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Treaty-making and implementation in India: a constitutional paradox

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Indian Journal of International Law

Abstract

The nature and process of treaty-making and implementation in India is plagued with contradictions in law and in principle. While on the one hand, sufficient unanimity exists that India is a dualist state, requiring laws to bring treaties into operation domestically, on the other hand, the text of the Constitution appears to suggest otherwise. This Article attempts to resolve the apparent legal inconsistencies pertaining to treatymaking and implementation and the respective roles of the legislature and the executive.

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Notes

  1. A common understanding of India’s dualist nature stems from the legislative and judicial implementation of treaties. This Article highlights the former, in light of the existing constitutional scheme and its judicial interpretation, and presents a factual position of treaty-making and implementation. The mode of judicial implementation of treaties, a significant indicator of India’s dualist nature, is outside the scope of this Article. Entry into and implementation of treaties under the Indian constitution is the subject of a vast body of academic analyses. A review of this literature is beyond the limited scope of this Article, save to note that the argument that has been proposed here has not previously been made. For examples of the existing literature, see, for instance: PC Rao, The Indian Constitution and International Law (Taxman Publications, New Delhi, 1993); VG Hegde, Indian Courts and International Law, 23(1) Leiden J Intl L (2010) 53; VS Mani, Effectuation of International Law in the Municipal Legal Order: the Law and Practice of India, 5 Asian Yrbk Intl L (1995) 145; CG Raghavan, Treaty-Making Power under the Constitution of India, in, SK Agrawala (ed) Essays on the Law of Treaties (With Special Reference to India) (Orient Longman, Bombay, 1972).

  2. In many instances, due to lack of legislative efforts in treaty-making, courts have played an important role in enforcing treaties domestically. For instance, in Visakha v State of Rajasthan [(1997) 6 SCC 241] the Supreme Court incorporated India’s obligations to international norms on gender equality and precautions against sexual harassment in Indian law; in Vellore Citizens Welfare Forum v Union of India and Others [(1996) 5 SCC 647] the Supreme Court adapted principles of international environment law, such as the “polluter pays principle” and the “precautionary principle,” into domestic law.

  3. Arts. 73, 246, 253 and Entries 13, 14, List I, Schedule VII of the Constitution of India.

  4. This Article assumes that dualism requires domestic incorporation by “law,” i.e., statutory law requiring parliamentary approval and not “law” in the wider sense which might include any form of executive instrument with binding effect.

  5. For instance, the Communist Party of India severely opposed the civilian nuclear cooperation agreement with the United States; Why the CPI(M) and the Left oppose the nuclear deal, Prakash Karat, The Hindu (20 August 2007) <http://www.thehindu.com/todays-paper/tp-opinion/Why-the-CPIM-and-the-Left-oppose-the-nuclear-deal/article14819399.ece>.

  6. Before the signing of the Dunkel drafts, the Chief Minister of the State of West Bengal, Mr. Jyoti Basu expressed his reservation to the then Prime Minister, Mr. P.V. Narsimha Rao, stating that the acceptance of the drafts ‘will have far-reaching implications for our economic development and the future path that the country will follow… In the overall interest of the country, I feel that the States must be consulted formally and their views obtained before a final decision is taken,’ GATT, TRIPs and patent law – II, VR Krishna Iyer, The Hindu (12 September 2000) <http://www.thehindu.com/2000/09/12/stories/05122524.htm>.

  7. Bill to amend Art. 253, as proposed by George Fernandes, March, 1993; Bill to amend Art. 77, as proposed by M. A. Baby, February, 1992; Bill to amend Art. 253, as proposed by Chitta Basu, July, 1994; for a discussion on these, see National Commission to Review the Working of the Constitution (NCRWC), A Consultation Paper on Treaty-Making Power under our Constitution (2001), infra note 42 [46].

  8. Attorney General of Canada v Attorney General of Ontario (1937) AC 326, 347.

  9. A Nair, Treaty Making Power: A Comparative Perspective, 26(3) Cochin Univ L Rev (2002) 310.

  10. Sudhanshu Roy, Reconsidering Treaty-Making in India: An Argument for Reform Through the Prism of International Investment Agreements, 54 Indian J Intl L (2014) <https://ssrn.com/abstract=2669022>.

  11. Ibid, 284.

  12. International Covenant on Civil and Political Rights (ICCPR), 1966; Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), 1979.

  13. (1980) 2 SCC 360.

  14. Ibid [6].

  15. AIR 1983 Kar 85.

  16. Maganbhai Ishwarbhai Patel v Union of India (1970) 3 SCC 400 (hereafter “Maganbhai”).

  17. Union of India v Manmull Jain, AIR 1954 Cal 615.

  18. See Vellore Citizens’ Welfare Forum v Union of India (supra note 2) where the Court domestically incorporated principles of sustainable development through customary international law.

  19. Third Periodic Report submitted by the Government of India to the ICCPR, 17 June 1996 [8].

  20. See Cabinet Secretariat OM No 1/13/2/2010-Cab (23 August 2011) <http://cabsec.nic.in/writereaddata/handbook/english/1_Upload_1090.pdf>.

  21. For more, see infra note 42 [24] [34–36].

  22. Rajeev Dhavan, Treaties and People: Indian Reflections, 39(1) J Indian L Institute (1997) 1 [10].

  23. Shiv Kumar Sharma v Union of India, AIR 1969 Del [64] [73–74].

  24. B Shiva Rao, The Framing of India’s Constitution – Select Documents, vol IV (Universal Law Publishing, Lucknow, 2006) 264.

  25. Ibid;

  26. CG Raghavan, Treaty Making Power under the Constitution of India, in, SK Agrawala (ed) Essay on the Law of Treaties (Orient Longman, Madras, 1972) 245.

  27. In relation to the right to education, this obligation has been recognised by the Supreme Court in Ashoka Kumar Thakur v Union of India (2008) 6 SCC 1 [420–440] [487].

  28. Rataria DC v Bhuwalka Brothers Ltd, AIR 1955 SC 182; The Punjab Distilling Industries Ltd v CIT, AIR 1965 SC 1862.

  29. Ram Jawaya Kapoor and Ors v State of Punjab (1955) 2 SCR 225.

  30. As an illustrative example, India could not sign the Teesta river water sharing treaty with Bangladesh due to strong opposition by the State of West Bengal; for the Promotion of Greater Synergy, Pinak Ranjan Chakravarty, The Telegraph (25 March 2014)<https://www.telegraphindia.com/1140325/jsp/opinion/story_18113884.jsp#.WJBxSlN96M8>.

  31. AIR 1994 Bom 323.

  32. Maganbhai, supra note 16, at [81].

  33. Raghavan, supra note 26, 228.

  34. Ibid., 225.

  35. Entries 9 – Preventive detention for reasons connected with Defence, Foreign Affairs, or the security of India; persons subjected to such detention, Entry 10 – Foreign affairs; all matters which bring the Union into relation with any foreign country, Entry 11 – Diplomatic, consular and trade representation, Entry 12 – United Nations Organisation, Entry 15 – War and peace, Entry 16 – Foreign jurisdiction, Entry 17 – Citizenship, naturalisation and aliens, Entry18 – Extradition, Entry 19 – Admission into, and emigration and expulsion from, India; passports and visas, Entry 25 – Maritime shipping and navigation, including shipping and navigation on tidal waters; provision of education and training for the mercantile marine and regulation of such education and training provided by States and other agencies, Entry 36 – Currency, coinage and legal tender; foreign exchange, Entry 37 – Foreign loans, etc.

  36. United Provinces v Mt Atiqa Begum, AIR 1941 FC 16(25).

  37. Express Hotels (P) Ltd v State of Gujarat 3 SCC (1988) 677; Wealth Tax Officer v C.K. Mammed Kayi (1981) 3 SCC 23.

  38. 25 August 1947, vol V, Constituent Assembly Debates.

  39. Entry 3, List I, Schedule VII of the Government of India Act, 1935; para 15(1) of the Cabinet Delegation’s Statement, 16 May 1946; Statements of Mr. K. M. Munshi, 31 July 1947, vol IV, Constituent Assembly Debates; and the Hon’ble Sri C. Rajagopalachariar, 25 January 1947, vol II, Constituent Assembly Debates.

  40. Statement of Hon’ble Pandit Jawahar Lal Nehru, 13 December, 1946, vol I, Constituent Assembly Debates.

  41. Statement of Mr. K. M. Munshi, 25 August 1947, vol V, Constituent Assembly Debates (Proceedings).

  42. NCRWC, A Consultation Paper on Treaty-Making Power under Our Constitution (8 January 2001) [51] <http://lawmin.nic.in/ncrwc/finalreport/v2b2-3.htm>.

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  1. Vidhi Centre for Legal Policy, New Delhi, India

    Arghya Sengupta & Akriti Gaur

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Sengupta, A., Gaur, A. Treaty-making and implementation in India: a constitutional paradox. Indian Journal of International Law 57, 47–61 (2017). https://doi.org/10.1007/s40901-018-0074-y

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