Thank you, Ankit, Professor Rajkumar, Ambassador Rajamony, Zena Sorabjee, Zia and friends.
I have begun to look forward to my lectures at the Jindal Global University, and as always, I'm delighted to be here. I'm also honoured to be speaking in remembrance of Mr Sorabjee, who played a critical and pivotal role in my development as a lawyer and as a human being.
As many of you may know, I began my career with Soli. My earliest memories are of him as a hard taskmaster, always forcing his juniors to their limits. He brought out the best in us. Observing him, I learned how to address the court, how to master one’s brief, how to assist in matters as an Officer of the Court, and not a mere spokesman for one’s client.
I look back fondly at a day not too long ago when I was prepared to open arguments before the Supreme Court in the privacy case. I was reassured by Soli who sat beside me. I owe so much to his mentorship, and it was an honour to argue that case with his blessing.
Soli lived with an unwavering commitment to his profession, with love for music and literature, and always guided by the belief that a successful future for India depended on securing rights to its citizens. He will live long in our collective memory, especially for his tremendous contribution to our jurisprudence and free speech and the freedom of the press. While his loss must be mourned, his great life must be celebrated.
The beginning of this year saw strange happenings. A lady whose father was reminded by her cousin in the early 1950s that there is no place for women in the law, but the young girl was called to the bar in 1956. In 1976, she became the tenth woman to be appointed as a Queen's Counsel. She was the third woman to be appointed as a High Court judge in 1979, following Elizabeth Lane and Rose Heilbron. She was responsible for recommending a no-fault divorce, but the Divorce, Dissolution and Separation Bill reached the House of Lords in the days following her death. I speak about Dame Margaret Booth who died on 1st January this year. On that same day, a mathematician who was a specialist in number theory and representation theory, who made several contributions at King's College London, a member of the Institute for Advanced Study, died at the age of 73. He was the eminent mathematician, Colin Bushnell.
On that very same day, a French Resistance member and a Holocaust survivor died. She survived the German concentration camp at Ravensbrück. She was an extraordinary French stateswoman. On that same day, Mark Eden, who was a famous English actor, died. In fact, someone whose music may have attracted Soli, George Geddes, who was a famous American singer, songwriter and actor, also passed away. We lost a famous French writer, Christian Massé, on the same day – so many passed away on the first day of that year, this year.
‘April is a cruel month,’ said the poet. On that day, a day, which I do not wish to remember, an eminent Indian cinematographer, K.V. Anan, a famous Indian actor, a young bodybuilder Jagdish Lad, passed away. When the news of Soli passing away reached, I remembered the lines of George Herbert:-
“Death, thou wast once an uncouth hideous thing,
Nothing but bones,
The sad effect of sadder groans:
Thy mouth was open, but thou couldst not sing.
Therefore we can go die as sleep, and trust
Half that we have
Unto an honest faithful grave;
Making our pillows either down, or dust.”
Strangely, on that very day, Soli kept company with someone who came very close to his musical tastes, but in a slightly different genre of music. Anthony Edward Payne, an eminent composer, and musicologist was the one who completed Edward Elgar’s 3rd symphony.
There is an element of modernised nostalgia when you speak about Soli. If Elgar’s 3rd symphony was incomplete at the time of his death in 1934, and all that which was available to Anthony Payne was 130 pages of sketches, yet in 1997 a musical called ‘The Sketches for Symphony No. 3’ was published.
Great teachers not only contribute by personal example, but they also leave sketches which have to be filled up hopefully by those who either have had the privilege of working with them, or for that matter of fact have been inspired by them.
There are three similarities between Anthony Payne and Soli. All the three liked Thomas Hardy; Tennyson, the poet; and Philip Edward Thomas, the Welsh novelist.
Soli solely strode across the corridors of court, always poised to make points tellingly, with precision and mobility. He will be always special for those who were influenced by his multi-faceted personality, elegance, dignity, and unwillingness to abandon his principles.
I remember Edward Thomas, whose famous words are so apt for Soli –
“Out of us all that make rhymes, will you choose sometimes, as the winds use a crack in a wall or a drain, their joy or their pain to whistle through - Choose me. You English words?
It looks as if the next few lines were the answer from Soli –
“I know you. Your lightest dreams tough as oak, precious as gold, as poppies and corn, or an old cloak. Sweet as our birds to the ear.”
Soli was a protagonist. He could adopt the role of any client, put himself in the shoes of that client, and he could blend ruthlessness with wit. He was close to his roots, which was that he was truly an internationalist. He will always be remembered as one of the greatest sons of India, one of the greatest lawyers of all times, and someone who could constantly inspire.
On the occasion of one of his birthdays, which was celebrated by all the leading members of the bar, the tributes which he elicited was something unique, special.
And he was an artist-craftsman, who created individually every case, every point, and he covered all spectrums of litigation and constitutional thought. His legacy is enormous, which will inspire many further generations of lawyers. Soli was not shy of controversy. He was a great human rights campaigner. He was not a mere advocate, but a crusader for the high ethical standards of the legal profession. When he argued the Bhopal Gas case for a review - an event which was justified as years of neglect and intransigence of government showed it, it matched the effort of Sir Harold Evans and my friend Marjorie Wallace in the campaign for the families of children who suffered birth defects as a result of the drug, Thalidomide.
This occasion is rendered so memorable by the distinguished presence of Zena Sorabjee, a person who inspired and gave me a book called ‘A Prescription for Living.’ The book is one which has stood the test of time, and is so wisely written out of personal experience and conviction by a leader of the Baha'i faith. Zena is the person who actually makes the book come alive. Her presence on this occasion will always be treasured by me as a benediction both from Soli and her. Thank you, Zena for taking the trouble to be present. It has been a singular honour to deliver this lecture before you.
Zia, I can only say that Soli was not simply proud, but I think you added to his level of confidence and breeze. Only someone who was close to him would know how much he would remember you at slightly odd moments of reaching out for something which you would quickly remember. A very special daughter for a very special father, and I always remember Yeats’ prayer for his daughter; I think it completely fits you.
I now turn to this topic at hand. I'm very honoured that we have Professor Stephen Marks, somebody whose writings I have followed assiduously over a period of time and I felt absolutely privileged to see him a few moments before this function started.
Professor Marks is one of the few ideologues in the present day world who has been able to put together a synthesis, a syntax about the right to development, fundamental human rights, cultural rights, and the right to be free from poverty. He has actually taken unique positions in his writing, and he has brought to bear how important it is for students of law to know about the character of the right to development in international law. Apart from being a scholar on public health, and his views during the raging pandemic, he is a model of inspiration and great intellectual rigour. I mentioned him in the forefront, because nothing would be complete without acknowledging his contribution to the subject at hand.
Like many students, I've found international law fascinating. When I studied it over 40 years ago, I read Oppenheim, Grotius, and Bentham with great interest. Brilliant as the subject was, there was a feeling that knowledge of international law would be of very little use in legal practice. It was believed that real lawyers must know evidence, interpretation, procedure, they must have a command over the constitution, over company and criminal law, contracts and torts. International law was for the academy, not the litigator.
I want to share this with all of you. Nothing could be further from the truth. In practice, lawyers and courts regularly engage with international law in some form. This is as true in India as it is in the leading legal jurisdictions of the world. India’s interactions with international law do not come as a surprise when one recalls that the very creation of our Republic was an outcome of international law.
The Union of India could be formed in 1947 over 560 princely states, each of them sovereign nations and international law exceeded certain powers to the dominion of India. These acts were followed by proclamations issued by the sovereign rulers of most of these states in 1949 accepting the Constitution of India in its entirety.
In fact, it was on this very day, 13th August 1814 that the Dutch ceded control over Cochin to the British Empire through another instrument of international law, the Convention of London. International and domestic or municipal law interact with one another in several ways. I quote a few examples. Courts frequently turn to international conventions whenever they are called upon to protect individual liberties. The same is true in matters involving rights to intellectual property.
Courts are also called upon to interpret the terms of bilateral investment treaties between two nations while enforcing awards made in investor-state arbitrations. Principles of public international law, such as territoriality and sovereignty, interact with private international law when domestic courts issue worldwide asset freezing orders, thereby controlling the actions of defendants in foreign countries. Such issues also arise in cases of Internet defamation, where courts are required, for example, to determine whether they can order a French company to take down web pages in France.
Interaction with international instruments of what is called ‘soft law’ is also common. Courts are for instance called upon to construe the International Bar Association’s guidelines on conflict of interest in international arbitration while hearing challenges to arbitrators. Clearly, the scope of interaction between domestic and international law is vast. This is only natural considering the increasingly connected world we live in. Globalisation demands constant engagement between states and their legal systems. How are we to view these engagements, or more specifically what is the relationship between international law and domestic or municipal law when it comes to public international law with which today's topic is concerned? Two leading theories offer answers.
As some of you would no doubt have studied, the first of these is the dualist theory, often called pluralism. It suggests that international municipal law are different systems of law that regulate different subject matter. International law governs the relation between states. Municipal law applies domestically, governing the relations of citizens with each other and with the state. Neither law has any power to alter the other. Where the two are in conflict, municipal law prevails. If international law is to apply domestically, it can do so through domestic law. For example, before the United Kingdom left the European Union, the EU treaties and law prevailed over UK law. This was not because international law automatically applied domestically, it was because of domestic law. The European Communities Act of 1972 permitted it to do so. A piece of domestic legislation thus enabled international legal instruments to apply domestically and prevail over national laws.
The second approach is called monism, expounded by great jurors such as Hans Kelsen. For Kelsen, international and domestic law did not operate in distinct spheres. They were really a part of the same system of norms. Argued in favour of the supremacy of international law in all spheres, including domestic law. He distrusted the state as a protector of human rights and believed international law to be the best moderator of human affairs.
India has always leaned towards the dualist approach, and notable illustration can be found in the judgement of the Supreme Court in Jolly George Verghese Vs Bank of Cochin. The appellant was ordered to be arrested and detained in civil prison for his failure to pay certain dues to the respondent bank. The appellant argued that provisions of Code of Civil Procedure which permitted detention in civil prison were in conflict with India's obligations under the International Covenant on Civil and Political Rights. Article 11 of the ICCPR provided that no one shall be imprisoned merely on the grounds of inability to fulfil a contractual obligation.
Faced with this apparent conflict with Indian law, the appellant argued that the ICCPR should prevail. Speaking for the court, Justice Krishna Iyer rejected the argument, noting that until the municipal law is changed to accommodate the covenant, what binds the court is the former not the latter. A. H. Robertson in Human Rights in National and International Law, rightly points out that international conventional law must go through the process of transformation into the municipal law before the international treaty can become an internal law.
Justice Krishna Iyer also referred to an earlier decision of the Kerala High Court which dealt with the same issue, that is the conflict between the provisions of the ICCPR and the Code of Civil Procedure. This was the case of Xavia Vs Canara Bank, where the Kerala High Court held the remedy for breaches of international law in general, is not to be found in the law courts of the state, because international law per se, has not the force or authority of civil law till under its inspirational impact, actual legislation is undertaken.
Following what is called the ‘Doctrine of Transformation,’ these decisions seem to place India squarely in the domain of dualist theory. International law needs to go through a process of transformation before it can have legal effect in India. Once transformed, it is not international law at all. It is in fact domestic law, and can be construed and applied as such. The transformation Justice Krishna Iyer spoke of can be undertaken under Article 253 of the Constitution, which enables Parliament to make laws to implement any treaty, agreement or convention with any other country or countries, or any decision made at any international association, or other body.
Parliament also has exclusive authority under the Seventh Schedule to legislate on matters concerning the United National Organisation, the implementation of decisions made at international conferences and to enter and implement treaties and agreements with foreign countries. However, as the executive’s bar is coextensive with that of Parliament, decisions on such matters can also be made by the union executive provided they do not restrict or infringe citizens’ rights or modify any existing legislation.
It is important for us to bear in mind that the doctrine of incorporation does not prevent courts from making reference to India's obligations under international law. Courts can, and frequently do, rely on international law as an aid to the construction of domestic law.
This is because Article 51 - a directive principle that requires the state to foster respect for international law and treaty obligations in the dealing of organised people with one another.
As Chief Justice Sikri said in his momentous judgement, it seems to me that in view of Article 51 of the directive principles, this court must interpret language of the constitution, if not intractable, which is after all a municipal law in light of the United Nations Charter and solemn declaration subscribed to by India.
Actually, it was a 1948 charter, which persuaded the Supreme Court Paropy to locate the basic structure of an immutable character.
Perhaps the most famous instance of the Supreme Court using international law to interpret domestic law is the case of Vishaka. The Supreme Court laid down guidelines to prevent sexual harassment and abuse at workplaces. In the absence of any domestic law in the field, the contents of the international conventions were in the courts words, “significant for the purpose of interpretation of the guarantee of gender equality, right to work with human dignity in Articles 14, 15,19(1)(g), and 21 of the Constitution.” Clearly, even with the decision in Vishaka, international law did not apply properly. It had to be read into domestic law, thus forming a part of it. As such, it was really domestic law that the court was applying and enforcing.
Our jurisprudence on the subject is not without conflict. As a substitute to the doctrine of transformation, international law offers us the doctrine of incorporation. Under this doctrine, international law is to be considered a part of the domestic law, and enforced as such. International law is deemed to have been incorporated into domestic law so long as it is not inconsistent with any domestic law. Conformity with the dualist theory remains only insofar as the supremacy of domestic law is untouched.
In India's case, this would mean the constitution would always reign supreme - for neither domestic nor international law can stand in its way. Support for the doctrine of incorporation is found most famously in Gramophone Company of India Vs Birendra Bahadur Pandey, an excellent exposition of the doctrine by Justice Chinnappa Reddy requires to be quoted at some length:
“There can be no question that nations must march with the international community and the municipal law must respect rules of international law, even as nations respect international opinion. 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 legislators in making the laws may not be subjected to external rules, except to the extent legitimately accepted by the constituted Legislators themselves. The doctrine of incorporation also recognises the position that the rules of international law are incorporated into national law and considered to be a part of the national law unless they are in conflict with an Act of Parliament. Comity of nations or no, municipal law must prevail in case of conflict. 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. National Courts being organs of the National State and not organs of international law must perforce apply national law if international law conflicts with it. But the courts are under an obligation within legitimate limits to so interpret the municipal statute so as to avoid confrontation with the comity of nations for the well-established principles of international law. But if conflict is inevitable, the latter must yield.”
While decisions in support of the doctrine of transformation have not been overruled, the Supreme Court seems to have moved firmly in the direction of the doctrine of incorporation.
Most recently, that doctrine finds acceptance in the decisions in NALSA, where the Supreme Court upheld the rights of transgenders, and then Puttuswamy where the court found that there was a right to privacy under our Constitution. It must be stressed, however, that even while supporting the doctrine of incorporation, the Supreme Court does not say that international law is directly effective or enforceable in India. Courts only use international law as an aid to interpret domestic law at times to fill gaps, and at times to find implied meaning.
In the case of the Gramophone Company of India, the Supreme Court used international conventions to interpret the word ‘import’ in the Copyright Act. In NALSA and Puttuswamy the same was done to interpret rights in Part 3. As such, it is really domestic law that the courts continue to apply, just as they did under the doctrine of transformation.
Acceptance of the doctrine of incorporation does however have ramifications in legal practice. As Ian Brownlee notes, that doctrine of incorporation represents a practical rather than theoretical policy in the courts. In my view amongst its greatest practical benefits is in matters of evidence. Since international law is deemed to have been incorporated into domestic law, courts can safely treat it as law and not as fact.
In the UK, India, and several other common law jurisdictions, foreign law, that is the domestic law of a foreign nation is not law. It is fact. An English judge is not, for instance, considered competent to apply French law as he would English law. Nor are English lawyers competent to argue French law as though they were French lawyers.
Questions regarding what the law of a foreign nation says on an issue are therefore questions of fact that must be proved through evidence. This has been the settled position for centuries, one that can be traced back to Lord Mansfield's famous judgement in Mostyn Vs Fabrigas in 1774.
In India courts are required under the Evidence Act to take judicial notice of all acts of the UK Parliament, The laws of all other nations must be proved. In practice, however, Indian courts tend to be more flexible, and often take judicial notice of legislation and court rulings from most foreign nations, unless the meaning is disputed.
The case is the same before international courts, which treat domestic law as fact. International courts do not take judicial notice of a state's domestic laws. They require evidence of it. Borrowing from the civil law tradition where the process is not adversarial, judges may also undertake their own research to determine what a nation's domestic law says on an issue.
When it comes to the application of international law in Indian courts, however, the case is different. Courts will take judicial notice of international law. No expert evidence can still be sought to settle disputed questions. And in construing international law, courts will be as the Supreme Court rightly noted in NALSA, guided by Articles 31 and 32 of the Vienna Convention on the Law of Treaties. Courts must interpret treaties in good faith and in light of their object and purpose. They may also rely upon connected instruments, subsequent practice in the application of the treaty, preparatory work of the treaty and the circumstances of its conclusion. Indian courts also rely upon commentaries by leading authorities in international law.
In a recent case involving the application of the Genocide Convention, the International Court of Justice quoted its advisory opinion rendered in 1951. And I quote those words:
“In such a convention, the contracting states do not have any interest of their own. They merely have one and all the common interest, namely, the accomplishment of those high purposes, which are the raison d' être of the convention.”
Consequently, in a convention of this type, one cannot speak of individual advantages or disadvantages to states, or of the maintenance, a perfect contractual balance between rights and duties. The high ideals which inspired the convention, provide by which you of the commonwealth of all the parties, the foundation and measure of all its provisions can be effectively discovered.
Finally, I will turn to one aspect of today's topic. That is the role of lawyers. Lawyers occupy a unique place in interactions between domestic and international law. Usually they are more likely than judges to have experience in dealing with international law. While judges are restricted, the freedom of legal practice allows lawyers to engage regularly with international law in all its forms. There is therefore a greater obligation to provide impartial assistance to judges. Whenever questions of international law arise before the courts, counsel must work not only to win their case, but also to ensure the proper application of international law. This is especially important when courts are called upon to interpret customary international law, the rules of which are less easily discoverable.
Courts tread on difficult terrain when different systems of law come together. The consequences of a single bad verdict can be grave, upsetting the hierarchy of norms that prevail under our constitution. Lawyers must aim to ensure that the outcome of the case is coherent and legally sound.
As the interactions between domestic and international law increase, there is also a need for a uniform global standard of ethics. Lawyers should not apply a different standard of ethical behaviour before international courts and tribunals while reserving a different standard for appearances before their national courts. Domestically, a global standard of ethics ensures a higher standard of advocacy. Internationally, it ensures that domestic judgments are met with the seriousness they deserve. Ethical practices are easier to form at the start of one's career. Years into practice, bad habits are far more difficult to shake off.
As students, I would urge you to take international law seriously. You will engage with it at some point in your careers. Our interactions with it are only likely to increase in the years to come, and as governments across the world fall short in protecting the rights of their citizens or in ensuring an atmosphere of free and liberal enquiry decades from now, we may even return to conclude that international law rarely is the best moderator of human affairs.
It has been a great privilege today to be in the presence of Professor Rajkumar, who is one of the most distinguished academics of the country and the world. Ambassador Rajamony, who again is not only a diplomat, but is a great thinker who also has written prolifically, including in his mother tongue, Malayalam. And of course, in the presence of Zena, as well as Zia.
Zia, who is a chip off the old block, a part of the skill, who actually today is a symbol of the ethical excellence in the legal profession. She is an icon today for everyone, and those who wish to enter into the practice of law, her industry, and she shakes off her brilliance with a certain unparalleled humility and concentrates on industry as a passport to success and resolution.
It is such a pleasure and honour to be amidst all of you. And wistfully, I must say that if you find any credit in anything which I did in my life, it is for the person for whom this memorial lecture is intended to honour. Somebody who made a man out of me, somebody who gave me a vantage point of ethics, somebody who widened my horizons in all directions, somebody who endowed me with the purpose of life, somebody who taught me the value of humility, and the need to abstain from criticism of others because as Soli would often say, ‘Look into yourself first.’ I miss him, and thank you for this opportunity.