Judicial review of Executive action to enter into international treaties: The Law Revisited

On this blog we earlier had written about the non-enforceability of International treaties in India in the absense of a domestic law. On the similar parallel we have another conceptual position wherein the power to enter into international treaties is vested solely with the Executive. Under the Constitution of India, the power to enter into international treaties is vested with the Government of India and the Parliament has the sole prerogative to enforce these laws in India. Time again the decision of the Government to enter into such treaties has been challenge but at all times this has been repelled by the judiciary.


As a backgrounder to this post, we would like our inquisitive readers to have a look at the 'Consultation Paper on Treaty-Making Power under our Constitution' of the National Commission to Review the Working of the Constitution, which traces the comparable provisions in other jurisdictions to draw meaningful insights into the Indian paradigm. As for the judicial treatment meted out to the challenged of the power, the most appropriate decision we can think of is that of the Delhi High Court in which the challenge to the Government signing the GATT agreement was put up.

A Division Bench of the Delhi High Court in Vandana Shiva And Ors. vs Union Of India and Ors. dismissed the writ petition holding that it was beyond the realms of the judiciary to sit in judgment over the executive's decision to enter into an international treaty. Surveying the law in United Kingdom and the United States, the High Court also referred to the decision of the Supreme Court to hold thus.

The High Court observed the position of law in the following terms;

(9) The point for consideration is whether, this Court, in exercise of powers under Article 226 of the Constitution of India can intervene or restrain the Union of India from entering into treaty obligations and whether this Court can go into the validity of the treaty provisions and economic policies that are at the root of this treaty, even before a law is made by legislative? 

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(11) Ever since the Dunkel proposals were signed and the proposals of the Gatt were being negotiated, there had been a nation-wide debate as to the advantage or disadvantages of the GATT agreement by several advantages and critics. The treaty being entered into under the executive power of the Government, there is indeed a content of political decision in this behalf. We have already set out the points raised by the petitioners in Our statement of facts. Suffice it to say that we are now concerned basically with the scope of jurisdiction of this Court.

(12) The GATT treaty, signed a few days ago, runs into 22,000 pages and the papers weigh 170 kilos. The final Act will run into about 500 pages. The GATT envisages the formation of a World Trade Organisations, one of the greatest historical events of this country. It is with reference to some of the clauses of this agreement that we are concerned. The agreement is a composite one and each country perhaps thinks that there are beneficial clauses in its forum and the advantages outweigh the disadvantages, if any. 

(13) The obligations and the scope of judicial review of such obligations have come up for consideration in England, America and in our country too.

(14) In England, "the courts have traditionally adopted the view that, as a general rule, neither the making of a treaty nor the performance of the obligations under the treaty, can be reviewed by the Courts. (Rustomjee Vs. R.) (1876). 2.Q.B.D. (JH. Rayner (Mincing Lane) Ltd. Vs. Department of Trade and Industry) 1990 (2) A.C. 418 (H.L.). There.is much. to be said for not reviewing a decision to enter into a treaty. Such a decision will invoke highly political considerations unsuitable for judicial review. In addition in area ties will normally have no legal effect within the United Kingdom until legislation implementing the treaty is enacted and so will not normally give rise to justiciable issues. In Blackburn Vs. Att. General (1971 .1. W.L.R. 1037 (CA), the court declined to entertain an action for, inter-alia, a declaration that it was ultimately the power of the Crown to accede to the treaty of Rome creating the European Community. The Court pointed out that the treaty making power lay with the Crown, not the Courts, and an exercise of the power could not be challenged in the Courts. The Courts would take no notice of a treaty until it was embodied in legislation enacted by parliament". (Judicial Remedies in Public Law by Clive Lewis (1992) pp 18, 19). Exceptional cases are those where a statute has expressly or impliedly placed limitations on the making of the treaties or the performance of treaty-obligations. In Laker Airways Vs. Department of Trade (1977 Q.B. 643), the Court of Appeal held that there was an implied statutory fetter on the prerogative power of the Crown arising under a Treaty between the United Kingdom and the USA to withdraw the designation of an airline as a suitable airline to operate a particular route. In Ex. p. Molyneaux 1986 (1) W.L.R. 331, Taylor, J., considered whether Article 6 of the Union with Ireland Act, 1800 or section 12 of the Northern Ireland Constitution Act, 1973 restricted the power of the Crown to enter into an agreement with the Irish Republic and concluded that they did not (ibid p.l9). In Blackburn Vs. Att. General, the Court of Appeal held that they did not have jurisdiction to entertain an application for a declaration that, if the United Kingdom were to accede to the Treaty of Rome creating the European Economic Community, that would constitute a partial. surrender of sovereignty which would be incompatible with the common law rule that the sovereignty of Parliament could not be fettered (ibid p. 19-20).

(15) Although in Laker's case. Lord Denning felt that treaties could be reviewed as being part of discretionary power, the House of Lords, in Reuner's case held that treaties did not raise justiciable issues which could be dealt with by the municipal courts. In Rayner's case (1990 (2) HC 418 Lord Templeman observed (at p. 476 :

"THE Government may negotiate, conclude, construe, observe, breach, repudiate or terminate a treaty. Parliament may alter the laws of the United Kingdom. The Courts must enforce those Laws : Judges have no power to grant specific performance of treaty or to award damages against a sovereign state for breach of a treaty or to invent laws or misconstrue legislation in order to enforce a treaty". 

(16) In the U.S.A., the position is not different. "The refusal of the Supreme Court in recent dockets to involve itself in foreign relations has likewise exemplified its desire to ignore the siren call of the political realm. For example, during the Vietnam war, the Court repeatedly declined many ardent pleas to rule on the constitutionality of the U.S. involvement. (Massachusetts Vs. Laird. 400 U.S. 886 (1970) ; Also, when President Carter acted on his own initiative to end the Mutual defense Treaty between the United States and Taiwan, this action was challenged in Courts by a number of Senators and representatives. The Courts, consistent with its traditions, refused to involve itself in this political question (Goldwater Vs. Carter 444 U.S. 886 (1979) (See Judicial Process in America, by Robert A. Carp. 2nd Ed. 1993 p.l41). In Goldwater's case, John Rehnquist J. (as he then was), with whom Chief Justice Burger, Stewart, Stevens JJ concurred, observed :

"I am of the view that the basic question presented by the petitioner in this case is "political" and, therefore, non-justiciable because it involves the authority of the President in the conduct of. our country's foreign relations and the extent to Which the Senator or Congress is authorised to negate the action of the president". 

(17) It is clear that the English and American Courts are almost generally reluctant to interfere.

(18) The scope of interference with treaties case up for consideration before our Supreme Court in Maganbhai Vs. Union of India . In that case, Hidaytullah C.J., speaking for the Constitution Bench, reviewed the practice in U.K., France, U.S.A. etc. There, the petitioners sought to restrain the Government of India from ceding, without the approval of Parliament, areas with Rann of Kutch to Pakistan in accordance with Indo-Pakistan Western Boundary Award dated 19.2.1968. It was held that mere apprehension of petitioners that they would be deprived of their fundamental rights in future, was not enough. Adverting to the Contention that a constitutional amendment was necessary for cession, the Supreme Court held that it was not sitting in appeal over the Award of the Tribunal and all that the Court could determine was whether there was concrete and solid evidence. The Government could not be restrained from Implementing the award even though there was no constitutional amendment. In that context reference was made to treaties which require Legislation to be made and also to 'self executing' treaties and the legal theories based thereon (paras 25,79). Reference was also made therein to In re : Berubari Union ex which was a case of a reference under Article 143. In para 79 after referring to Article 73, the executive power of the Union, Hidayatullah C. J. observed :

"THE executive is, qua the State, competent to represent the State in all matters international and may be agreement, convention or treaties incur obligations which in international law are binding upon the State, But the obligations arising under the agreements or treaties are not by their own force binding upon Indian Nationals. The power to legislate lies with the Parliament under Entries.10 and 14 of List I of the Seventh Schedule".

The Supreme Court also stated (para 81):

"BUT making of law under that authority (Seventh Schedule) is necessary when the treaty or agreement operates to restrict the rights of citizens or others or modifies the Laws of the State. If the rights of the citizens or others which are justiciable are not affected, no legislative measure is needed to give effect to the agreement of treaty".

Finally it was held that, 

If in consequence of the exercise of the executive power (under Article 73), rights of 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 excise the power"

(19) The above decision makes it clear that the making of a law under the authority of the relevant entry in the seventh Schedule is necessary if the treaty is to operate and restrict the rights of the citizens or other or if it modifies the existing laws of the the State. But, if the rights of the citizens or others are not affected by the treaties, no legislative measures are needed to give effect to the treaty.

(20) The question comes up again before the Supreme Court in folly George Verghose Vs. Bank of Cochin (A.LR. 1980 Sc 470). The Supreme Court was dealing with the question whether the right to arrest and detain a person under section 51 read with Order 21 rule 37 of Civil Procedure Code was violative of Article Ii of the International Covenant on Civil and Political Rights and Article 21 of the Constitution of India. In that case too, while not striking down the provisions of the Code, the Supreme Court observed that until the municipal law is changed to accommodate the Covenant, it is not binding on the Municipal Courts. The decision of the Kerala High Court in Xavier Vs. Canara Bank Ltd. (1969 Ker. L.T. 927) was approved. We are, therefore, of the view that the signing of the Gatt by the Union of India by itself doesn't furnish any cause of action to claim that the fundamental rights of the citizens are affected or that the provisions of the Indian Patent's Act are offended by the Treat)'. This flows directly from the decisions of our Supreme Court.

(21) Even otherwise, it is not for this Court to go into the wisdom of the economic policies enunciated by the Government and law is so stated by our Supreme Court in more than one case. In State of M.P. & Ors. Vs. Nandlal faiswal & Ors., Supreme Court observed that 

"We must not forget that in complex economic matters every decision is necessarily empiric and it is based on experimentation or what one may call trial and error method and, therefore, in- validity cannot? be tested on any rigid 'a priori' considerations or on the of any strait-jacket formula. The Court must, while ad- judging the constitutional validity of an executive decision relating to economic matters grant a certain measure of freedom or play in the joints to the executive .......... The Court cannot strike a policy decision taken by the State Government merely because it feels that another policy decision would have been fairer or wiser or more scientific or logical".

(22) Again, in Shn Ritaram Sugar Company Ltd. and another Vs. Union of India and Ors. 1990 (3) SCC 233, Supreme Court pointed out that what was the best for the industry and in what manner the policy should be formulated and implemented, bearing in mind the object of supply and equitable distribution of the commodity at a fair price in the best interest of the general public, was matter for decision exclusively between the province of the Central Government. Such matters do not ordinarily attract the power of judicial review. It is also pointed out that even some persons are at a disadvantage or would suffer loss on account of the formulation and implementation of the Governmental policies, that was not by itself sufficient ground for interference with the Government action.

(23) In yet another case, R.K. Garg Vs. Union of India and others, the Constitution Bench of the Supreme Court pointed out that laws relating to economic activities should be viewed with greater latitude than laws touching civil rights".

(24) Again in Peerless General Finance and Investment Co. Ltd. and another Vs. Reserve Bank of India, the Supreme Court observed that "Courts are not interfere with economic policy which is the function of experts. It is not the function of the Courts to sit in judgment over matters of economic policy and it must necessarily be left to the ex- pert bodies. In such matters even experts can seriously and doubtlessly differ. Courts can not be expected to decide them without even aid of experts..... ' This Court has repeatedly said that the matters of economic policies are to be left to the Government."

(25) The above said decisions of the Supreme Court dealing which non-interference with economic policies of the Government have been followed recently by Supreme Court in Union of India Vs. Hindustan Development Corporation.

(26) It is also well remember the observations made frankfurter, J. in Morey Vs. Dond (354 Us 457) which reads as under :

"IN the utilities, tax and economic regulation cases, there are good reasons for judicial self-restraint if not judicial deference to legislative judgment. The legislature after all has the affirmative responsibility. The Courts have only the power to destroy, not to reconstruct. When these are added to the complexity of economic regulation, the uncertainty, the liability to error, the bewildering conflict of the experts, and the number of times the judges have been overruled by events self-limitation can be seen to be the path to judicial wisdom and institutional prestige and stability."

(27) For all these aforesaid reasons, we are unable to entertain this writ petition and the same is dismissed in liming.

Have a look at the decision.