CONCURRING OPINIONS AND THE DEVELOPMENT OF HUMANITARIAN NORMS IN INDIA: JUDICIAL CREATIVITY BEYOND THE MAJORITY

International humanitarian law (IHL) has traditionally developed through treaties, international tribunals, and state practice articulated at the international level. The role of domestic courts in this process has received growing scholarly attention; however, the specific contribution of concurring opinions remains largely under-examined. This article argues that concurring opinions of the Supreme Court of India function as important sites of humanitarian norm development, particularly in situations of internal conflict and counter-insurgency where the State resists the formal classification of armed conflict. Through doctrinal analysis of key Supreme Court decisions, including Naga People’s Movement of Human Rights v. Union of India, People’s Union for Civil Liberties v. Union of India, and Extra Judicial Execution Victim Families Association v. Union of India, this article demonstrates how concurring opinions articulate principles of civilian protection, proportionality, and state accountability. Although lacking binding force, these opinions operate as normative incubators that influence subsequent jurisprudence and contribute to the humanitarianisation of constitutional law in India. The article situates these developments within broader debates on judicial norm entrepreneurship and the role of domestic courts in the evolution of IHL, with particular relevance for the AsiaPacific region.