India must be aware of emerging international law: CJI
CJI TS Thakur stressed that in the ever-shrinking world, "we must be aware of the international law".
New Delhi: Chief Justice of India TSThakur on Saturday stressed that in the ever-shrinking world, "we must be aware of the international law" and deal with the emerging scenarios.
"We must be aware of what is happening in the world, prepare for it with an ability to deal with them," the Chief Justice said in his inaugural address at a seminar on 'Principles of The Engagement of Domestic Courts with International Law' held here.
The seminar was organised by the regional chapter of the International Law Association.
Thakur said in the globalised world, political borders may still have some relevance but the economic borders have become irrelevant, and at the speed and dimension with which international laws were emerging and shaping, they had gone beyond the comprehension of any nation.
Referring to the conflict of jurisdiction of different countries, the Chief Justice said decisions of the courts in one country would lose their efficacy unless the regimes in other countries respected them.
However, he said the duty of the Indian state to follow or conform to the international law has to be read harmoniously with the provisions of the Constitution and the prevailing laws.
Giving an example, Thakur said the order of the child`s custody in favour of an NRI father could not be mechanically enforced by the Indian courts.
"US courts have a different approach. Can Indian courts ignore to a situation where the mother of a child was not represented in the US court and was incapable of doing so on account of paucity of means," the Chief Justice said, pointing out that in such a situation, the welfare of the child would weigh with the Indian court.
He said the Indian courts would not be guided by Hague (Child) Abduction Convention that provides for an expeditious return of the child abducted by a parent and taken to another country.
Referring to the areas like ocean, space, refugee crisis and environment where international law has an important role to play, he said emerging economies including India could not be penalised for the `greenhouse effect` as it is the developed countries like the US that have been emitting carbon dioxide and must pay under the principle of `polluter pays`.
"If you have an international law that polluter pays, then then those who have polluted must pay," he said.
In his address, apex court judge Justice AKSikri said that three situations could ensue in respect of international law - one where India has signed the international treaty and accordingly enacted a law giving it legal teeth, second where India has signed an international treat but enacted no domestic law to back it and thirdly it has not signed an international treaty and nor is there a domestic law.
He said that in later two situations it was not difficult for the Indian courts to take best elements from such international treaties for the advancement of human rights by taking recourse to Article 21 of the constitution guaranteeing protection of life and personal liberty.
However, in the economic sphere, the domestic law would prevail over the international treaties when they are in conflict, he said.
Eminent jurist Soli Sorabjee, referring to Article 51(1)(c) (providing for fostering respect for international law and treaty obligations) and Article 253 (Legislation for giving effect to international agreements), said that more than six and half decades back, the framers of Indian Constitution had recognised the importance of international laws and treaties and the need to honour them.
While Justice Pradeep Nandrajog of Delhi High Court delivered the welcome address, senior counsel Pravin H. Parikh gave the vote of thanks.