This article is written by Arpita Tripathy, a student of KIIT School of Law. 

Introduction

In this era of globalization, it is necessary to create relationships between countries because in today’s world, it is impossible for a country to survive independently without any relationship with other countries. According to Vienna Convention, treaty means an agreement between two countries in an instrument. These treaties are governed by International Law. The Directive Principle of State Policy under Article 51 of the Constitution of India confers a duty to promote international peace by respecting International law, the treaties and agreement between the Union and Foreign countries. 

Meaning of federalism

India is a huge and diverse country and governance in the country would be difficult if all the responsibility is on the Central Government. Federalism is a system of governance where the powers are divided between the State and the Central Government. The Central and the State government have their separate tasks assigned. This division of powers between the State and the Central Government is called ‘Separation of Power’. Federalism has heaps of benefits which helps a diverse country like India maintain this unique feature and enhances the ease of governing the country.

Federalism in India has been influenced by many different countries having two-tier governance systems, Central Government and State Government. However, India does not truly follow the federal system of Government. It has incorporated the major advantages of the federal form of governance and has let go of provisions which acted as drawbacks of federalism. India follows a system of federalism with a parliamentary form of government with more power given to the central government. This kind of federalism is termed as ‘quasi- federalism’ where the governance system has both unitary and federal character in it. India is a country having a union of states, but the States do not have the power to leave the country.

Article 246 of the Constitution distributes the legislative powers between the Central and the State Government. Under Article 246(1), it has been enumerated that the Central Government has the power to legislate on the entries of List I in the 7th Schedule. Some of the matters in the Central list include all matters where there is an involvement of relation between Union and a foreign country, treaties, agreements with foreign countries, matters relating to foreign jurisdiction (Entries 13,14,15,16) etc. The State Government has the power to make laws on the entries mentioned in List II of 7th Schedule. The power to make laws on the entries mentioned in List III (Concurrent List) of the schedule is conferred on both Central and State Government. If a subject matter is missing from the lists, then the Parliament has the power to legislate on the matter. 

A comparative study 

The United States of America

The United States of America has a Presidential form of Government with federalism. In the USA, there is a clear separation of power between the different organs but in India, the focus is on cooperation and coordination. The U.S also recognizes federalism where the power of the Central Government is supreme. In case of any dispute between legislation, the law enacted by the Central Government would prevail. If a treaty or agreement is entered by the Federal executive after the approval by the Senate then under Article IV of the U.S Constitution, such treaty or agreement will be binding on the States. Even if the treaty affects a subject matter which was in control of the State Legislature, even then the treaty would prevail. 

Canada

In Canada, the power of entering into treaties and agreements with foreign countries lies with the Federal Government. The dominion parliament however, cannot enter into a treaty or agreement without the consent of the States if it affects the subject matter which the State has power to enact laws. When the Government is entering into an important treaty then the Government seeks approval from the Parliament, however, this requirement is not mandatory. 

Australia

India has adopted many features of federalism from Australia. Australia is a common law country with a federal system of Governance. Just like India, there is a distribution of power between the Centre and the State. When the country intends to enter into a treaty or agreement with a foreign country, then the treaty is placed in both the houses for 12 sitting days. No treaty will be ratified and will not come into effect in Australia if there is no legislation in relation to the treaty or agreement. 

Position in India

The entries (10-21) of List I provides the Central legislature with the power of enacting laws in the matter of foreign affairs. Entry 14 of the Union list (List II) has enumerated that the Central legislature has power. Under Article 253 of Indian Constitution, the Parliament has the power to legislate any law relating to an international treaty or an agreement. The Parliament also has power to enact laws for implementation of international treaty or agreement even if the subject matter of the treaty or agreement is in List II. Even if the subject matter of the treaty is in the State list, even then the enactment for implementation of such a treaty can be done by the Parliament. This means that Article 253 overrides the provision of Article 246(2).

Thus, there shall be no conflict between the State and the Centre regarding foreign affairs as it is clearly separated. The Parliament has been elected by the people and therefore, it is left on the representatives of the people to decide if a particular treaty is good or bad for the country. However, there is no proper procedure as to how to enter into a treaty. Under Article 73 of the Constitution, the Government of India has the executive power to exercise rights and duties by virtue of treaty and agreement. In addition to it, the Government takes the advantage of this provision and enters into treaties without referring it to the Parliament. 

However, it is important to note that, if a treaty or agreement affects the rights of the citizen or brings about a change in the law then it is necessary to make a law under the authority. If the treaty does not affect the rights or does not modify a law, then no legislative action is mandatory. 

Evolution of treaty-making power in India  

Before independence, the power to implement the treaties and agreements under Government of India Act, 1935, was with the Federal Legislature under Entry 3 of List I of Schedule Seven. However, the Federal legislature was not allowed to make laws regarding the subject matter which were to be dealt with by the State Legislature without the consent of the Governor.

Going through the constitutional debates we can find that the Constituent Assembly intended to confer the power of handling foreign affairs with the Central Legislature. The word ‘State’ instead of ‘Union’ in Article 51 clearly demonstrates the intention of the Constituent Assembly. The intention of the Constituent Assembly was such because they were following the British structure of handling treaties. They could not predict that may be in future, the States may not agree with the treaty entered by the Central Legislature. 

Provision to acquire and cede territory

In British India, for the cession of territory, the approval of Parliament was not needed. It has still not been incorporated in the Constitution as to who has the power to acquire and cede territory. However, going through different provisions of the Constitution it can be said that, in India, the power to acquire and cede territory is a sovereign power. Article 245 and Article 246 and the entries in the union list clearly demarcates the power of the Centre to enact laws relating to foreign affairs. Therefore, the power to acquire and cede the territory should also remain with the Centre. However, if anything else remains then, the residuary power of the Central legislature can cover that up.

Is the treaty a supreme law

In the U.S treaty is the supreme law of the land. However, in India even after the treaty has been entered into by the Government legislation is required for the implementation of the treaty.

Constitutional limitations

If a treaty violates the fundamental rights or destroys some part of the Constitution then this cannot be accepted, no treaty can destroy our already existing codified federal laws. It has to be taken into account that the constituent assembly would never intend to modify or destroy the Constitution by a treaty and not the regular procedure of amendment. 

Landmark cases

• Ministry for immigration and ethnic affairs v. TEOH– this is a case of Australia which specifically stated that the treaty can only be a part of law if there is a domestic law relating to it.
• Maganbhai Isharwarbhai Patel v. Union of India- in the instant case, there was a border dispute between India and Pakistan regarding the territory of the Great Rann of Kutch. The nature of the territory of Kutch was such that it was underwater for a few months and remained as a marshy land for the rest of the year. As a result of this, the Kutch always kept shifting and its boundary was not clearly defined. Consequently, there developed huge tension between the two countries. They agreed on creating a tribunal which would decide on the boundary and they would accept the findings of the Tribunal. They also agreed to pay an award for the construction of a proper boundary on the border. The Tribunal accepted the contention of Pakistan that the area belonged to them. 

The petitioners approached the Supreme Court of India to stop the Government of India from ceding the territories to Pakistan. The petitioners did not claim that the award was illegal. The Union of India contended that the tribunal was set up just for determination of the boundary and not for the cession of territory. The court held that the award does not mean ceding of territory and thus, no amendment is required. The Court further stated that if a treaty or agreement involves a subject matter which a State has the power to decide on, then only the Parliament can enact laws for the implementation of the treaty. Further, if a treaty violates the rights of citizens or destroys any part of the Constitution then an amendment has to be made. However, if the treaty does not affect the rights nor destroys the Constitution then no legislative action is required. 

• Re Berubari Case– after the Radcliffe Award, 1947, Berubari was declared as a part of West Bengal. Later, a dispute was raised by Pakistan that Berubari belonged to Pakistan (now Bangladesh). Because of the dispute, an agreement was entered into by the Prime Ministers of both the countries. The agreement was known as Nehru-Noon Agreement and provided for the half-half division of Berubari between India and Pakistan. There was a lot of resentment among the people. The President of India went to the Supreme Court for advice on the matter. The Court said, the Parliament has the power under Article 368 to amend the Constitution. No cessation of the territory can take place without amendment.
• In the case PB Samant v. Union of India, a petition was filed to stop the government from entering into an agreement without prior approval from Parliament or State Legislature. The contention was that the subject matter of the treaty revolved around agricultural products which were under the State Legislature. The Court held that the executive has the power to enter into an agreement but the implementation of the agreement can only be done by the Parliament or State Legislature.
• However, this was not accepted in the case of Vishaka v. State of Rajasthan. The case is a landmark case of a woman who was subject to gang rape while she was trying to stop child marriages as a part of her job at a Social Development Programme. A Public Interest Litigation was filed by an NGO in the Supreme Court of India. To announce it’s verdict, the Court relied on the International Convention on Elimination of All Discrimination on Women. Even when the convention has not been expressly and in exact words been incorporated in the domestic law, even then the Convention can be used if it goes with the spirit of the Constitution. 

Conclusion

India is a quasi-federal country who has incorporated the benefits of federalism and changed certain aspects of it which reduced flexibility. India follows a system where the power of the Centre is more than the power of the State legislature. 

Treaty or an agreement between countries are very essential in today’s world. The executive has the exclusive power to enter into a treaty. But the States would be at a disadvantageous position if they do not even have a say on the treaties which revolve around the State Legislature’s subject matter. However, the laws relating to them should be clearly defined along with the procedure to be followed. 

References

• http://www.ebc-india.com/lawyer/articles/71v2a5.htm
• https://legalaffairs.gov.in/sites/default/files/Treaty-making%20power%20un der%20our %20Constitution.pdf

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