Guest Post: Indian Courts and Jus Cogens

-Chhaya Bhardwaj, Lecturer at O.P. Jindal Global University

The concept of jus cogens norm was first codified under Article 53 of the Vienna Convention on the Law of Treaties, 1969 (VCLT), to which India is not a party. A peremptory norm of general international law (jus cogens) is a norm accepted and recognized by the international community of states as a whole, as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character. The United Nations International Law Commission (UN ILC) has recognized that jus cogens norms are hierarchically superior to other norms, are universally applicable and reflect the value of the international community. An illustrative list of jus cogens norm recognized by the UN ILC includes prohibitions of aggression, torture, genocide, crimes against humanity, apartheid and racial discrimination, slavery and right to self-determination.

Indian practice in relation to specific peremptory norms has not received much attention in scholarly articles. This article attempts to fill the scholarly gap by summarizing the recognition and understanding of jus cogens norm by the Indian courts. Before analyzing the position of Indian courts on recognition of specific peremptory norms, it is necessary to discuss India’s relationship with VCLT because it is the primary source of definition and interpretation of a peremptory norm. India has also appreciated and supported the application of VCLT to resolve disputes arising in relation to Jus Cogens norms, even though India is not a party to VCLT. India’s Supreme Court in Ram Jethmalani & Ors. v. Union of India AIR 2011 applied and interpreted VCLT. The court also recognized that VCLT codifies many principles of customary international law and provided a broad guideline for interpreting a treaty in the Indian context. In the Jadhav Case (India v. Pakistan) (para 71), the International Court of Justice applied the provisions of VCLT that reflected customary international law and those provisions of VCLT that were highlighted by the parties in their written submissions. Therefore, VCLT plays an important role for both- defining the peremptory norms and interpreting the peremptory norms (under international law in general) for India.

In relation to specific dictum of the Indian courts on jus cogens norms, India deviates from the UN ILC list of jus cogens. In addition to the listed norms, the report points that there is support for the peremptory character of the right to life. Indian courts have also applied jus cogens when interpreting “right to life” and rights related to its extension. Post-independence, i.e. after 1947, the Supreme Court of India has extensively applied and interpreted “right to life” which is guaranteed under Article 21 of the Constitution of India, 1949. In 1982, the Supreme Court in Bachan Singh v. State of Punjab AIR 1980 , while trying to strike a balance between death penalty and right to life, propounded the rule of “rarest of rare” by declaring the following:

“A real and abiding concern for the dignity of human life postulates resistance to taking a life through law’s instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed.”

The convict in Bachan Singh’s case had served life sentence for committing murders, before committing three murders again. Given the subjective factual circumstances of the case, the Supreme Court awarded the death penalty. Additionally, this decision considered the international law, vis-a-vis International Covenant on Civil and Political Rights of 1966 that also allows death penalty for the most serious crimes as a part of right to life.

While this decision above did not discuss if right to life could be characterised as a jus cogens, in State of Punjab v. Dalbir Singh AIR 2012, the Supreme Court declared the following:

“… the ratio in …Bachan Singh (supra)… has been universally acknowledged in several jurisdictions across the world and has been accepted as correct articulation of Article 21 guarantee. Therefore, the ratio in ….. Bachan Singh (supra) represents the concept of jus cogens meaning thereby the peremptory non-derogable norm in international law for protection of life and liberty.”

In Dalbir Singh, the court analyzed an appeal on an acquittal decision by a lower court. The acquitted was charged under section 27(3) of the Indian Arms Act, which imposed death penalty on person convicted of causing death by using prohibited arms or ammunitions. In this case, the universality of whether death penalty is a part of the right to life was tested by analysing judicial decisions of atleast 7 countries including the United States of America, Belize, the United Kingdom, Malawi, Uganda, Kenya, and Singapore.  The decision in Dalbir Singh has three impacts on Indian jurisprudence. Firstly, it recognizes that the right to life is a peremptory non-derogable norm. Secondly, the right to life as non-derogable norm includes imposition of death penalty in rarest of rare cases.Thirdly, this inclusion of death penalty is recognized universally.

Generally, the right to life based jurisprudential development is expanding and ever-evolving, highlighting the naturally growing dominance of this right in India. Article 21- right to life is the most widely interpreted right/law in India and many other substantive rights like right to livelihood, right to health, right to environment, flow from right to life. The 2018 General Comment No. 36 on right to life lays out the inclusiveness of this right because other rights like right to health and right to environment flow from it.

In June 2020, the Kerala High Court in Cry for Life Society and Ors. vs. Union of India and Ors. AIR 2020, further interpreted right to life and in its judgment discussed that “the rule regarding protection of life before birth could be considered as ‘jus cogens’ (final norm of general international law)”. The court’s discussion was based on whether a pregnant woman should be allowed to terminate her pregnancy if the baby was to be born with disabilities or due to other scientific grounds justifying termination of pregnancy. There is a life before birth which needs equal protection as life after birth and its protection should be guided by scientific information. This is a reasonable and scientific interpretation of the right to life under both domestic and international law of treaty interpretation.

The explanation of the right to life in India also includes a right to die with dignity, amongst other rights and should be concluded only in accordance with the procedure established by law. The continuation of imposition of death penalty for the most serious crimes in India is in alignment with the international legal framework on right to life which incorporates continuation of death penalty. There is a parallel global practice and demand to abolish death penalty in totality. However, at the same time imposition of death penalty is not completely forbidden by law, in fact, allowed in effect.  Implementing death penalty for crimes like genocide, crimes against humanity and other heinous crimes is an acceptable legal norm if a person is convicted of the crime. Therefore, in effect, imposition of death penalty may protect future deprivation of life and liberty of a few people. The Supreme Court of India in the Delhi Gang Rape Case, concluded that the case was “rarest of rare” and justified death penalty in the following words:

“The accused may be a menace to the society and would continue to be so, threatening its peaceful and harmonious coexistence. The manner in which the crime is committed must be such that it may result in intense and extreme indignation of the community and shock the collective conscience of the society. Where an accused does not act on any spur-of-the-moment provocation and indulges himself in a deliberately planned crime and meticulously executes it, the death sentence may be the most appropriate punishment for such a ghastly crime. The death sentence may be warranted where the victims are innocent children and helpless women. Thus, in case the crime is committed in a most cruel and inhuman manner which is an extremely brutal, grotesque, diabolical, revolting and dastardly manner, where his act affects the entire moral fiber of the society e.g. crime committed for power or political ambition or indulging in organized criminal activities, death sentence should be awarded.”

In the Nuremberg trial Judgement, the bench ordered death penalty for international crimes and stated the evidence for murder and ill treatment of civilian population was “quite overwhelming of a systematic rule of violence, brutality and terror”. The bench also noted that “the persecution of the Jews at the hands of the Nazi Government has been proved in the greatest detail before the Tribunal. It is a record of consistent and systematic inhumanity on the greatest scale.” It can be generally concluded, without much opposition, that the actions of Nazi Government constituted rarest of rare case of collective brutality and violence that shook the collective conscious of the globe. Therefore, death penalty of the perpetrators was justified on accounts of the rarity and gravity of the crimes. The Indian judicial system also adopts a similar approach for the rarest of rare criminal convictions, especially in cases involving crimes against women and children that continue to shake the global consciousness.

The implementation of death penalty is different in diverse jurisdictions given the context of a societal and political set-up. However, the fundamental concept is that death penalty is justified for a crime that shakes the consciousness of the world, affects the moral fiber of the society, and constitutes most cruel and inhuman actions. This concept fundamentally and evidently remains similar under international and Indian framework.  It is likely that recognition of Bachan Singh’s decision as one representing the peremptory norm could cause support and consequent development of “death penalty for most serious crimes” as a norm of peremptory nature. This norm can be of the “same character” as the ones absolutely recognized as jus cogens.

The application of peremptory norms of general international law by the Indian Courts to interpret ‘right to life’ is a progressive step and contributes to the Indian State practice on the peremptory norms. The other, more mainstream jus cogens norms like slavery, apartheid, crimes against humanity, genocide has not been in spotlight as far as India is concerned, not even historically. Therefore, Indian courts never had the chance to interpret other recognized norms. However, with a progressive analysis, the Indian courts continue to contribute towards recognition or development of  jus cogens norms, particularly the right to life.

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