Most jurists draw distinction between ‘direct application’ of treaties in domestic law, and national legal systems that mandate and require ‘act of transformation’ for an international treaty to apply and be a part of domestic law; ‘direct application’ means and mandates that the treaty norms, either wholly or to some extent, are directly treated as norms of domestic law and enjoy the statutory law status by default in the domestic legal system; the term ‘direct application’ will also cover situations in which Government or different levels of Government utilize treaty norms as part of domestic jurisprudence and is not limited to situations in which private parties can sue on the basis of the treaty norms; ‘act of transformation’ principle means and implies that an international treaty is not directly applicable in the domestic law system and requires provision in the domestic rules before it is applied; ‘transformation’ is a word of wide amplitude and does not refer to mere implementation as it includes the right of the country to adopt, amend or modify the treaty language into domestic jurisprudence; it is obvious that only the part incorporated or transformed into domestic law is invocable and justiciable and not the parts that are not codified into domestic law; however, invocability can embrace several ideas which are intertwined; the ‘act of transformation’ is different from ‘direct application’ as in the former the treaty is not received and treated as part of domestic jurisprudence until it is published and made part of the domestic jurisdiction in the same manner as other law; as in case of ‘act of transformation’, even in ‘direct application’ cases, some jurisdictions accept the principle of ‘partial direct application’ and, therefore, the treaty is directly applicable for some purposes and not others.
The decisions which relate to and are confined to the requirement and mandate of the need for ‘act of transformation’, to be a part and parcel of domestic law, has to be distinguished from decisions interpreting domestic law after the ‘act of transformation’.
We are examining an economic and fiscal legislation or rather an economic policy decision. The decisions on human rights therefore would not be of much assistance.
– Hon’ble Justice Sanjiv Khanna, Union of India v. Agricas LLP, [Transfer Petition (Civil) Nos. 496-509 of 2020].