Position of Treaties under the Indian Constitution

Key Takeaways

• The Constitution of India does not contain a single comprehensive provision governing the making, ratification and enforcement of international treaties. Instead, treaty-related powers are distributed across Articles 51, 73, 246 and 253 and the Seventh Schedule.
• The Union executive has the power to enter into treaties and international agreements because foreign affairs and treaty-making fall within the sphere of the Union Government.
• Parliament has exclusive legislative power to make laws for implementing treaties, agreements and conventions under Article 253 of the Constitution.
• Parliament can enact treaty-implementing legislation even on a subject that ordinarily falls within the State List. Article 253 therefore operates as an important exception to the usual federal distribution of legislative powers.
• An international treaty entered into by India does not automatically become enforceable as domestic law merely because India has signed or ratified it. Legislation is generally required where treaty implementation changes existing law or affects the legal rights and obligations of individuals.
• Indian courts may use international conventions and treaty principles for interpreting domestic law, particularly when there is no conflicting Indian law. The Supreme Court applied this principle prominently in Vishaka v State of Rajasthan.
• If an international treaty conflicts with an existing Parliamentary enactment, Indian courts ordinarily apply the domestic legislation. International obligations cannot by themselves override a clear statutory provision.

What Is a Treaty?

A treaty is a formal agreement governed by international law and concluded between States or other recognised subjects of international law. Treaties may deal with matters such as trade, defence, taxation, human rights, environmental protection, extradition, territorial boundaries and diplomatic relations.

International agreements may be described by different names, including treaties, conventions, covenants, protocols, agreements and charters. Their precise title is less important than their legal nature and the intention of the parties to create obligations under international law.

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Treaties operate primarily at the international level. Once a State agrees to be bound by a treaty, it may acquire international obligations towards other contracting States. A separate question, however, arises regarding whether those obligations automatically become enforceable before the domestic courts of that State.

The Indian constitutional position makes an important distinction between these two stages: entering into an international obligation and giving that obligation effect within Indian law.

What Is the Constitutional Position of Treaties in India?

The Indian Constitution does not provide a detailed treaty-making procedure comparable to constitutional systems where legislative approval is expressly required before every treaty can become binding.

Instead, treaty-making and implementation are governed through several constitutional provisions dealing with executive power, legislative competence and international relations.

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The principal constitutional provisions are:

• Article 51(c), which encourages respect for international law and treaty obligations;
• Article 73, which defines the extent of the executive power of the Union;
• Article 246 and the Seventh Schedule, which distribute legislative subjects between Parliament and State Legislatures; and
• Article 253, which specifically empowers Parliament to legislate for implementing international treaties, agreements, conventions and decisions of international bodies.

Together, these provisions establish the constitutional framework governing India’s international treaty obligations.

What Is the Importance of Article 51 in Relation to Treaties?

Article 51 of the Constitution forms part of the Directive Principles of State Policy. It directs the State to endeavour to:

• promote international peace and security;
• maintain just and honourable relations between nations;
• foster respect for international law and treaty obligations in the dealings of organised peoples with one another; and
• encourage the settlement of international disputes by arbitration.

Article 51(c) is particularly relevant to treaties because it expressly refers to international law and treaty obligations.

However, Article 51 is part of the Directive Principles. Under Article 37, Directive Principles are not enforceable by courts, although they are fundamental in the governance of the country.

Therefore, Article 51(c) does not by itself make every treaty signed by India enforceable in Indian courts. Its significance lies in expressing the constitutional policy that India should respect its international obligations and in guiding legislation, executive action and judicial interpretation.

Who Has the Power to Enter into Treaties in India?

The power to enter into international treaties primarily belongs to the Union executive.

Article 73 provides that the executive power of the Union extends to matters with respect to which Parliament has power to make laws. Matters concerning foreign relations and treaties fall within Parliament’s legislative field and consequently within the executive sphere of the Union.

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The position is further supported by the Union List in the Seventh Schedule.

Several entries in List I are relevant to international relations. In particular:

Entry 10 deals with foreign affairs and all matters that bring the Union into relation with foreign countries.

Entry 13 concerns participation in international conferences, associations and other bodies and the implementation of decisions made there.

Entry 14 deals with entering into treaties and agreements with foreign countries and implementing treaties, agreements and conventions with foreign countries.

These entries establish that treaty-making and foreign affairs are matters entrusted to the Union rather than individual States.

What Is the Role of Article 246 in Treaty Matters?

Articles 245 and 246 of the Constitution establish the ordinary distribution of legislative powers between Parliament and State Legislatures.

Article 246, read with the Seventh Schedule, divides legislative subjects into:

• the Union List;
• the State List; and
• the Concurrent List.

Parliament ordinarily has exclusive power over matters in the Union List, while State Legislatures have primary legislative authority over matters in the State List. Both Parliament and the States may legislate on Concurrent List subjects, subject to the constitutional rules concerning inconsistency between laws.

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Treaty implementation, however, receives special constitutional treatment through Article 253.

What Is Article 253 of the Indian Constitution?

Article 253 is the most important constitutional provision concerning the domestic implementation of international agreements.

It empowers Parliament to make any law for the whole or any part of India for implementing:

• any treaty;
• any agreement or convention with another country or countries; or
• any decision made at an international conference, association or other body.

The provision begins with a non-obstante clause. This means that its operation is not restricted by the ordinary distribution of legislative powers contained in the preceding provisions of the chapter.

The importance of Article 253 is that it allows Parliament to enact legislation to fulfil India’s international obligations even where the subject matter of the treaty would ordinarily fall within the legislative domain of the States.

This position also forms an important qualification to the normal constitutional division discussed under the State List in the Indian Constitution.

Example of the Operation of Article 253

Suppose India enters into an international convention requiring uniform measures on a matter that ordinarily falls within the State List.

Under the usual federal distribution of powers, State Legislatures may have legislative competence over that subject. However, if legislation is required to implement the international convention, Article 253 enables Parliament to enact the necessary law.

Thus, international treaty obligations may constitutionally expand Parliament’s legislative competence beyond its ordinary fields under the Seventh Schedule.

Does Parliament Have to Approve Every Treaty Before India Enters into It?

The Constitution does not establish a general rule requiring prior parliamentary approval for every treaty entered into by the Union executive.

Treaty-making and treaty implementation must be distinguished.

The executive may negotiate and enter into treaties within the scope of its constitutional authority. However, where implementation of a treaty requires a change in Indian law, restricts existing rights, imposes new legal obligations on individuals or otherwise requires legislative authority, the executive cannot achieve those changes merely through the treaty.

Appropriate legislation must then be enacted.

This distinction between international treaty-making and domestic legal implementation is central to India’s constitutional approach.

Do International Treaties Automatically Become Part of Indian Law?

No. Treaties do not ordinarily become directly enforceable as Indian municipal law merely because India has entered into or ratified them.

India’s treaty practice broadly reflects a dualist approach. International law and domestic law operate in different legal spheres, although they frequently interact.

The relationship between these two systems is discussed more broadly under the relationship between international law and municipal law.

A treaty may bind India internationally while still requiring legislative action before its provisions can create or alter enforceable rights and obligations within India.

The position becomes particularly important where implementation of a treaty requires:

• amendment of an existing statute;
• creation of new offences or penalties;
• taxation or expenditure authorised by law;
• restriction of individual rights;
• imposition of liabilities on private persons; or
• alteration of existing legal rights.

In such cases, the executive cannot use an international agreement as a substitute for legislation.

What Did the Supreme Court Hold in Maganbhai Ishwarbhai Patel v Union of India?

Maganbhai Ishwarbhai Patel v Union of India is one of the leading decisions on treaty-making under the Indian Constitution.

The Supreme Court considered the distinction between the executive power to enter into international agreements and the legislative power necessary to implement them domestically.

The Court recognised that Article 253 concerns legislative power. Where an international treaty deals with a subject that would otherwise fall within the competence of a State Legislature, Parliament has power to enact legislation for its implementation notwithstanding Article 246(3).

At the same time, the Court explained that legislation is not required merely because an international agreement exists.

The crucial question is whether implementation of the agreement requires alteration of existing Indian law or affects legal rights.

Where executive action pursuant to a treaty does not restrict rights, modify existing law or otherwise require statutory authority, the executive may act within its constitutional powers.

However, where treaty implementation changes domestic law or restricts existing rights, legislative support becomes necessary.

Principle Emerging from Maganbhai

The case establishes a practical distinction:

Treaty-making: May generally be undertaken through executive power.

Domestic implementation affecting law or rights: Requires legislative authority.

This distinction continues to form the foundation of Indian treaty law.

What Is the Position under Jolly George Varghese v Bank of Cochin?

The Supreme Court further examined the domestic effect of international treaties in Jolly George Varghese v Bank of Cochin.

The dispute involved the arrest and detention of judgement-debtors. Reliance was placed upon Article 11 of the International Covenant on Civil and Political Rights, which provides that a person should not be imprisoned merely on the ground of inability to fulfil a contractual obligation.

India was a party to the Covenant.

The Supreme Court, however, explained that an international covenant does not automatically become enforceable municipal law merely because India is a party to it.

International obligations may encourage and influence legislative development, but where municipal legislation governs the matter, courts must apply the domestic legal framework unless the international obligation has been appropriately incorporated or can operate consistently with existing law.

The case therefore reinforces the principle that ratification of a treaty and enforceability of that treaty in domestic law are separate questions.

Can Courts Refer to International Treaties When Interpreting Indian Law?

Yes. The fact that a treaty has not been directly incorporated into domestic legislation does not mean that it has no relevance to Indian courts.

International conventions may be used as interpretative aids, particularly where:

• Indian law is silent or contains a gap;
• the treaty principle is consistent with constitutional provisions;
• there is no conflicting domestic legislation; and
• reliance on the international norm advances constitutional rights.

The leading example is Vishaka v State of Rajasthan.

Vishaka v State of Rajasthan

In Vishaka, the Supreme Court dealt with sexual harassment of women at the workplace at a time when India did not have specific legislation comprehensively regulating workplace sexual harassment.

The Court referred to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and other international norms.

It held that international conventions and norms that are consistent with fundamental rights and are not inconsistent with domestic law may be used to interpret constitutional guarantees.

The Court used these principles while interpreting Articles 14, 15, 19 and 21 and framed the Vishaka Guidelines.

The decision demonstrates that a treaty may have an important interpretative influence even where its provisions have not independently become enforceable domestic law.

What Happens When International Law Conflicts with Indian Legislation?

The general position is that clear domestic legislation prevails before Indian courts where it conflicts with an international rule that has not been incorporated into Indian law.

This approach was explained in Gramophone Company of India Ltd v Birendra Bahadur Pandey.

The Supreme Court recognised the importance of accommodating international law within municipal law wherever possible. Courts should generally interpret domestic legislation in a manner consistent with international law when the statutory language permits such an interpretation.

However, international law cannot override a clearly expressed Parliamentary enactment.

Therefore, the position may be summarised as follows:

• where domestic law and international law can operate harmoniously, courts should attempt to interpret them consistently;
• where domestic legislation is ambiguous, international law may assist in interpretation;
• where no domestic law occupies the field, compatible international norms may influence judicial interpretation; but
• where a clear statutory provision conflicts with an unincorporated international obligation, the domestic statute prevails in Indian courts.

India may still incur responsibility at the international level for breach of a treaty obligation, but that international responsibility is distinct from the question of which rule an Indian court must apply domestically.

Can Parliament Implement a Treaty on a State List Subject?

Yes. This is one of the most important consequences of Article 253.

Under the ordinary constitutional arrangement, State Legislatures possess legislative competence over subjects in List II of the Seventh Schedule. However, Article 253 enables Parliament to legislate even on such subjects when the legislation is enacted to implement an international treaty, agreement, convention or decision.

Article 253 therefore ensures that India’s ability to comply with international obligations is not defeated by the internal distribution of legislative powers between the Union and the States.

This power reflects the practical reality that India participates internationally as a single sovereign State, even though legislative authority is divided internally between different levels of government.

What Is the Difference Between Signing a Treaty and Implementing It?

The distinction can be understood through three stages.

Entering into the Treaty

The Union executive negotiates and concludes an agreement with another State or international entity within the sphere of its executive authority.

International Obligation

Once the treaty becomes binding according to its terms and applicable international law, India may acquire obligations on the international plane.

Domestic Implementation

If fulfilling those obligations requires changes to Indian law or creates enforceable rights, duties, restrictions or liabilities, domestic legislative measures may be necessary.

These stages explain why an international agreement can bind India internationally without every provision automatically becoming enforceable by individuals before Indian courts.

What Is the Role of the Judiciary in Giving Effect to Treaties?

Indian courts do not ordinarily transform treaties into legislation. Law-making remains within the constitutional domain of Parliament and the State Legislatures.

However, courts play an important role in harmonising domestic law with international obligations.

The judiciary may:

• interpret ambiguous domestic legislation consistently with international obligations;
• refer to international conventions while determining the scope of constitutional rights;
• rely upon international norms where there is a legislative vacuum and no conflict with existing law;
• recognise principles of customary international law that are not inconsistent with Indian statutes; and
• examine whether executive action taken in relation to treaties remains within constitutional and statutory limits.

Thus, judicial use of treaties is primarily interpretative rather than legislative.

Is India a Monist or Dualist Country in Relation to Treaties?

India is generally described as following a dualist approach to treaties, although the position is not completely rigid.

Under a strict monist system, international treaties may automatically become part of domestic law once they bind the State internationally.

Under a dualist system, international and municipal law are treated as separate legal systems. A treaty normally requires transformation or incorporation into domestic law before it becomes directly enforceable against individuals.

India broadly follows the second approach because treaties do not automatically override or amend domestic statutes.

However, decisions such as Vishaka show that unincorporated international conventions can still have significant interpretative value where they are consistent with the Constitution and domestic law.

The Indian position can therefore be understood as predominantly dualist in relation to direct treaty enforcement but receptive to international law in constitutional and statutory interpretation.

Constitutional Framework Relating to Treaties at a Glance

Position of Treaties under the Indian Constitution in Brief

The Indian constitutional position rests on a separation between international commitment and domestic enforceability.

The Union executive possesses broad authority in matters of foreign relations and may enter into treaties on behalf of India. Parliament, however, has the constitutional power to enact laws necessary for implementing international obligations domestically.

Article 253 gives Parliament particularly wide authority because treaty-implementing legislation may extend even to matters ordinarily reserved for State Legislatures.

At the same time, an international treaty does not normally amend Indian law merely through signature or ratification. Where existing legal rights are affected or domestic law requires modification, legislation is necessary.

Indian courts nevertheless attempt to interpret domestic law consistently with international obligations wherever constitutionally possible. International conventions may also help courts interpret fundamental rights when there is no conflict with existing law.

Conclusion

The position relating to treaties under the Indian Constitution reflects a balance between executive flexibility in international relations, parliamentary control over domestic law and judicial respect for international obligations.

The Constitution does not prescribe an elaborate procedure requiring parliamentary approval for every international treaty. The Union executive therefore plays the primary role in negotiating and concluding treaties. However, the executive cannot ordinarily use a treaty by itself to alter Indian legislation or restrict legal rights where statutory authority is required.

Article 253 gives Parliament extensive power to implement international obligations, even when the subject involved ordinarily belongs to the State List. Article 51(c), meanwhile, expresses the constitutional commitment to respect international law and treaty obligations.

Supreme Court decisions such as Maganbhai Ishwarbhai Patel, Jolly George Varghese, Gramophone Company of India and Vishaka establish the broader principle that treaties do not automatically become enforceable municipal law, but international norms can significantly influence the interpretation and development of Indian law.

The Indian approach is therefore predominantly dualist, while remaining open to the use of international law where it complements rather than conflicts with the Constitution and legislation.

Note: This article was originally written by Vasundhara Dhar (Birla Global University) and published on 10 June 2020. It was subsequently updated by the LawBhoomi team on 05 October 2026.