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This article is written by Oishiki Bansal, a student of Symbiosis law school Noida. The article explains the treaty-making power of the Indian government while analyzing Article 253 of the Constitution and also discusses similar provisions in other countries .

Introduction

The world is converting into a global village at a very fast pace. With the growing relations with foreign nations and the growing impact of the various world forums, summits, and organizations, there is a growing need to maintain foreign relations. As new treaties and conventions are coming into view it is important to understand how the Indian legislations for the implementation of international treaties work. 

The scope of this article is to explain Article 253 of the Constitution, its relevance in the international relations of our country with other nations and organizations. The effect of this article on implementing the international treaties along with the domestic laws. The article also discusses how international treaties come into effect in other countries.

Analyzing Article 253 of the Constitution 

Article 253 provides for the following – 

  1. The Article presents a notwithstanding clause stating that none of the provisions under Chapter 11 of the Constitution will affect Article 253.
  2. The Parliament has the power to make any law for the Union of India or particular state or any union territory for – 
  3. Implementing any international treaty, agreement, or convention or for implementing any decision made at any international forum, conference, organization, or association. 

Therefore, Article 253 read with Article 246 clause (3) provides that the union government can make laws on the matters enumerated in either of the lists that is union list concurrent list and state list. 

The landmark case of Kesavananda Bharati vs the State of Kerala (1970) that outlined the basic structure of the Constitution also discusses the power of the Union of India as given under Article 253. Chief Justice Sikri opined that if any municipal law is vague then the courts must take the support of the parent International authority on that particular municipal Law. 

Important articles and schedules 

Here are some important Articles and schedules that you need to know before you read the Article-

  • Article 1 of the Constitution of India, 1949 – defines the territory of India as states, union territories listed under the 1st schedule, and other territories occupied or acquired by India. 
  • Article 3 of the Constitution of India,1949 – provides the parliament with the power to alter the boundaries of states or union territories by either of the following methods – merging them, separating them, diminishing the area, increasing the area, or by altering the name. 
  • Article 14 of the Constitution of India,1949 – provides for quality before law. 
  • Article 15 of the Constitution of India, 1949 – states that the state will not discriminate against citizens on the basis of sex, caste, religion, race, or place of birth.
  • Article 19(1)(g) of the Constitution of India,1949 – states the right to profess any trade, occupation, business, and profession.
  • Article 51(c) of the Constitution of India 1949 – provides for the state to encourage respect towards International laws and treaties and also advocate settlement of international disputes through arbitration.
  • Article 73 of the Constitution of India,1949 – lays down the extent of executive power of the union – to the matters in which parliament has the power to make laws and to exercise powers or authority that are exercisable by the government of India given by any treaty or agreement. 
  • Article 226 of the Constitution of India, 1949 – details the treaty-making power of the high court with respect to issuing of certain writs.
  • Article 246 of the Constitution of India,1949 – defines the power of the legislature in forming laws. The Article is divided into three clauses – 
  1. The government has the exclusive power to make laws on the subject stated in list one in the seventh Schedule
  2. The state legislature has the power to make laws on the subjects enumerated in list three of the seventh schedule. (concurrent list) 
  3. The government has the power to make laws regarding the territories not included in the state notwithstanding that matter is a subject enumerated in the state list. 
  • List 1 of the seventh Schedule – also known as the list. It states down the matter on which only the government of India has the power to make laws. 
  1. Entry 13 – Participation in international conferences, associations, and other bodies and implementing of decisions made thereat.
  2. Entry 14 – entering into an agreement with foreign countries and associations and implementing such treaties and agreements.
  3. Entry 15 – war and peace.
  4. Entry 16 – foreign jurisdiction. 
  • 1st Schedule of the Constitution of India – states and specifies all the states and union territories of the union of India 

Treaty making power of the government

In India, international law is implemented either as per the role of each of the government’s organs or from the perspective of the applicability of the international law in all areas of law. 

Article 253 of the Constitution read with Entry 13 and 14 of list 1 of the Seventh Schedule gives exclusive power to the Parliament to form any laws relating to any conventional creating agreement entered with a foreign country or countries or any decision made for any treaty signed with the international associations or organizations.

Concerning Article 253 two views exist on the implementation of international treaties –

  1. The traditional view of Basu says that note international treaty can be implemented to the municipal court until and unless it has been ratified by the legislation according to the said Article. 
  2. The present view is of Alexandrowicz which says that not all treaties are to be implemented by the legislation, only the treaty that deals with private rights needs to be implemented by the legislation.

Article 246 read with entry 14 of the union list in the Seventh Schedule provides that the Parliament can make any law regarding The treaty-making power but it has not been done so far and India has adopted the British Parliament tradition to implement the treaties. The British tradition gives the executive a privilege to decide whether the international treaty is to be ratified or not. Therefore, when Articles 73, 246, 253, and Entry 14 of the union list are read together results that the executive power of the Government of India is co-extensive with that of legislation when it comes to treaty-making and implementing power. 

The power of the Parliament to enter into a treaty under Article 235 was further discussed in the case of P.B Samant v Union of India (1994), Where the petitioners reached the Bombay High Court issuing a writ of mandamus restricting the union government from entering into the Dunkel proposal without discussing it with the state legislature. They contended that the proposal involved The subject matters mentioned in the state lists, for the executive powers of the union government cannot be exercised without considering the state legislation. The Union of India argued that with effect to Article 253 the Parliament alone has the power to make laws on international treaties notwithstanding with Article 246(3) relating to any subject mentioned in all the lists.

The Court held that the Issue of the government entering into an international treaty is a policy decision and it does not come under the court’s jurisdiction as provided under Article 226 of the Constitution of India

Hence, in the process of treaty-making parliamentary approval is required only when the treaty affects the rights of citizens and a new law is to be made or change is required in the existing domestic law. The state government has no power in the treaty-making process. 

Treaties that require legislation to give effect 

Broad categories of the treaties that will require the legislation to make new laws are –

  • Treaties that involve cession or acceptance of land. 
  • Treaties that require any change, be it alteration, addition, or removal, in any existing law.
  • If the treaty requires any legislation or a specific allocation of financial resources to enable its implementation within the state.
  • Treaties that affect private rights. 

Other Constitutions with a similar provision

Australia

Australia is a common law country and a Federalist just like India. Section 61 of the Australian Constitution Act 1900 provides that the treaty-making power is exclusively the power of the executive. In 1996, the foreign minister of Australia gave a new treaty-making process which outlined that any multilateral or bilateral International Treaty signed by the Australian government has to be tabled before both the houses for 16 sitting days before its ratification for the parliamentary discussion as to the domestic laws of the country. Also, it was stated that before entering into any treaties the government will discuss the implications of the treaties with the state legislatures. 

The case of Minister of immigration and ethnic affairs v TEOH (1995) laid down provisions relating to the treaty-making process – 

  1. No Treaty shall be considered as a domestic law until and unless it is ratified by both houses. 
  2. Any treaty, convention, or agreement signed by the Federal government will become a part of the domain domestic law and administrative decisions can be challenged based on the ratified treaties, conventions, or agreements.

France 

Article 52 and 55 of the French Constitution deals with the treaty-making process in France. According to Article 52 of the French Constitution, the power to enter and ratify international treaties is vested with the president. The Parliament’s role is only limited to rejecting or accepting the rectified treaty. It includes peace treaties, treaties relating to human rights and trade, and treaties of accepting or ceding Territories. Article 55 of the French Constitution provides that after a treaty is ratified by the president, overrides any conflicting domestic law that is already existing and such treaties can be enforced without passing any legislation.

America 

United States of America by the virtue of Article II Section 2 of the Constitution of America the President and the states both have different powers in the treaty-making process of the President negotiating and starting the process of treaty-making. After assigning the treaty it is presented before the senate for advice, consultation, and consent. There have been instances, such as the Treaty of Versailles after WW1 and The comprehensive Test Ban Treaty on nuclear weapons, where the US Senate has rejected treaties signed by the President. Therefore, the practice of consulting the important members of the senate before signing or negotiating a treaty has been developed so that it gets easier to approve the treaties later by the Senate.

Article VI of Section 2 of the American Constitution provides that the ratified treaties are the supreme law of the land and they will override any federal law, domestic law, or any constitutional provision in case of any dispute.

  • Argentina and Mexico follow the same pattern of treaty-making process.

Switzerland

The executive authority to negotiate and sign a treaty in Switzerland has been given to the Federal Council. This Council consists of seven members (elected through a joint meeting of both houses of the Parliament) headed by the President and the federal chancellor. Once a Treaty is signed it is ratified in four different ways – 

  1. The Federal Council, in some cases, is authorized by the Parliament not only to sign the treaty but also to bring it into force.
  2. Parliament needs to authorize some treaties before they come into effect.
  3. The treaties which are effective for or an indefinite period, Are subjected to an optional referendum as per Article 141 of Switzerland’s Constitution, 1999.
  4. Treaties that provide adherence to Supranational Organisations and organizations for collective security are subjected to Compulsory referendum as per Article 140 of Switzerland’s Constitution, 1999. 

Article 141a of Switzerland’s Constitution provides for the implementation of international treaties – 

  1. If subjected to the mandatory referendum – the federal assembly may provide amendments to the Constitution for the implementation of the ratified treaty.
  2.  If subjected to an optional referendum – the federal assembly may provide amendments to the law that provides for the implementation of the ratified treaty.

Canada 

Canadian Constitution Act, 1982 does not provide any specific provision related to the executive powers of 20 and making process however in this case of Attorney General For Canada Vs. Attorney General For Ontario (1894), The Privy Council held that the Federal Government has the exclusive powers to enter into international treaties on behalf of Canada. The Canadian Constitution also provides that only the provinces can make legislation to implement a treaty therefore the provinces are taken into a thorough discussion before entering into any treaty. The government seeks the approval of Parliament before ratifying any International Treaty although such provision is not mentioned in the Canadian Constitution.

United Kingdom 

In the UK the power of treaty-making has been affirmed by the House of Lords in the case of J. H. Rayner Limited Vs. DEPT. Of Trade And Industry (1990), The Court held that – 

  1. The power to negotiate, construe, observe, conclude, repudiate or breach is with the government.
  2. The parliament has the power to alter the laws.
  3. The courts have to enforce these laws.
  4. The judges have no power to make laws or grant specific performance or award any damages in order to enforce the treaties. 

In case of conflict between the domestic laws and provisions of international treaties or conventions, the domestic laws will prevail.

In the case of Salomon v Commissioner of Customs and Excise (1966), The Court of Appeal held that when the legislations are not clear on certain terms and more than one meaning can be interpreted from such legislation, the courts must assume that the parliament intended to fulfill the obligations are specified under the international agreements treaties or conventions ratified by the country.

OECD Countries 

OECD stands for the Organization for Economic Cooperation and Development. The organization consists of 38 members out of which 24 members follow a similar procedure for a treaty-making process that is the parliament has approved treaties in certain categories of treaties, excluding the self-executory treaties.

International treaties and their effect on domestic laws of India

As discussed above every country has different provisions to the effect of international treaties on their domestic laws. The effect of international treaties on Indian domestic laws has been discussed in various cases.

Jolly Verghese v. Bank of Cochin (1980)

The Supreme Court held that courts do not have the power to enforce the treaties entered by the Union of India and the treaties don’t become a part of the domestic laws in the country. 

Xavier v. Canara Bank Limited (1969)

Furthering the view the Kerala High Court, in this case, held that until and unless the parliament has passed any legislation to enforce International treaties, conventions, or agreements the said treaties cannot be treated as laws and courts do not have the power to enforce them. 

D.K Basu v. State of West Bengal (1996)

The Supreme Court in this case differed from the view of the Kerala High Court. The government of India ratified an International Treaty on Civil and Political Rights, 1966. While ratifying the treaty the government reserved a clause that provided for compensation to people who were wrongfully detained or imprisoned. The Supreme Court was of the viewpoint that this reservation is no longer valid as there have been precedents where the Court has granted compensation to individuals whose fundamental rights were infringed. Thus, this decision showed the affirmation towards the international convention ratified by India and also the readiness of the supreme court to accept changes for the welfare of the society. 

People’s union for civil liberties v. union of India (1997)

The question raised before the Supreme Court was to what extent the covenant and provisions of international treaties and conventions are enforceable by the courts. The Court concluded that all the provisions in the conventions that put into force the fundamental rights can be relied on by the courts and thus, are enforceable. 

Visakha v. state of Rajasthan (1997)

A similar question as to the effect of the provision of international conventions enforceable by the courts was taken into consideration by the Court. The issue was to make the workplace safe for women and protect them against sexual harassment so that Women are not stopped from exercising their fundamental rights. While coming to a decision the Court relied upon Articles 14, 15, 19(1)(g) of the Constitution read with Article 51(c), Article 253, Article 73, and entry 14 of the union list in the Seventh Schedule. Opined that if the provisions of the conventions are not consistent with the fundamental rights as guaranteed under the Constitution should be right read such as to enlarge the meaning of the provisions with that of fundamental rights and promote the basic objective of the rights guaranteed under Constitution. Therefore, the international laws when ratified make a part of the domestic laws until and unless there is no conflict with the provisions of domestic laws. 

Power of the government to cede and accept land

The power of government to cede and accept land is discussed at length in the landmark case of Maganbhai Ishwarbhai Patel Vs. Union Of India (1969), the case came to light when the petitioners challenged the government’s power under Article 235 and voiced concerns over the cession of the Indian territory of Rann of Kutch in Gujarat to Pakistan.

Maganbhai Ishwarbhai Patel v. Union Of India (1969)

Facts of the case 

There was a border dispute between India and Pakistan as to the Great Rann of Kutch, marshy land that lies between the Sindh province (Pakistan) and the mainland of kutch (India). Due to its marshy nature and being underwater for approximately four months a year the boundaries of the land were not defined. Both Pakistan and India approached the arbitration for resolving the dispute. As a result, the arbitration awarded the disputed land to Pakistan. India accepted the award and proceeded with the cession of the territory. While the treaty was being executed some petitioners approached the supreme court claiming that the land awarded to Pakistan is a cession of the union territory of India and any alteration to the boundaries of the union territory of India invites amendment of the first schedule of the Constitution (as discussed above). 

Argument presented by the Government of India

The government argued that the boundaries of the disputed area kept shifting due to the nature of the area. The boundaries of the Union of India were not certain and it did not include the disputed area. Therefore, the amendment to the 1st schedule was not attracted, and by the execution of the treaty, the boundary can be defined.

Supreme Court’s view on this case 

The Supreme Court supported the government by saying that the arbitration award does not obligate the Indian government to cede the Indian territory therefore no constitutional amendment is necessary to cede the Indian territory. Furthermore, it stated that the government of India has accepted the award by the arbitration, And put forward that when a Treaty comes into force it needs to be complied with by all the wings of the government that is the judiciary, the legislature, and the executive, or any of them who possesses the part to make the necessary changes.

The Court while deciding on the issue said that the case deals with international law as well as domestic law. Therefore, it discussed provisions from various other countries like the United States of America, England, and France to support the view that the Indian Constitution does not provide any clear direction towards enforcement of treaties as provided under the Constitution of America and France. 

The Court stated that the present case does not deal with the cession of Indian territory but defining the boundaries between two States. Courts discussed Article 253 which empowers the Parliament to make any law regarding the implementation of a treaty or an agreement. Also referred to the Article 1,3 and 73 and entries 13 and 14 of the list one in the Seventh Schedule to emphasize the powers that the Parliament has to implement International treaties with foreign Nations. 

Therefore the Supreme Court concluded that the power of government to seed the next line through International treaties and agreements is it is an exclusive power of the Parliament and no Constitutional provisions are needed to be amended but it cannot change the boundaries of the Union of India that have been already marketed without amending the first schedule of the Constitution. 

Re Beru Bari Union and Exchange of Enclaves ( 1960)

Facts

In a similar case the question of whether the parliament could cede an Indian territory to a foreign country under Article 3 was discussed. The facts of the case were as follows, during the time of the India-Pakistan partition the area of berubari Union No. 2 fell in west Bengal. However, there was always a dispute between Pakistan and India over the said territory. Therefore, the prime minister of India and Pakistan entered into an agreement to exchange berubari enclaves with Cooch Bihar enclaves that came under the territory of Pakistan. The matter was challenged in the Supreme Court. 

Judgment

The Supreme Court held that Article 3 of the Constitution allows the parliament to adjust the Indian territory internally and it only allows the government to absorb an acquired territory. No authority is given to give up an Indian territory to foreign nations therefore the agreement can take place only after amending Article 368 of the constitution. However, the Court held that since the agreement relating to berubai involves the cession of the internal territory of the country and its implementation would take place through Article 1 of the constitution the government of India can implement such agreement by amending Article 368. Hence, the 9th constitutional amendment was passed to give effect to the India-Pakistan agreement relating to the cession of territory. 

Conclusion

India has always fostered and respected International relations in our Constitution makers while drafting the Constitution put in a lot of effort to be clear about the provisions of international laws and legislation giving effect to International laws. Among many of the Articles, Article 253 of the Constitution of India enables the union of India to make laws for enforcing international treaties, conventions, or agreements while keeping in view the fundamental rights guaranteed to the citizens of India. the power of making International treaties has been clearly defined and separated. The judiciary has also maintained the separation of power given under the Constitution through various precedents; however, wherever necessary the court has tried to interpret these provisions in various ways to ensure that the maximum benefits of the laws and treaties go to the citizens of the country. Although this Article provides the Union of India with exclusive powers the Constitution-makers have kept in mind to keep six and balances at every stage and provide citizens with a medium to address their grievances. To be clear as to what our Constitution says on the enforcement of international treaties or conventions Articles 51,73, 253. 246 and entries 13 and 14 of the list one of the seventh schedules of the Constitution of India have to be read together.

References 

  1. Constitution of India bare act
  2. https://www.Constitutionofindia.net/Constitution_assembly_debates/volume/8/1949-06-13
  3. https://legalaffairs.gov.in/sites/default/files/Treaty-making%20power%20under%20our%20Constitution.pdf
  4. https://www.researchgate.net/publication/272707936_Status_of_Treaty_under_the_Constitution_of_SAARC_Countries_An_Approach_towards_Bangladesh_and_India_Perspective
  5. https://www.researchgate.net/publication/343473713_IMPLEMENTATION_OF_INTERNATIONAL_LAW_IN_INDIAN_LEGAL_SYSTEM
  6. https://indiankanoon.org/doc/1310955/
  7. https://laws-lois.justice.gc.ca/pdf/const_e.pdf
  8. https://www.constituteproject.org/Constitution/Switzerland_2014.pdf?lang=en
  9. https://www.senate.gov/civics/resources/pdf/US_Constitution-Senate_Publication_103-21.pdf
  10. https://www.foundingdocs.gov.au/resources/transcripts/cth1_doc_1900.pdf
  11. https://www.constituteproject.org/Constitution/France_2008.pdf?lang=en
  12. https://www.advocatekhoj.com/library/bareacts/Constitutionofindia/seventhschedule.php?Title=Constitution%20of%20India,%201949&STitle=Seventh%20Schedule

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