5 Mar 2010

International Covenants not enforceable in India: High Court

In what has been the settled law of the law has received another affirmation in a recent decision by the Bombay High Court; that given the dualist structure under the Constitution of India, international covenants / treaties etc. do not have enforceability under the Indian legal system. In a writ petition filed before the High Court it has been challenged that the imposition of higher taxes on imported wine in the State of Maharashtra was illegal in as much as the GATT and other international agreements under the WTO (to which India is a party) has been agreed upon which sought to restrict the imposition of higher taxes on imported goods under the 'National Treatment' clause in the said agreements. 

Noting the various provisions of the Constitution and declaring the challenge to the levy as without basis, the High Court inter alia declared as under;

34. The Constitution Bench [in Maganbhai Patel’s case] then turned to Article 253 of the Constitution which deals with legislative relations i.e. distribution of legislative powers. The Constitution Bench observed that 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 has, notwithstanding Article 246(3) of the Constitution, 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 Constitution Bench further clarified that in terms, this Article deals with legislative power : 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 Article 73. The Constitution Bench clarified that if, in consequence of the exercise of executive power, rights of the citizens or others are restricted or infringed, or laws are modified, the exercise of power must be supported by legislation: where there is no such restriction, infringement of the right or modification of the laws, the executive is competent to exercise the power.

35. This judgment lays down the principles in respect of Article 253 and the effect of international treaties. They can be summarized as under :

“(i) The stipulations of a treaty duly ratified by the Central Government, do not by virtue of the treaty alone have the force of law.
(ii) Though the Executive (Central Government) has power to enter into international treaties/agreements / conventions under Article 73 (read with Entries 10 & 14 of List I of the VII Schedule to the Constitution of India) the power to legislate in respect of such treaties / agreements / conventions, lies with Parliament. It is open to Parliament to refuse to perform such treaties / agreements / conventions. In such a case, while the treaties / agreements / conventions will bind the Union of India as against the other contracting parties, Parliament may refuse to perform them and leave the Union of India in default. 
(iii) Though the applications under such treaties / agreements / conventions are binding upon the Union of India (referred to as “the State” in Maganbhai's case) these treaties / agreements / conventions “are not by their own force binding upon Indian nationals”.
(iv) The making of law by Parliament in respect of such treaties / agreements / conventions is necessary when the treaty or agreement restricts or affects the rights of citizens or others or modifies the law of India. 
(v) If the rights of citizens or others are not affected or the laws of India are not modified then no legislative measure is needed to give effect to such treaties / agreements / conventions.”
40. The upshot of the above discussion is that the Central Government has in exercise of its executive powers under Article 73 of the Constitution read with Entries 10 and 14 of List I of the VIIth Schedule entered into international treaties with which we are concerned here. The stipulations of the said treaties duly ratified by the Central Government do not by virtue of the treaties alone have the force of law. They are not by their own force binding upon Indian nationals. When the treaty or agreement restricts or affects the rights of citizens or others or modifies the law of India, it is necessary for Parliament to make a law in respect thereof under Article 253 of the Constitution and not otherwise. In any case, it is open to Parliament to refuse to perform such treaties. Admittedly, in this case, Parliament has not made any law under Article 253 of the Constitution. Therefore, the stipulations in the instant treaties do not have a binding effect. The argument that legislation is not a pre-requisite for the court to take cognizance and apply international policy must, therefore, be rejected.
41. The matter can be looked at from another angle as rightly argued by Mr. Khambatta. The Constitution recognizes only two sources of legislation i.e. Parliament (Article 246 read with List I and III of the Seventh Schedule and Article 253) and the State Legislatures (Article 246 read with List II of the Seventh Schedule to the Constitution). The legislative powers of these two sources (and of their delegates in the case of subordinate/delegated legislation) cannot under the Constitution be made subject to the provisions of international treaties / agreements / conventions albeit those to which the Union of India (vide its executive powers) is a signatory.

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