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The Treaty-Making Power Under the Constitution of India
by Wali Ullah,
LL.M.

Cite as : (1971) 2 SCC (Jour) 20

The Preamble to the Constitution of India declares that India is a sovereign Democratic Republic. Sovereignty has an internal as well as an external aspect. As regards external sovereignty, it has been said that "in consequence of its external independence, a State can, unless restricted by treaty, manage its international affairs according to its discretion; in particular, it can enter into alliances and conclude other treaties, send and receive diplomatic envoys, acquire and cede territory, make war and peace".1

It is thus evident that treaty-making power is an aspect of external sovereignty. Article 253 of the Constitution of India runs thus:

"Legislation for giving effect to international agreements.—Notwithstanding anything in the foregoing provisions of this Chapter, Parliament has power to make any law for the whole or any part of the territory of India for implementing treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body."

Comparative study — But before a critical view of the treaty-making power under our Constitution is made, it is proposed to examine similar provisions in other countries.

(a) United States of America.—Article VI of U.S. Constitution declares: ". . . . The Constitution and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme Law of the land; and the judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding." The result of this provision is that a treaty which is made by the Federal Executive with the assent of the Senate must be supreme even though it trenches upon the normal sphere of the States as outlined by the other provisions of the Constitution. Thus in Missouri v. Holland,2 the U.S. Supreme Court held the Migratory Bird Treaty Act passed by the Congress, was valid although the States had a constitutional title to migratory birds within them. A treaty made by the U.S. may override private rights created by a State law.3

In spite of the wide language used in the Article, it merely enlarges the federal power against the States, but it cannot override federal laws or the prohibitions of the Constitution. A valid law of Congress has been placed on the same footing as a treaty.

(b) Canada.—Section 132 of the British North America Act provides: "The Parliament and Government of Canada shall have all powers necessary or proper for performing the obligations of Canada or of any provision thereof as part of the British Empire, towards foreign countries, arising under treaties between the Empire and such foreign countries."

The Dominion Parliament has thus exclusive power to implement a treaty when it comes within Section 132 or where the general residuary power under Section 91 is applicable.4 But the Dominion Parliament cannot legislate to implement the agreement without the consent of the Provinces, if the international convention was signed by Canada as an independent State, not as a member of the British Commonwealth of Nations, and the matter of the Convention relates to the classes of Provincial subjects.5 It would thus appear, that the Dominion Parliament still lacks the whole of the treaty-making power.

(c) Australia.—We, nowhere, find a separate treaty-making power in the Constitution for Australia. Section 51 (xxxix) of the Constitution Act of Australia gives the Commonwealth, the power over "External Affairs".

In King v. Burgess6, it was laid down that the external affairs includes agreements entered into by Australia and the Commonwealth. Legislation to give effect to such agreement is valid despite its effect on States.

The position in India.—Prior to the commencement of the Constitution, India did not enjoy full external sovereignty, "the implementation of treaties and agreements with other countries" was a federal subject under Item 3 of List I of Schedule VII under the Government of India Act, 1935, although this power was restricted by Section 106 of the Act which laid down that in the exercise of the above power, the Federal legislature could not make any law for any Province or Federal State without the consent of the Governor.7

The above deficiency has been made good by the wide use of words used in Article 253 of the Constitution of India. The wordings of Article 253 and Entries 13 to 14 of Union List may be read together:

"13. Participation in international conferences, associations and other bodies and implementing of decisions made thereat.

14. Entering into treaties and agreements with foreign countries and implementing of treaties, agreements and conventions with foreign countries."

Article 253 is in conformity with the object of "fostering respect for international law, and treaty obligations in the dealings of organised people with one another".8 By the inclusion of Entries 13 and 14 in List I (Schedule VII) treaty making and implementation of treaties, etc., has been made a subject of Union Legislation. But it would have been difficult for the Union to implement its obligations under treaties or other international agreements, had it not been competent to legislate with respect to State subjects insofar as that may be necessary for the purpose. The makers of the Constitution were benefitted by the difficulties experienced in the interpretation of Section 132 of the British North America Act, and avoided that situation by the use of wide words. The words "notwithstanding the foregoing provisions of this Chapter" (not this Constitution) Article 253 empowers the Union Parliament to invade List II (being in the same Chapter) insofar as that may be necessary for the purpose of implementing the treaty obligations of India. But the Union Government by a Legislation under Article 253, cannot override Fundamental Rights9 included in Part III.

There is a very important point of contrast between the Indian Constitution and the Constitution of the Dominion of Canada. In India, the Centre, as we have seen just now, has been given a comprehensive power to give effect to a treaty entered by it and it may legislate even though the subject-matter falls within the States List. In Canada, on the other hand, the Dominion Government is restricted to some extent in this field.10 The power of the Central Parliament in India, by the provision of Entries 13 and 14, is very wide. The power of Parliament is further reinforced by Article 253 which confers an overriding power on Parliament to make laws for the whole or any part of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body. According to Jennings, this last phrase is very vague. It does not specifically refer to conferences or associations and other bodies representing Governments and on the face of it, it would seem to apply to any international organisation representing, let us say, Universities or Trade Unions. Nor would it seem to matter that the organisation had merely advisory powers. The word decision "cannot mean a binding decision for the assumption is that legislation is needed to implement it. If this is the correct assumption, Parliament can acquire power over university education by the simple process of a decision of the Inter-University Board of India, an international body having representatives of the Universities in Burma and Ceylon.

Power to acquire and cede territory — Acquisition and secession of territory is an attribute of sovereignty. Does India possess that power (1) under the Constitution, or (2) outside it as an attribute of sovereignty? The Supreme Court in its advisory opinion in Re Beru Bari Union and Exchange of Enclaves11 expressed the view that the power to acquire and cede territory was a sovereign power which existed outside the Constitution. But the Supreme Court there appears to have overlooked Article 248 and Entry 97 List I. It is submitted, with respect, that our Constitution confers on the Union of India, legislative and executive power which embraces the total field of external sovereignty. Under Articles 245 and 246 (read with Entries12 1, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 25, 37, 41, 57 and 83 of List I of Schedule VII), the Union Government enjoys sweeping power in the field of foreign affairs. It is difficult to see what aspect of external sovereignty is left out from this exhaustive enumeration of powers, but if any aspect were left out, it would be covered by Article 248 and Entry 97 List I, Schedule VII, which confers residuary power of legislation on the Union.13 Consequently in India, no part of external sovereignty can be outside the Constitution, since the residuary power — legislative and executive — would cover it.

In the U.S., the power to acquire and cede territory has been considered as necessarily involved either in War or treaty-making power, or in the power relating to foreign affairs. Although Justice Field observed by way of obiter dicta in De Geofroy v. Riggs,14 that State territory cannot be ceded under a treaty without the consent of the State concerned, the general trend of authority is that15 State territory may be ceded without such consent.

Principle of interpretation — It is a well-settled principle that entries in the legislative lists must be widely construed, and that all powers embraced by the terms of an entry must be taken to have been conferred, it is submitted that acquisition or cession following war and declaration of peace along with the treaty-making power, and the power to acquire and cede territory in times of peace would be equally covered by the power to deal with foreign affairs and power to make treaties. Article 253 by the wide use of words, emphasizes this aspect, "It is submitted, therefore, that the power to acquire and cede territory is a legislative and executive power covered by the express provision of List I mentioned above. In any event, the power would be included in Article 248 and Entry 97, List I, Schedule VII."16

The internal aspect of treaty-making power.—There are two aspects — international as well as internal — of the treaty-making power. The nations in International Law, are assumed to know where the treaty-making power in a State resides and what are the internal limitations on that power. The constitutional limitations on the treaty-making power come into play internally. In the U.S., the President negotiates treaties on the advice and with the consent of the Senate. The treaty may have no operation in the U.S. although it may involve a breach of the treaty with the foreign State in case the Senate disapproves it.

The power to enter into treaties and implement them is in terms absolute in India, but having regard to the fact that we have a written Federal Constitution, a court would imply limitation on that power. A treaty, for instance, cannot make provisions which would, in effect, amend the Constitution, for it could not have been intended that a power conferred by the Constitution would, without an amendment of the Constitution, alter or destroy the Constitution.17

Treaty whether Supreme Law.—Under the U.S. Constitution, treaties were the supreme law of land.18 According to the English view, treaties were not by themselves law. Article 253 which enables Parliament to enact laws implementing treaties, conventions and the like, endorses the English point of view. In the U.S., there are two types of treaties — self-executing (that is those treaties which become operating without a legislation) and non-self-executing. A non-self-executing treaty can be given effect to only by passing a law. In India, all the treaties are non-self-executing and Parliament's legislation is essential to execute each and every treaty.

Indo-Soviet Treaty of Peace, Friendship and Co-operation.—This article was just in the process of being published that India and the Soviet Union have signed a treaty known as the "Treaty of Peace, Friendship and Co-operation, on August 9, 1971".

The text of this treaty is similar to that of UAR-Soviet Treaty signed in May this year. It has, in all, 12 Articles. Article IX only is being examined for the present. Article IX reads:

"Each high contracting party undertakes to abstain from providing any assistance to any third party that engages in armed conflict with the other party. In the event of either party being subjected to an attack or a threat thereof, the high contracting parties shall immediately enter into mutual consultations in order to remove such threat and to take appropriate effective measures to ensure peace and the security of their countries."

There is no doubt that the Union Government has got unlimited treaty-making power under Article 253, read with Entries 13 and 14 of List I, Schedule VII. But the Constitution has established a "Sovereign Democratic Republic".19 The provision of mutual consultation in the event of external attack in Article IX of the Treaty, amounts to surrendering that sovereignty to the other high contracting party. What is of immediate necessity at the time of external attack, is the reply of force by force and to repulse the aggression as soon as possible. No country can afford the luxury to consult another State at the time of external attack against it. India is a "potentially great power, and certainly a major factor in Asia, which is neither so weak nor even so lonely as to accept any arrangement that might reduce it to the status of being anything less than equal in its relations with any other country. The Soviet Union needs India as much as India needs the Soviet Union".20 It amounts to surrendering sovereignty to the other country at the troubled hour of external attack, when the defence of the country should be the first and foremost aim. The Constitution does not, despite the wide language of Article 253, give such an unlimited power to the Union Government so as to surrender to any other country its right to defend itself as it deems fit and necessary. Article IX of the Treaty, therefore, appears to be unconstitutional.

1. Oppenheim, International Law, 8th Edition, Vol. I, p. 209. Return to Text
2. (1920) 252 US 416. Return to Text
3. Ware v. Hylton, (1796) 3 Dall 199. Return to Text
4. In re Aeronautics, (1932) AC 54. Return to Text
5. A.-G. for Canada v. A.-G., Ontario, (1937) AC 326. Return to Text
6. (1936) 55 CLR 608. Return to Text
7. Basu "Commentary on the Constitution," 4th Edition, Vol. IV, p. 182. Return to Text
8. Article 51(c). Return to Text
9. Ajaib Singh v. State of Punjab, AIR 1952 Punj 309(321) reversed on other points, by State of Punjab v. Ajaib Singh, AIR 1953 SC 664. Return to Text
10. Section 132, British North America Act. Return to Text
11. AIR 1960 SC 845. Return to Text
12. Entry 1. Defence of India. 9.Preventive detention for reasons connected with defence and foreign affairs. 10.Foreign affairs and all matters which bring the Union into relation with any foreign country. 11.Diplomatic, Consular and trade representation. 12.United Nations Organisation. 13.Participation in international conferences, associations and other bodies and implementing of decisions made thereat. 14.Entering into treaties and agreements with foreign countries and implementing of treaties, agreements and conventions with foreign countries. 15.War and Peace. 16.Foreign Jurisdiction. 17.Citizenship, naturalisation and aliens. 18.Extradition. 19.Admission into, and emigration and expulsion from India; passports and Visas. 25.Maritime Shipping and Navigation, etc. 37.Foreign Loans. 41.Trade and Commerce with foreign countries . . . , etc. 57.Fishing and Fisheries beyond territorial waters. 83.Duties of Customs including export duties. Return to Text
13. H.M. Seervai, Constitutional Law of India (1968), p. 109. Return to Text
14. (1889) 133 US 258. Return to Text
15. Willonghly, Schwartz, etc. Return to Text
16. Seervai, Constitutional Law (1968), pp. 110-111. Return to Text
17. Seervai, Constitutional Law (1968), p. 112. Return to Text
18. Article 6, U.S. Constitution. Return to Text
19. Preamble to the Constitution of India. Return to Text
20. Hindustan Times, August 10, 1971. Return to Text