USE OF INTERNATIONAL LAW TO FILL GAPS IN MUNICIPAL LAW:

A CASE ANALYSIS OF VISHAKHA v. STATE OF RAJASTHAN

ACKNOWLEDGEMENT............................................2

TABLE OF CONTENTS

TABLE OF CONTENTS............................................3
INTRODUCTION.....................................................4
INTERNATIONAL LAW............................................6
MUNICIPAL LAW.....................................................7

RELATIONSHIP BETWEEN INTERNATIONAL LAW AND MUNICIPAL LAW (THEORIES) 8

POSITION IN INDIA............................................................................................... 10
VISHAKHA V. STATE OF RAJASTHAN: A CASE STUDY.............................................12
Violation Of Fundamental Rights...............................................................................12
Absence of Domestic Law........................................................................................ 13
Provisions in the Constitution....................................................................................13
International Convention.......................................................................................... 15
Guidelines formed.................................................................................................. 16
CONCLUSION....................................................................................................... 21

INTRODUCTION

International Law is the law which governs the Relations of sovereign independent States
inter se Municipal law or State law or national law is the law of a State or a country and in
that respect is opposed to International Law which consists of rules which civilized States
consider as binding upon them in their mutual relations. Kelsen observes that national law
regulates the behavior of individuals International law the behavior of States or as it is put
whereas national law is concerned with the international relations the so called domestic
affairs of the State. International Law is concerned with the external relations of the State its
foreignaffairs.

Legislature and court systems are different on the international and municipal levels. Where
the municipal level uses a legislature to help enforce and test the laws, the international court
system relies on a series of treaties without a legislature which, in essence, makes all
countriesequal.

Enforcement is a major difference between municipal and international law. The municipal
courts have a law enforcement arm which helps require those it determines to follow the
rules, and if they do not they are required to attend court. The international court system has
no enforcement and must rely on the cooperation of other countries for enforcement.

There is a divergence of opinion on the question as to whether International Law and

Municipal Law on the various national laws can be said to form a unity being manifestations

of a single conception of law or whether International Law constitutes an independent system

of law essentially different from the Municipal Law. The former theory is called monistic
and the latter dualistic.
In many instances international law is used to fill gaps in municipal law. Whenever there is an
important question of law involved but there is absence of a domestic legislation in its regard
then it is indispensable to look for alternative mechanisms in international law

INTERNATIONAL LAW
International law is the set of rules generally regarded and accepted as binding in relations
between states and between nations. It serves as a framework for the practice of stable and
organized international relations. There are several ways to think about law. In the domestic
legal system, we think of law as the rules that the government issues to control the lives of its
citizens. Those rules are generally created by the legislature, interpreted by the judiciary, and
enforced by the executive branch, using the police, if necessary, to force citizens to obey.
What is law for the international community if there is no one legislature, judiciary, executive
branch, or police force?
This can be explained with the help of an example. Imagine a group of children in a school
who want to play a game of dodge ball in the playground. They set their own rules for the
game. They decide by mutual consensus the order in which they will go in the circle, the
terms for getting out etc. The rules that they have set do not flow from some superior
authority (a teacher in the current example). These rules just enable the children to enjoy the
benefit of collaboration with each other. Just as certain common understandings between
children may make it easier for them to play, collective agreement on certain rules can often
serve the interests of all the members of a community. Just as on a playground without a
teacher, in the international setting there is no central authority, but the countries form mutual
understandings and agreements in order to benefit from each other and to serve the interest of
all. Thus, the fact that there is no overall authority to force compliance with the rules does not

necessarily mean that there is no law. Law still exists in this setting, though it may be
practiced and enforced in different ways.

MUNICIPAL LAW
Municipal Law is the law specific to a particular city or county (known legally as a
"municipality"), and the government bodies within those cities or counties. This can cover a
wide range of issues, including everything from police power, zoning, education policies, and
property taxes. It refers to the internal law of a sovereign state. Municipal law includes state,
provincial, territorial, regional, or local law of a state.
Legislature and court systems are different on the international and municipal levels. Where
the municipal level uses a legislature to help enforce and test the laws, the international court
system relies on a series of treaties without a legislature which, in essence, makes all
countries equal.Municipal law is hierarchical or vertical - the legislature is in a position of
supremacy and enacts binding legislation.
The court system at the international level is one that relies on the acquiescence of the
countries to both its jurisdiction and to carrying out the decisions of the court. The court
system is well-established at the international level and respected but it lacks the ability to
compel a country to come before it, unlike courts in a municipal system which can require the
government, company or individual to appear before it.
Enforcement is a major difference between municipal and international law. The municipal
courts have a law enforcement arm which helps require those it determines to follow the
rules, and if they do not they are required to attend court. The international court system has
no enforcement and must rely on the cooperation of other countries for enforcement.

RELATIONSHIP BETWEEN INTERNATIONAL LAW ANDWhen

MUNICIPAL LAW (THEORIES)
examining the relationship between international law and municipal law, it is important to
analyse the clash between dualism and monism. Both concepts entail the concurrent existence
of international and domestic law.
There is a divergence of opinion on the question as to whether International Law and
Municipal Law on the various national laws can be said to form a unity being manifestations
of a single conception of law or whether International Law constitutes an independent system
of law essentially different from the Municipal Law. The former theory is called monistic
and

the

latter

dualistic.

Monistic Theory: Monists assume that the internal and international legal systems form a
unity. Both national legal rules and international rules that a state has accepted, for example
by way of a treaty, determine whether actions are legal or illegal. In most monist states, a
distinction between international law in the form of treaties, and other international law, e.g.
jus cogens is made. International law does not need to be translated into national law. The act
of ratifying the international law immediately incorporates the law into national law.
International law can be directly applied by a national judge, and can be directly invoked by
citizens, just as if it were national law. A judge can declare a national rule invalid if it
contradicts international rules because, in some states, the latter have priority. In other states,
like in Germany, treaties have the same effect as legislation, and by the principle of lex
posterior, only take precedence over national legislation enacted prior to their ratification. In

its most pure form, monism dictates that national law that contradicts international law is null
and void, even if it predates international law, and even if it is the constitution. It maintains
that the subject of the two systems of law namely, International Law and Municipal Law
Dualistic theory: Dualists emphasize the difference between national and international law,
and require the translation of the latter into the former. Without this translation, international
law does not exist as law. International law has to be national law as well, or it is no law at
all. If a state accepts a treaty but does not adapt its national law in order to conform to the
treaty or does not create a national law explicitly incorporating the treaty, then it violates
international law. But one cannot claim that the treaty has become part of national law.
Citizens cannot rely on it and judges cannot apply it. National laws that contradict it remain
in force.. According to the dualist view the systems of International Law and Municipal Law
are separate and self contained to the extent to which rules of the one are not expressly or
tacitly received into the other system. According to the dualism principle, in a case of
conflict between municipal and international law, the domestic courts would apply the
former.

POSITION IN INDIA

The position in India can be understood as a mix of both monistic as well as dualistic
theories. The Indian system has certain features of both monistic and dualistic theories but is
neither purely monistic nor purely dualistic.
As per monistic theory of relation between international and municipal law, International law
does not need to be translated into national law. A national judge can apply international law
to decide cases, whenever there is a void in domestic law. In India the Supreme Court has
given various judgements where they have used international conventions and laws of
different countries to arrive at decisions. One such example is Randhir vs Union of India 1
wherein the Supreme Court took assistance of laws of various countries and norms of
international organisations in order to establish the importance of the doctrine of equal pay
for equal work. The principle of 'equal pay for equal work' is expressly recognized by all
socialist systems of law, e.g, Section 59 of the Hungarian Labour. Code, para 2 of Section 111
of the Czechoslovak Code, Section 67 of the Bulgarian Code, Section 40 of the Code of the
German Democratic Republic, para 2 of Section 33 of the Rumanian Code. Indeed this
principle has been incorporated in several western labour codes too. Under provisions in
Section 31 (g. No. 2d) of Book I of the French Code du Travail, and according to Argentinian
law, this principle must be applied to female workers in all collective bargaining agreements.
In accordance with Section 3 of the Grundgesetz of the German Federal Republic, and clause
7, Section 123 of the Mexican Constitution, the principle is given universal significance
(vide: International Labour Law by Istvan Szaszy p. 265). The preamble of the Constitution
of the International Labour Organisation recognises the principle of 'equal remuneration for
work of equal value' as constituting one of the means of achieving the improvement of

1 Randhir v. Union of India, 1982 AIR 879

conditions "involving such injustice, hardship and privation to large numbers of people as to
produce unrest so great that the peace and harmony of the world are imperilled".2
As per dualistic theory, in case of a conflict between international and domestic law, domestic
law would supersede international law. This holds true in the Indian scenario. In Vishakha vs
State of Rajasthan3 , where guidelines based on an international convention, were laid down
to prevent sexual harassment at work place, it was explicitly mentioned that any guideline
which is in contravention to the Protection of Human Rights Act, 1993 will be invalid. These
guidelines will not prejudice any rights available under the Protection of Human Rights act,
1993.4
Thus it can be concluded that in India features of both monistic as well as dualistic theories
are followed.

2 Supra Note 1.
3 Vishakha vs State of Rajasthan
4 Id.

VISHAKHA V. STATE OF RAJASTHAN: A CASE STUDY

Vishakha v. State of Rajasthan, is one of the most important examples to show the use of
international law in order to fill void in municipal law. The honourable Chief Justice of India,
Justice Verma, established the need and importance of relying upon the international law to
draw guidelines to prevent sexual harassment of women at workplace. He also justified why
usage of international law in the current case is valid. This can be understood by reviewing
the following concepts which were laid down in the case.
Violation Of Fundamental Rights
The case involves the alleged brutal gang rape of a social worker in Rajasthan. It was held
that it was in clear violation of the fundamental rights of the victim. Each such incident
results in violation of the fundamental rights of 'Gender Equality' and the 'Right of Life and
Liberty'. It is clear violation of the rights under Articles 14, 15 and 21 of Constitution. One of
the logical consequences of such an incident is also the violation of the victim's fundamental
right under Article 19(1)(g) 'to practice any profession or to carry out any occupation, trade
or business'. Such violations, therefore, attract the remedy under Article 32 for the
enforcement of these fundamental rights of women. 5 Since , violation of fundamental rights
is involved it is necessary to take some steps and establish some guidelines to ensure that
such violation does not recur in future.

5 Vishaka & Ors vs State Of Rajasthan & Ors

Absence of Domestic Law

Once it has been established that there is violation of certain fundamental rights, the next step
is to look for a remedy in law. However there is no such legislation available. Whenever there
is such a vacuum in domestic law there arises a need to look for alternative remedies in
international law. The Court held that the incident reveals the hazards to which a working
woman may be exposed and the depravity to which sexual harassment can degenerate; and
the urgency for safeguards by an alternative mechanism in the absence of legislative
measures. In the absence of legislative measures, the need is to find an effective alternative
mechanism to fulfil this felt and urgent social need. In the absence of domestic law occupying
the field, to formulate effective measures to check the evil of sexual harassment of working
women at all work places, the contents of International Conventions and norms are
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 and the safeguards
against sexual harassment implicit therein.6
Provisions in the Constitution
The use of international law to fill gaps in municipal law is not arbitrary. There are certain
provisions in the Indian Constitution which validate such use. These provisions were
identified in this case. The court held that before we refer to the international conventions and
norms having relevance in this field and the manner in which they assume significance in
application and judicial interpretation, we may advert to some other provisions in the
Constitution which permit such use. These provisions are:

6 Id.

Article 51 (c)
Promotion of international peace and security
The State shall endeavour to

Foster respect for international law and treaty obligations in the dealings of organised
people with one another.

Article 253
Legislation for giving effect to international agreements
Notwithstanding anything in the foregoing provisions of this Chapter, Parliament has
power to make any law for the whole or any part of the territory of India for
implementing any treaty, agreement or convention with any other country or countries
or any decision made at any international conference, association or other body.

Entry 14 of List 1 of Seventh Schedule

Entering into treaties and agreements with foreign countries and implementing of
treaties, agreements and conventions with foreign countries.
It was further held that any International Convention not inconsistent with the
fundamental rights and in harmony with its spirit must be read into these provisions to
enlarge the meaning and content thereof, to promote the object of the constitutional
guarantee. This is implicit from Article 51(c) and enabling power of the Parliament to
enact laws for implementing the International Conventions and norms by virtue
ofArticle 253 read with Entry 14 of the Union List in Seventh Schedule of the
Constitution.

International Convention
In order to establish the guidelines for prevention of sexual harassment of women at
workplace the court took assistance of the Convention on the Elimination of All Forms of
Discrimination against Women. The provisions which were considered significant were-

States Parties shall take all appropriate measures to eliminate discrimination against
women in the field of employment in order to ensure, on basis of equality of men and
women, the same rights, in particular:
The right to work as an inalienable right of all human beings;
The right to protection of health and to safety in working conditions, including
the safeguarding of the function of reproduction.

States Parties undertake to adopt all necessary measures at the national level aimed at

achieving the full realization of the rights recognised in the present Convention.
Equality in employment can be seriously impaired when women are subjected to

gender specific violence, such as sexual harassment in the work place.

Sexual harassment includes such unwelcome sexually determined behavior as
physical contacts and advance, sexually coloured remarks, showing pornography and
sexual demands, whether by words or actions. Such conduct can be humiliating and
may constitute a health and safety problem; it is discriminatory when the woman has
reasonable grounds to believe that her objection would disadvantage her in connection
with her employment, including recruiting or promotion, or when it creates a hostile
working environment. Effective complaints procedures and remedies, including

compensation, should be provided.

States should include in their reports information about sexual harassment, and on
measures to protect women from sexual harassment and other forms of violence of
coercion in the work place.

The court held that there is no reason why these international conventions and norms cannot,
therefore, be used for construing the fundamental rights expressly guaranteed in the

Constitution of India which embody the basic concept of gender equality in all spheres of
human activity.
Guidelines formed
On the basis of the provisions of the Convention on the Elimination of All Forms of
Discrimination against Women the Supreme Court formulated twelve Guidelines and Norms
to prevent sexual harassment against women at workplace. These are1. Duty of the Employer or other responsible persons in work places and other institutions:
It shall be the duty of the employer or other responsible persons in work places or other
institutions to prevent or deter the commission of acts of sexual harassment and to provide
the procedures for the resolution, settlement or prosecution of acts of sexual harassment by
taking all steps required.
2. Definition:
For this purpose, sexual harassment includes such unwelcome sexually determined behaviour
(whether directly or by implication) as:
a) physical contact and advances;
b) a demand or request for sexual favours;
c) sexually coloured remarks;
d) showing pornography;
e) any other unwelcome physical verbal or non-verbal conduct of sexual nature.

Where any of these acts is committed in circumstances where under the victim of such
conduct has a reasonable apprehension that in relation to the victim's employment or work
whether she is drawing salary, or honorarium or voluntary, whether in government, public or
private enterprise such conduct can be humiliating and may constitute a health and safety
problem. It is discriminatory for instance when the woman has reasonable grounds to believe
that her objection would disadvantage her in connection with her employment or work
including recruiting or promotion or when it creates a hostile work environment. Adverse
consequences might be visited if the victim does not consent to the conduct in question or
raises any objection thereto.
3. Preventive Steps:
All employers or persons in charge of work place whether in the public or private sector
should take appropriate steps to prevent sexual harassment. Without prejudice to the
generality of this obligation they should take the following steps:
(a) Express prohibition of sexual harassment as defined above at the work place should be
notified, published and circulated in appropriate ways.
(b) The Rules/Regulations of Government and Public Sector bodies relating to conduct and
discipline should include rules/regulations prohibiting sexual harassment and provide for
appropriate penalties in such rules against the offender.
(c) As regards private employers steps should be taken to include the aforesaid prohibitions in
the standing orders under the Industrial Employment (Standing Orders) Act, 1946.
(d) Appropriate work conditions should be provided in respect of work, leisure, health and
hygiene to further ensure that there is no hostile environment towards women at work places

and no employee woman should have reasonable grounds to believe that she is disadvantaged
in connection with her employment.
4. Criminal Proceedings:
Where such conduct amounts to a specific offence under the Indian Penal Code or under any
other law the employer shall initiate appropriate action in accordance with law by making a
complaint with the appropriate authority.
In particular, it should ensure that victims, or witnesses are not victimized or discriminated
against while dealing with complaints of sexual harassment. The victims of sexual
harassment should have the option to seek transfer of the perpetrator or their own transfer.
5. Disciplinary Action:
Where such conduct amounts to mis-conduct in employment as defined by the relevant
service rules, appropriate disciplinary action should be initiated by the employer in
accordance with those rules.
6. Complaint Mechanism:
Whether or not such conduct constitutes an offence under law or a breach of the service rules,
an appropriate complaint mechanism should be created in the employer's organization for
redress of the complaint made by the victim. Such complaint mechanism should ensure time
bound treatment of complaints.
7. Complaints Committee:

The complaint mechanism, referred to in (6) above, should be adequate to provide, where
necessary, a Complaints Committee, a special counsellor or other support service, including
the maintenance of confidentiality.
The Complaints Committee should be headed by a woman and not less than half of its
member should be women.
Further, to prevent the possibility of any under pressure or influence from senior levels, such
Complaints Committee should involve a third party, either NGO or other body who is
familiar with the issue of sexual harassment.
The Complaints Committee must make an annual report to the government department
concerned of the complaints and action taken by them. The employers and person in charge
will also report on the compliance with the aforesaid guidelines including on the reports of
the Complaints Committee to the Government department.
8. Workers' Initiative:
Employees should be allowed to raise issues of sexual harassment at workers meeting and in
other appropriate forum and it should be affirmatively discussed in Employer-Employee
Meetings.
9. Awareness:
Awareness of the rights of female employees in this regard should be created in particular by
prominently notifying the guidelines (and appropriate legislation when enacted on the
subject) in suitable manner.

10. Where sexual harassment occurs as a result of an act or omission by any third party or
outsider, the employer and person in charge will take all steps necessary and reasonable to
assist the affected person in terms of support and preventive action.
11. The Central/State Governments are requested to consider adopting suitable measures
including legislation to ensure that the guidelines laid down by this order are also observed
by the employers in Private Sector.
12. These guidelines will not prejudice any rights available under the Protection of Human
Rights Act, 1993.7

The court observed that the fact that the present civil and penal laws in India do not
adequately provide for specific protection of women from sexual harassment in work places
and that enactment of such legislation will take considerable time, It is necessary and
expedient for employers in work places as well as other responsible persons or institutions to
observe these guidelines to ensurethe prevention of sexual harassment of women.

7 Supra Note 5

CONCLUSION

International law and municipal law are two distinct areas of law however they continuously
seek the aid of each other. One can also argue that there has been a fusion of the operating
fields of both concepts. In the spirit of modernisation, both the municipal and international
courts have recognised the need to resort to the others sphere of operation as aids to
interpretation. There are two theories of relation between them. The monistic theory sees
municipal law as a part of international law and international law is given more importance
over municipal law. The dualistic theory sees international and municipal law as different
areas altogether and in case of conflict gives priority to municipal law.
The Indian system is an interesting mix of the two. Whenever there is a vacuum in the
municipal law the Indian Courts have taken the assistance of international conventions in
order to fill the gap in domestic law. This however is done keeping i mind that it does not
violate any existing law of the land. An effort must be made to read the domestic law as
being in harmony with the international law in case of any ambiguity. At the same time, the
constitution is still the supreme law of the land and in case of any conflict the constitution
will prevail. Also such support is taken only for the time period when there is absence of a
legislation on the concerned issue. As soon as a legislation is enacted for the issue in concern,
the new legislation will supersede the international convention.