Position Relating to Treaties under the Indian Constitution

Introduction

The power to make treaties or enter into binding agreements with other nations involves both international and national (or internal) considerations. When it comes to the internal aspects of treaties or agreements, any constitutional limitations on the treaty-making power come into play. The Constitution of India embraces the federal principle as the foundation of its constitutional framework. Given the division of powers and functions between the central government and the states, which is a key feature of our Constitution, it is necessary to address the following questions in full:

• Who holds the power to make and implement treaties?
• What status do treaties have under the Constitution? Are treaties superior to the Constitution or the laws of the land?
• Do treaties require ratification or approval to be effective under the Constitution? If so, who holds this power, and what happens if this power is not exercised?

The relevant provisions governing India’s "foreign affairs" are found in Articles 51, 73, and 253, along with various entries listed in List I of Schedule VII of the Indian Constitution. Under Articles 245 and 246, read in conjunction with the entries in List I of Schedule VII, Parliament is granted exclusive authority over foreign affairs. However, these provisions do not provide clear guidance on treaties, as is found in the American and French Constitutions.

Status of Treaties under the Constitution

Although the Vienna Convention on the Law of Treaties governs treaty-making between nations, India has not ratified this convention. Nevertheless, the Supreme Court of India has recognized its customary status. Under the Indian Constitution and according to judicial interpretations, international law is not considered domestic or national law unless it has been enacted by the Indian Legislature. Therefore, an international treaty is not enforceable in India unless Parliament ratifies it. Parliament retains the authority to reject a treaty entered into by the Executive, rendering the treaty ineffective. Furthermore, if any treaty or agreement violates the provisions of the Indian Constitution, it will have no validity in India, regardless of the Vienna Convention.

Power to Make Treaties

Parliament is empowered to enact laws specifying the procedure for how treaties and agreements should be entered into by the Executive and how they should be implemented. It is important to note that, under the Indian Constitution, the power to make treaties is not vested in the Executive or the President, as is the case in some other constitutions. Instead, this power resides with Parliament. Parliament can, through legislation, prohibit the Executive from entering into certain treaties, direct the Executive to enter into specific treaties, or disapprove or reject a treaty signed or ratified by the Executive. However, Parliament has not enacted such legislation, leaving the Executive with the freedom to exercise this power.

International Treaties and Conventions

International treaties and conventions set standards for countries when framing policies and enacting laws on various subjects. They also serve as benchmarks for the Indian legal system. For example, in Vishakha v. State of Rajasthan, the Supreme Court referred to international conventions to aid in the interpretation of domestic law.

The Court observed:

"In the absence of domestic laws addressing the issue of sexual harassment of working women at all workplaces, the content of international conventions and norms becomes significant for interpreting the guarantees of gender equality, the right to work with dignity under Articles 14, 15, 19(1)(g), and 21 of the Constitution, and the safeguards against sexual harassment implicit in these rights. Any international convention that is consistent with fundamental rights and aligns with the spirit of the Constitution should be integrated into these provisions to expand their meaning and content, thereby promoting the objectives of the Constitutional guarantees."

Role in Globalization and International Relations

Globalization, driven by advancements in communication and information technology, has increased interdependence among countries, highlighting the importance of international treaties. The GATT/WTO agreements are prime examples of this.

As India continues to grow as an economic power, it has a vital role in international treaties. However, India must remain vigilant, as some international treaties and conventions may not serve the nation's long-term interests. Agreements related to intellectual property rights, trade, agriculture, and services could be biased in favor of developed countries, potentially harming India's interests. Therefore, the executive must exercise great caution when signing treaties and ensure that Parliament is fully informed and involved.

Article 253 and Parliamentary Authority

International treaties and conventions also help India integrate into the global community. Under the Indian Constitution, Article 246, read with Entries 14, 15, and 16 of the Union List, grants Parliament the exclusive power to make laws concerning treaties and agreements with foreign countries.

Article 253 of the Indian Constitution gives Parliament the sovereign power to legislate on subjects in both List 1 and List 2 of the Seventh Schedule for implementing any treaty, agreement, or convention with other countries or decisions made at international conferences, associations, or other bodies. It is noteworthy that List 2 includes subjects typically within the domain of the State Legislature.

It is Parliament, not the State Legislature, that is competent to approve treaties, even for subjects in the State List. This was affirmed by the Supreme Court in the Maganbhai Ishwarbhai Patel v. Union of India case, where Justice Shah observed, "The effect of Article 253 is that if a treaty, agreement, or convention with a foreign state deals with a subject within the competence of the State Legislature, Parliament alone, notwithstanding Article 246(3), has the power to make laws to implement the treaty, agreement, or convention or any decision made at any international conference, association, or other body."

The Article deals with legislative powers, granting Parliament authority it might not otherwise have. However, it does not limit the power conferred by Article 73. If the exercise of executive power restricts or infringes on the rights of citizens or modifies laws, legislation must support that exercise of power. Where there is no such restriction, infringement, or modification, the executive is competent to exercise its power.

Practical Application in India

In the Maganbhai Ishwarbhai Patel v. Union of India [1969 SCR (3) 254] case, the Supreme Court stated on January 9, 1969, that once a treaty is concluded by the Government in the exercise of its sovereign powers, it is the duty of all three branches—Legislature, Executive, and Judiciary—to help implement it if it is within the constitutional framework.

Therefore, any international treaty or convention must be approved by the Indian Parliament to become binding on the country. Parliament, representing the people of India, has the inherent power to decide whether an international treaty or convention is beneficial for the country. Article 253 thus empowers the people of India to decide whether an international treaty or convention should be followed.

However, in practice, the Indian Parliament has not yet enacted any laws regulating the procedure for entering into treaties and implementing them. In the absence of such legislation, the executive is left free to sign and ratify international treaties. Article 73 of the Indian Constitution empowers the executive, in the absence of parliamentary legislation, to make decisions on matters on which Parliament has the power to legislate.

This is how the Indian executive has been entering into international treaties and agreements. Taking advantage of the fact that Parliament has not legislated to regulate the treaty-making power, the Union Government has, under Article 73 of the Constitution, freely entered into treaties without consulting Parliament. Only when legislation is required to implement the terms of a treaty, convention, or covenant does the Central Government approach Parliament to enact the necessary laws. An example of this is the TRIPs agreement.