Treaty making powers of the Union Executive

Introduction
Article 73 of the Indian Constitution requires that the entry into, and implementation of, treaties and other international agreements with other countries is to be carried out in the name of the President.

Articles 73 and 246(1), read in conjunction with the relevant items on the Union List, gives the Union Executive all the powers necessary to negotiate, enter into, and ratify treaties. Entries 13, 14, 15 and 16 in the Union List are relevant in this regard, particularly Entry 14. They read as follows: 

• Entry 13: Participation in international conferences, Associations and other bodies and implementing of decisions made thereat. 
• Entry 14: Entering into treaties and agreements with foreign countries and implementing of treaties, agreements and conventions with foreign countries. 
• Entry 15: War and peace. 
• Entry16: Foreign jurisdiction.

Article 253 of the Constitution provides that notwithstanding any distribution of legislative power under Article 246, the Parliament has the power to enact legislation to give effect to treaties and international agreements.

Treaty-making power is an aspect of external sovereignty and the Preamble declares India as a sovereign country. The power to enter into treaties and implement them is comprehensive and unqualified, but given the fact that the Constitution provides for a federal structure and guaranteed rights, Courts can impose restrictions on this power. A treaty, for instance, cannot make provisions which would, in effect, amend the basic features of the Constitution, for it could not have been intended that a power conferred by the Constitution would, without an amendment to the Constitution, alter or destroy the Constitution.

Timeline

• In the early case of Ram Jawaya Kapur and Maganbhai Ishwarbhai Patel v. Union of India, the Supreme Court made it clear that the Indian Constitution permits the executive to negotiate treaties. 
• In P.B.Samant v. Union of India, where a Division Bench was called upon to adjudicate the validity of the Union entering into the WTO framework without consulting the states. The Court dismissed the petition by holding that the power under Article 73 was expansive enough to enable the Union to negotiate treaties in support of Article 253.
• In Union of India v. Azadi Bachao Andolan, the Supreme Court held that power of entering into a treaty is an inherent power of the State. Moreover, the Constitution makes no provision making the legislation a condition for entry into a treaty in times of war or peace.
• Though the Parliament is vested with the power to enact laws in relation to the entering into and negotiation of treaties, no law in this regard has been enacted till date. Therefore, Parliamentary approval for every treaty is not the norm. The States can, however, consult with the federal government through the Inter-State Council on all issues including treaties. Aside from the Council, there do not appear to be any other formal mechanisms for consultation between the States and the federal government with respect to treaty-making.
• Article 51 (c) of the Constitution of India provides for the application of international law for interpretation and better enforcement of domestic law. Courts may rely upon provisions of international law that further the understanding of the domestic law, in estimating the level of their application. In the absence of a conflict with domestic laws, the courts are free to incorporate such principles of international law. In the event that there is a conflict between the municipal law and international law, then the question arises as to whether the municipal law will stand in view of Article 51(c). Hence, as per the position in Indian law, only those rules of international law which are not contrary to municipal law will be used for the purposes of construction and interpretation.

Recommendations

In view of the fact that treaties, conventions or agreements may relate to all types of issues within or outside the States' concern, there cannot be a uniform procedure for exercise of the power. Furthermore, since treaty making involves complex, prolonged, multi-level negotiations wherein adjustments, compromises and give and take arrangements constitute the essence, it is not possible to bind down the negotiating team with all the details that should go into it. Nonetheless, the Constitutional mandates on federal governance cannot be ignored; nor the rights of persons living in different regions or involved in different occupations compromised. Therefore there is need for a legislation to regulate the treaty-making powers of the Union Executive.
The Commission recommends that the following aspects may be incorporated in the Central law proposed on the subject of Entry 14 of List I: 

1. Agreements which largely relate to defence, foreign relations etc. which have no bearing on individual rights or rights of States of the Indian Union can be put in a separate category on which the Union may act on its own volition independent of prior discussion in Parliament. However, it is prudent to refer such agreements to a Parliamentary Committee concerned with the particular Ministry of the Union Government before it is ratified.
2. Other treaties which affect the rights and obligations of citizens, as well as those which directly impinge on subjects in State List, should be negotiated with greater involvement of States and representatives in Parliament. This can assume a two-fold procedure. Firstly, a note on the subject of the proposed treaty and the national interests involved may be prepared by the concerned Union Ministry and circulated to States for their views and suggestions to brief the negotiating team.
3. There may be treaties or agreements which, when implemented, put obligations on particular States affecting its financial and administrative capacities. In such situations, in principle, the Centre should underwrite the additional liability of concerned States according to an agreed formula between the Centre and States.
4. The Commission is also of the view that financial obligations and its implications on State finances arising out of treaties and agreements should be a permanent term of reference to the Finance Commissions constituted from time to time. The Commission may be asked to recommend compensatory formulae to neutralize the additional financial burden that might arise on States while implementing the treaty/agreement.

References

Punchhi Commission
The Hindu