Indian Constitution relevant provisions answer writing

Introduction	jurisprudence
relevant case laws	Vishaka vs state of Rajasthan Krishna sharma vs state of WB state of WB vs Kesoram
present problem	question related
conclusion	decision as per our reasoning

International law (also known as public international law and the law of nations) is the set of rules, norms, and standards that states and other actors feel an obligation to obey in their mutual relations and generally do obey. In international relations, actors are simply the individuals and collective entities, such as states and international organizations, which can make behavioral choices, whether lawful or unlawful. Rules are formal, often written expectations for behavior and norms are less formal, customary expectations about appropriate behavior that are frequently unwritten. It establishes norms for states across a broad range of domains, including war and diplomacy, economic relations, and human rights.

India has been a major contributor in the field of international law especially in the fields of human rights laws, environmental law, arbitration law, and trade law. The domestic laws in India have corresponded with the international principles and norms in order to fulfill the international obligations which it has to all other ratifying nations.

International law in Indian context is divided into two parts:
1. Pre – constitutional period
2. Post – constitutional period

Pre – Constitutional period

i) British domestic laws and the customary rules of international law:
Subject to the condition that customary rules of international law should not be inconsistent with that of the domestic laws in the British statutes, the British treats the customary rules of international law as a part of their own domestic laws.

ii) British domestic laws and rules laid down by the international law treaties;
According to British laws, there are some exclusive treaties which require the approval of the British parliament for its enforcement. This consent can be given directly or such treaties can be adopted in the state laws by the parliament with the help of statutes.

Post – Constitutional period

Preamble

The preamble lays down the outlines the objectives of the whole constitution. It contains some specific basic values and philosophies which India as a country guarantees to its people and aims to accomplish as a nation.Sovereignty basically implies independence of a nation and the external sovereignty of India signifies that it can acquire any foreign territory and also give up any part of the Indian territory subject to some limitations mentioned in the constitution.

General principles relating to international law mentioned in the constitution;

The most relevant Article related to international law in the constitution is Article 51. According to the provisions in this Article, the state has the responsibility to promote international peace and security in the nation and maintain just and honourable relations with other nations. The Article specifically mentions that the state shall respect all the provisions related to international law and shall make its best efforts to fulfill its treaty obligations and also encourage the settlement of international disputes with the help of arbitration.

This Article tells the state to respect international law but does not explicitly make it a part of the Indian laws. Article 51 of the constitution is a directive principle which is to be understood with Article 37 of the Constitution of India. Article 37 mentions that the provisions contained in part IV of the constitution shall not be enforceable in any courts nevertheless the principles laid down are crucial in the governance of the country and its the duty of the state to ensure that these principles are applied while making laws.

In case of Keshavanand Bharti v/s state of Kerala (1973), Honorable Chief Justice Sikri said when there is a situation where the language of the municipal law is vague or contrary then the court must take the support of the parent international authority of that particular municipal law. This is because Article 253 of our constitution gives exclusive power to our parliament to make laws for giving effect to any treaty, convention or agreement with any country or any decisions made at any international conference.

International law and the powers of the Executive:

According to the constitution, the executive has the power to make laws by the virtue of Article 53,73 and 77. Article 53 says that the executive power is conferred to the president of India and the president shall exercise them directly in accordance with the constitution of India or through the officers subordinate to him. When exercising his power directly, the president should take the advice of the council of ministers. Although all executive functions are said to be executed in the name of the president they are subject to the provision that they must not infringe the powers of the legislature and the judiciary. Also, every contract entered into by India shall be made in the president’s name.

As mentioned in Article 73, the executive power of the union is extended to all the matters with respect to which the parliament has the power to make laws subject to the provisions of the constitution or to any other laws made by the parliament. As mentioned in Article 253, the parliament has the power to legislate and pass laws in order to fulfill international obligations.

Treaty-Making Power under the constitution of India:

Since Article 73 of the Constitution of India puts no restriction on the powers of the executive with relation to international law, this allows the executive to enter into any type of treaty obligations. Thus the supreme court said that international law forms a part of the domestic law in India except when there is inconsistency with the provisions of the domestic law. Hence we can say that the approval of the parliament is only considered necessary for treaties that infringe the rights of the citizens, or which require a new change in the existing municipal law.

Therefore, the Supreme Court held that international law forms part of municipal law except when they are inconsistent with the provisions of municipal law. To sum up, the current position in India is that approval of the Parliament is required only for treaties that affect the rights of the citizens or which require a new, or change in existing municipal law.

Legislative powers of the government with relation to international law;

Relating to international law Article 253 is the specific Article that gives the parliament the special power legislate and pass laws in order to implement international agreements.

According to Article 253, the parliament has the sole right to make laws for the whole or any part of the territory of India with the motive of executing an international treaty, agreement or convention with other countries or any decision made at any association or conference.

The power under Article 253 overrules even the said provisions in part XI, Chapter 1 of the constitution which distributes powers between the union and the states. Thus Article 253 empowers the parliament to pass laws on matters mentioned in list II of schedule VII in order to execute international treaties, agreements and conventions and the parliamentary power in the matters of international law can be said to be complete. Also, the residuary legislating power also lies with the parliament which empowers the parliament to legislate on matters which are not listed in Schedule VII. Moreover, Article 2 gives the parliament the power to admit foreign territories into the union by the way of the law. For example, the addition of the state of Sikkim by the 35th (1974) and 36th (1975) constitutional amendments.

Fundamental Duties:
Similarly, Article 51 A of the constitution of India gives force to Article 29(1) of the UDHR which mentions the duties of the citizens towards the state which help to build the nation and understand the importance of individual responsibility.

Relevant Case Laws;

Vishaka vs State of Rajasthan

It all started when Banwari Devi, a social worker in a programme to stop child marriages, stopped a chid marriage that was taking place in an influential Gujjar family. While Banwari Devi did a commendable job despite protests against her, the Gujjars were hell-bent on taking revenge. One Ramakant Gujjar along with five of his men gang-raped her in a brutal manner in front of her husband. Her subsequent attempt to file a police case was met with apathy for a long time and once she succeeded in doing so, she faced further stigma and cruelty. The trial court acquitted the accused citing lack of evidence but Banwari Devi, along with a sympathizer, approached the Supreme Court by way of a writ petition which eventually led to an immensely important judgement.

issue;

Whether sexual harassment at the Workplace amounts to a violation of Rights of Gender Inequality and Right to Life and Liberty?

Whether the court could apply international laws in the absence of applicable measures under the existing?

Whether the employer has any responsibility when sexual harassment is done to/by its employees?

judgement:

The Supreme Court was to delve into the deep-rooted gender inequality in Indian society which manifests itself in the form of violence against women (in the form of sexual harassment at workplaces and rape). The Supreme Court while looking into the issue also had to decide whether it was willing to lay down elaborate guidelines to deal with the same. The Court rose to the occasion and did come up with several guidelines to stop sexual harassment at workplaces and these guidelines are popularly known as Vishakha Guidelines.

The Court defined sexual harassment as any physical touch or conduct, any unpleasant taunt or misbehaviour, showing of pornography and asking for any kind of sexual favours.

-It was held that sexual harassment at the workplace should be informed, produced and circulated. Every act of harassment shall be dealt with in an appropriate manner which shall include criminal proceedings and disciplinary action.
-For the time-bound and effective redressal of complaints, a robust mechanism should be in place at workplaces.
-A complaints committee should be put in place which should be headed by a woman and more than half of its members should also be women.
-In order to prevent any pressure from the higher-ups at the workplace, a third party like an NGO should be involved.
Moreover, concrete steps must be taken to create awareness at the workplace as to what sexual harassment is and how to approach appropriate people if someone is harassed at the workplace.

In Krishna vs State of WB, the Calcutta High Court said that when there is a dispute between municipal law and domestic law, the courts shall try to make a harmonious construction between the two laws.

In Keshavnanda Bharti vs State of Kerala, it was said that when there is a situation where the language of the municipal law is vague or contrary then the court must take the support to the parent international authority of that particular municipal law. This is because art. 253 gives exclusive p[ower to our parliament to make laws for giving effect to any treaty, convention or agreement with any country or any decisions made at any international conference.

In State of WB vs Kesoram Industries, re-emphasized that India obeys the doctrine of dualism and stated that any treaty has been entered into by India cannot become the law of the land unless the parliament passes a law of the land unless the parliament passes a law under as under art. 253 of constitution.

Present Problem:

Explain the relevant provisions of India’s Constitution which empower the Union Government in signing ratifying as well as implementing the treaty obligations A country P is a party to the Convention on the Elimination of All Forms of Discrimination Against Women, 1979, however, it has not Passed a law to protect the women Against sexual harassment at workplaces. Can the Supreme Court of the comply enforce the Convention obligations in case a women comes before it to get justice as she was sexually harassed at workplace. Discuss assuming that the Supreme Court of P perhaps the same jurisdiction as India?

Answer; Vishaka vs State of West Bengal, sexual harassment at workplace is to be prevented , the country P can seek remedy against such act.