Jolly George Verghese v. The Bank of Cochin (1980)

It is the clearest Indian statement of the transformation rule: an unimplemented treaty does not of itself bind Indian courts. But it is also the case that shows what an unimplemented treaty can do, which is to shape the construction of an existing statute. Students who remember only the first half of the case get the answer wrong.

The appellants were judgment-debtors of a bank. A decree had been passed and remained undischarged, and a warrant for their arrest and detention in the civil prison was pursuing them under the proviso to section 51 and Order 21 rule 37 of the Code of Civil Procedure. Their properties had been subjected to a blanket distraint.

Is it lawful to enforce a contractual liability by imprisoning a debtor, given Article 11 of the Covenant on Civil and Political Rights and Article 21 of the Constitution?

Article 11 of the Covenant: "No one shall be imprisoned merely on the ground of inability to fulfil a contractual obligation."

Article 21 of the Constitution: "Protection of life and personal liberty.-No person shall be deprived of his life or personal liberty except according to procedure established by law."

Detention under the proviso to section 51 requires more than simple default. There must be either present means to pay a substantial part of the decree, or bad faith in the past going beyond mere indifference. So construed, section 51 is in harmony with Article 11 of the Covenant and with Article 21, and does not need to be struck down. The matter was remitted to the executing court to decide afresh on the debtors' present means against their present pressures.

The transformation rule, stated flatly. The Court set out the international position and then closed the door: India is a signatory to the Covenant, and Article 51(c) obligates the State to "foster respect for international law and treaty obligations in the dealings of organised peoples with one another". "Even so, until the municipal law is changed to accommodate the Covenant what binds the court is the former, not the latter." The Court adopted the proposition that "international conventional law must go through the process of transformation into the municipal law before the international treaty can become an internal law", and that from the national point of view the national rules alone count.

The interpretive rule, which is the other half. In the same breath the Court recorded the qualification: "With regard to interpretation, however, it is a principle generally recognised in national legal system that, in the event of doubt, the national rule is to be interpreted in accordance with the State's international obligations." That sentence does the work of the judgment. The Covenant cannot override the Code, but it can decide how the Code is read where the Code is open.

The construction of section 51. The Court approved the reasoning in the Kerala decision in Xavier v Canara Bank. Article 11 interdicts imprisonment only where it is sought solely on the ground of inability to fulfil the obligation. Section 51 itself says the debtor who has no means cannot be arrested and detained. If he has means and still refuses or neglects, or commits acts of bad faith, he is liable to imprisonment and there is no violation of Article 11. But if he once had the means and now has not, or if he has money subject to other pressing claims, it is violative of the spirit of Article 11 to confine him in order to coerce payment.

The words that hurt. The Court identified the offending phrase in the proviso: "or has had since the date of the decree, the means to pay the amount of the decree". Read superficially, that would allow detention of a man now penniless because at some earlier time after the decree he had come by resources. The Court refused that reading: simple default is not enough; there must be some element of bad faith beyond mere indifference to pay, some deliberate or recusant disposition in the past, or alternatively current means to pay the decree or a substantial part of it. The provision requires proof not of mere omission to pay but of an attitude of refusal on demand verging on dishonest disowning of the obligation.

Article 21 as the constitutional anchor. The high value of human dignity in Article 21, read with Articles 14 and 19, obliges the State not to incarcerate except under a law fair, just and reasonable in its procedural essence, following Maneka Gandhi and Sunil Batra. To cast a person in prison because of his poverty and consequent inability to meet his contractual liability is, as the Court put it, appalling. Unreasonableness and unfairness in such a procedure is inferable from Article 11 of the Covenant. Having construed the proviso as it did, the Court did not need to decide whether the provision was ultra vires, and expressly refrained.

• The two rules in this case pull in opposite directions and must be stated together: transformation for binding force, harmonious construction for interpretation. An answer that gives only the first is incomplete.
• The doctrinal label for the second rule is the presumption of conformity, and it is the same presumption the English courts apply, that Parliament did not intend to deviate from international law.
• Note the technique. The Court neither applied the Covenant directly nor struck down the section. It read down the statute so that no conflict arose. That is why the vires question never had to be reached.
• Read with Vishaka, where the same interpretive principle was pushed further, to read a convention into fundamental rights in the absence of any domestic law; and with Vellore, where customary rules were treated as already incorporated.