The authority to make treaties or entering into binding agreements with other nations has international as well as national or internal aspects. As regards to the internal aspects of a treaty or agreement, the constitutional limitations if any, on the treaty making power come into operation. The Constitution of India accepts the federal principle as the basis of constitutional organisation. The division of powers and functions between the centre and states being one of the essential characteristics of our Constitution, it becomes incumbent on our part to consider in their entirety and applicability the following complex queries :
(a) In whom does the power to make and implement treaties reside ?
(b) What position do treaties enjoy under the Construction? Are treaties superior to the Constitution or the law of land ?
(c) Do treaties under the Constitution, in order to be effective, require ratification and/or approval? If yes, on whom does the power lie and what would be the effect of non-exercise of that power on treaties?
The various provisions that govern India’s “foreign affairs” are laid down in articles 51,73 and 253 read with a number of entries enumerated in List I of Schedule VII of the Indian Constitution. By virtue of articles 245 and 246 read with the above said entries of List I of Schedule VII, Parliament is vested with the exclusive power to deal with foreign affairs. However, a perusal of these provisions would reveal that our Constitution does not provide any clear direction about treaties such as to be found in the American and the French Constitution.
Although the Vienna Convention on the Law of Treaties regulates all the aspects of treaty making between nations, India has not ratified this convention yet, the Supreme Court has recognised its customary status. Under the Indian Constitution and as per judicial pronouncements, international law is not considered domestic or national law under legislation to that effect has been passed by an Indian Legislature. Thus an international treaty is not enforceable in India unless it has been ratified by the Parliament. However, it is always open to the Parliament to reject a treaty entered into by the Executive whereupon the treaty will have no effect whatsoever. Moreover, if any treaty or agreement violates any of the provisions of the Indian Constitution, it will have no validity in India and even the provisions of the Vienna Convention would be of no help.
Parliament is competent to make a law laying down the manner and procedure according to which treaties and agreements shall be entered into by the Executive as also the manner in which they shall be implemented. It bears repetition to say that under the Constitution of India, treaty making power is not vested on the Executive or the President – as has been done in some other Constitutions. It is squarely placed within the domain of the Parliament. Parliament can by making a law prohibit the Executive to enter into a particular treaty or particular kinds of treaties; similarly it can also direct the Executive to enter into a particular treaty or may disapprove or reject a treaty signed and /or ratified by the Executive. It is a different matter that Parliament has not chosen to make a law in that behalf, leaving the Executive totally free to exercise this power.
International treaties and conventions set yardsticks for countries in framing policies and making laws on various subjects. They also lay down benchmarks for the Indian legal system. Case in point can be the Vishakha v. State of Rajasthan, where the Supreme Court sought help of international conventions for the purpose of construction of Domestic law.
The Court observed:
In the absence of domestic law occupying the field to formulate effective measures to check the evil of sexual harassment of working women at all work places, the contents of International Conventions and norms are significant for the purpose of interpretation of the guarantee of gender equality, right to work with Human dignity in Articles 14, 15, 19(1) (g) and 21 of the Constitution and the safeguards against sexual harassment implicit therein. Any international convention not inconsistent with the fundamental rights and in harmony with its spirit must be read into those provisions to enlarge the meaning and content thereof, to promote the object of the Constitutional guarantee.
- International treaties/conventions also help the country in settling disputes with foreign states. Shimla Agreement 1972, the agreement with Bangladesh on sharing of Ganga waters and agreement with Nepal on harnessing water resources though not international treaties but bilateral ones can be cited as examples in this regard.
- Countries are becoming more and more dependent on each other on account of globalization set in motion due to advances in communication and information technology. The importance of international treaties therefore needs no emphasis. GATT/WTO agreements cases in point.
- India is a growing economic power and it has a vital role to play in International treaties. While India should not remain insulted it has also got to be watchful because it may so happen that some international treaties and conventions may not be in the interest of the nation in the long run.
- Agreements relating to the intellectual property rights, trade, agriculture and services may be biased in favour of the developed countries and detrimental to our interests. Therefore, the executive needs to take utmost care while signing treaties and must take the parliament into confidence.
International treaties/conventions also assist the country in truly becoming global. Under the Indian Constitution, Article 246 read with entries 14,15 and 16 of the Union List, it is the parliament which has the exclusive power to make laws concerning treaties and agreements with foreign countries.
Under Article 253 of the Indian Constitution, the Indian Parliament has the sovereign power to legislate on subjects in List 1 and List 2of the seventh schedule of the Constitution for implementing “any treaty, agreement or convention with any other country or countries for any decision made at any international conference, association or other body.” It is worth noting here that List 2 contains subjects in the domain of the State Legislature.
It is Parliament and not the State Legislature which is competent to approve treaties even in respect of subjects in the State List. This has been ratified by the supreme court in the Maganbhai Ishwarbhai Patel v. Union of India case wherein Justice Shah had rightly 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 of Legislature, the Parliament alone has, notwithstanding Article 246(3) , 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; thereby power is conferred upon the Parliament which it may not otherwise possess. But it does not seek to circumscribe the extent of the power conferred by the Article 73. If, in consequence of the exercise of executive power, rights of the citizen or others are restricted or infringed, or laws are modified, the exercise of power must be supported by legislation: where there is no restriction, infringement of the right or modification of the laws, the executive is competent to exercise the power.”
In Maganbhai Ishwarbhai Patel vs. Union of India [1969 SCR (3) 254], the apex court on 9th January, 1969, had said once a treaty was concluded by the Government in the exercise of its sovereign powers, it was the duty of all three branches – Legislature, Executive an Judiciary – to help implement it if it was within the constitutional framework.
Therefore, any international treaty or convention, if it has to become binding on the country, it has to become binding on the country, it has to be approved by the Indian Parliament, who represent the people of India has the inherent power to decide whether an international treaty/convention/agreement is good for the country or not. Article 253, thus empowers the people of India to decide whether an international treaty or convention should be followed or not.
The reality in the Indian Context, however, is that the Parliament has so far not made any laws regulating the procedure for entering into treaties and implementing them. In the absence of such legislation it is left open to the executive to sign and ratify international treaties. Article 73 of the Indian Constitution empowers the executive, in the absence of parliamentary legislation it is left open to the executive to sign and ratify international treaties. Article 73 of the Indian Constitution empowers the executive, in the absence of parliamentary legislation to make decision on matters on which the Parliament has the power to make laws.
This is how the Indian executive has been entering into international treaties and agreements. Taking advantage of the fact that Parliament has chosen not to make any law regulating the treaty-making power, the Union Government has been, taking advantage of Article 73 of the Constitution, freely entering into treaties on its own without reference to the Parliament. Only where legislation is required to give effect to the terms of a treaty or a convention or a covenant has the Central Government been approaching the Parliament to make laws in those terms. By way of example, it would be instructive to notice what happened in the case of TRIPs agreement.
 H.M. Seervai, Constitutional Law of India 110 (1967)
 NIrmal Bose v. Union of India, A.I.R. 1959 Cal. 506
 In re Berubari Union and Exchange of Enclaves, A.I.R 1960 S.C. 845 at 857
 Eshughavi Eleko v. Government of Nigeria, A.I.R. 1931 P.C. 248
 Ram Jawaya v. State of Punjab, A.I.R. 1955 S.C. 549
 Vishakha & Ors. v. State of Rajasthan, A.I.R. 1997 SC 3011
 Union of India v. Manmull Jain, A.I.R. 1954 Cal. 615 at 616-17.
 Bishambhar Singh v. State of Orissa, A.I.R. 1957 Ori. 247 at 256.
 Birma v. State of Rajasthan, A.I.R. 1951, 127
 Nanka v. Govt. of Rajasthan, A.I.R. 1951 Raj. 153 at 155
 Golak Nath v. State of Punjab, A.I.R. 1967 S.C. 1643
 Gazette of India, Extraord. Pt. 2 (i), p.405, November 5, 1971.
Contributed by: Vasundhara Dhar (Birla Global University)