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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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law rules governing the incorporation of international law into municipal law, shall continue in force until altered, repealed or amended).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%203Â %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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