Jolly George Varghese v Bank of Cochin (1980)

This is the case that tells you what a ratified Covenant is not. India ratified both Covenants in 1979. Within a year the Supreme Court was asked, squarely, whether a right guaranteed by the Covenant but absent from the Constitution could be enforced in an Indian court. The answer was no, and the reasoning is the classical statement of Indian dualism.

It is also the case that shows how a court which cannot enforce a Covenant directly nevertheless lets the Covenant shape the result. The judgment-debtors won. They won on Article 21, not on Article 11 of the Covenant - but the content the Court poured into Article 21 came from the Covenant. Learn both halves; candidates who learn only the dualist half misdescribe the outcome.

The appellants were judgment-debtors; the respondent bank was the decree-holder. In execution of the decree a warrant was issued for the arrest and detention of the appellants in civil prison under section 51 and Order 21, rule 37 of the Code of Civil Procedure - the ordinary machinery by which an unsatisfied money decree is enforced against the person of the debtor.

The appellants had no means. There was no finding that they had money and were withholding it. The question was whether they could be imprisoned simply because a decree stood unsatisfied.

Whether a right incorporated in the Covenant on Civil and Political Rights, which is not recognised in the Indian Constitution, is available to individuals in India.

Article 11 of the Covenant provides that no one shall be imprisoned merely on the ground of inability to fulfil a contractual obligation. Nothing in Part III says that in terms.

On the Covenant: dualism, stated plainly. The Court held that "The positive commitment of the States Parties ignites legislative action at home but does not automatically make the Covenant an enforceable part of the corpus juris of India." Ratification binds India on the plane of international law and obliges it to legislate; it does not, by itself, put the Covenant into the hands of an Indian litigant. Until Parliament acts, Article 11 is a promise made by India to other States, not a right held by a debtor against a bank.

That is the sentence to memorise. It is the cleanest statement of the dualist position anywhere on this syllabus, and it explains why the Protection of Human Rights Act 1993 was needed at all.

On the Constitution: the debtors still win. Having shut the direct route, the Court opened the indirect one. It held that the high value of human dignity and the worth of the human person enshrined in Article 21, read with Articles 14 and 19, obliges the State not to incarcerate except under a law which is fair, just and reasonable in its procedural essence. Applying that, imprisonment for poverty alone cannot be fair, just and reasonable. The Court put it in terms a student should be able to reproduce: to cast a person in prison because of his poverty and consequent inability to meet his contractual liability is appalling; to be poor is no crime, and to recover debts by putting a person in prison is flagrantly violative of Article 21 unless there is proof of the minimal fairness of a wilful failure to pay in spite of sufficient means and the absence of more terribly pressing claims on those means, such as medical bills to treat a grave illness.

So section 51 survives, but it is read down: arrest in execution requires proof of means and wilful default, not merely an unsatisfied decree.

There are two distinct moves and the marks are in seeing that they are distinct.

The first move is a proposition of the law of treaties as received in India. A treaty is made by the executive. If ratification alone made treaty rights enforceable, the executive would be legislating. Article 253 exists precisely because it does not: Parliament has power to make any law for implementing any treaty, agreement or convention with any other country, and the need for that power presupposes that the treaty is not self-executing.

The second move is a proposition of constitutional interpretation. Article 21 forbids deprivation of personal liberty except according to procedure established by law, and after Maneka Gandhi that procedure must be just, fair and reasonable. The content of what is fair is not fixed by the text; the Court is entitled to look outward for it. Article 11 of the Covenant tells the Court that the community of nations regards imprisonment for mere inability to pay as unacceptable. That does not make Article 11 law in India. It makes the conclusion that such imprisonment is unfair very much easier to reach.

The result is a pattern you will see again and again in this course: the Covenant supplies the standard; Article 21 supplies the enforceability.

Set Jolly George Varghese against Vishaka v State of Rajasthan (1997) and Apparel Export Promotion Council v A.K. Chopra (1999). Those cases read the content of an international convention into the fundamental rights. Is that inconsistent?

No, and the distinction is the answer to a good examiner. In Vishaka there was no domestic law occupying the field at all; the Court filled a vacuum, and said so. In Jolly George Varghese there was domestic law occupying the field - section 51 and Order 21, rule 37 - and the Court could not simply displace it with Article 11. What it could do was construe it against the constitutional standard. Where domestic law exists, the international instrument construes it; where domestic law is absent, the international instrument may fill the gap; in neither case does the instrument override.