Position Relating to Treaties under the Indian Constitution
Position Relating to Treaties under the Indian Constitution
Introduction
A treaty is an agreement between two or more sovereign states or international entities, establishing rights and obligations under international law.
In India, the question arises: What is the status of treaties in the domestic legal system? How are treaties treated under the Indian Constitution?
Key Issues
Are treaties automatically enforceable in Indian courts once signed?
What is the relationship between treaties and Indian legislation?
Can the executive enter treaties without parliamentary approval?
What is the role of treaties in Indian constitutional law?
Constitutional Position
Treaties are not automatically part of domestic law.
Unlike some countries, treaties signed by India do not automatically become enforceable law within India.
Dualist Approach:
India follows a dualist system for international treaties. This means:
Treaties bind India internationally once ratified.
But for treaties to have effect domestically, Parliament must enact legislation incorporating the treaty provisions into Indian law.
Executive Power to Enter Treaties:
The executive (President/Union government) has the power to negotiate and enter into treaties. However, if treaty provisions require changes in domestic law or affect fundamental rights, parliamentary approval is necessary.
Relevant Provisions of the Constitution
Article 253:
Empowers Parliament to make laws for implementing treaties and international agreements.
Article 73:
Defines the extent of executive power, which includes external affairs.
Article 51:
Directive Principle promoting respect for international law and treaty obligations.
Important Case Law
1. Vishaka v. State of Rajasthan (1997)
The Supreme Court held that international conventions can be used to interpret and develop domestic law, especially where domestic law is silent or inadequate.
International treaties, though not automatically enforceable, have persuasive value and can help fill legislative gaps.
2. Gramophone Company of India Ltd. v. Birendra Bahadur Pandey (1984)
Court recognized that international treaties signed by India have no direct effect unless enacted by Parliament.
Treaty obligations are binding on the country externally but require domestic legislation for enforcement internally.
3. S.S. Jolly v. Union of India (1966)
Affirmed the executive’s power to enter treaties.
However, the Court emphasized that international agreements cannot override the Constitution.
Summary Table
| Aspect | Position under Indian Constitution |
|---|---|
| Enforceability of Treaties | Not enforceable unless incorporated by legislation |
| Parliament’s Role | Must enact laws to implement treaties domestically |
| Executive Power | Can negotiate and sign treaties |
| Judicial Use | Treaties can guide interpretation of domestic law |
| Supremacy | Constitution overrides treaty provisions if conflict |
Conclusion
India adopts a dualist approach to treaties: binding internationally but not automatically enforceable domestically.
The Parliament must enact legislation to give treaty provisions effect within India.
The executive has the power to enter treaties, but constitutional supremacy remains paramount.
Courts may use treaties as interpretative aids, especially to uphold fundamental rights and fill gaps.
RELATED Blog
0 comments