ibid [61].
- 155.
Ibid [61].
- 156.
The right to life is embodied in Article 21 of the Indian Constitution, which provides that ‘[n]o person shall be deprived of his life or personal liberty except according to procedure established by law’.
- 157.
Nandini Sundar v. State of Chattisgarh AIR 2011 SC 2839 [64].
- 158.
Ibid [75].
- 159.
Varadarajan 2007.
- 160.
People’s Union for Human Rights v. State of Assam AIR 1992 Gau 23.
- 161.
The proclamation was made under Article 356 of the Indian Constitution.
- 162.
Armed Forces (Special Powers) Act 1958 and the Assam Disturbed Areas Act 1955.
- 163.
People’s Union for Human Rights v. State of Assam AIR 1992 Gau 23 [13].
- 164.
Ibid [20].
- 165.
Ibid [20].
- 166.
Ibid [64].
- 167.
See, for example, the Supreme Court’s invocation of the Rome Statute in Imtiyaz Ahmed v. State of Uttar Pradesh (2012) 2 SCC 688 and the Second Optional Protocol to the International Covenant on Civil and Political Rights in Swamy Shraddananda v. State of Karnataka (2007) 12 SCC 288.
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Chandrachud, C. (2014). International Humanitarian Law in Indian Courts: Application, Misapplication and Non-application. In: Jinks, D., Maogoto, J., Solomon, S. (eds) Applying International Humanitarian Law in Judicial and Quasi-Judicial Bodies. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-008-4_14
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