Abstract
The complex relationship between international and municipal law has been the bone of significant scholarly contention. In the Indian context, despite a formal commitment to dualism, courts have effected an interpretive shift towards monism by espousing incorporation of international law. The case of Mohammad Salimullah v. Union of India, which involves the issue of deportation of Rohingya refugees from India, represents a challenge in this regard owing to the lack of clarity as to India’s obligations under the principle of non-refoulement. The paper uses the Supreme Court’s recent interim order in the said case as a case study to examine India’s engagement with international law. It argues that the order inadequately examines the role of international law in constitutional interpretation and has the unfortunate effect of ‘refouling’ Rohingyas by sending them back to a state where they face imminent persecution.
Highlights
The historical divergence amongst jurists on the question of the relationship between international and municipal law led to the emergence of two rival theories, namely, monism and dualism
Union of India, which involves the issue of deportation of Rohingya refugees from India, represents a challenge in this regard owing to the lack of clarity as to India‟s obligations under the principle of non-refoulement
Regardless, a robust case can be made for non-refoulement constituting a norm of customary international law, and the same warrants scrutiny by the Supreme Court of India when considering the issue of deportation of Rohingya refugees
Summary
The historical divergence amongst jurists on the question of the relationship between international and municipal law led to the emergence of two rival theories, namely, monism and dualism. State of Rajasthan (1997), it was held that international conventions and norms are to be read into the provisions of fundamental rights of the Constitution of India, in case of a void in the domestic legal framework, provided there is no inconsistency between them.
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