Special Provisions Given To Jammu And Kashmir

by : HIMANSHU SETIA

INTRODUCTION

The Constitution of India provides for uniform rule over the whole country. But certain regions of the country are governed by special provisions . These provisions ensure the protection of cultural identities, customs and economic and political interests of the original inhabitants of these areas. One of them is Jammu and Kashmir, which is a constituent State of Indian Union, but its Constitutional position, and its relation with the Central Government, somewhat differ from that of other States and the same enjoys special autonomy which is enshrined in Part XXI under Article 370 of the Constitution of India, according to which, no law enacted by the Parliament of India, except for those in the field of defence, communication and foreign policy, will be extendable in Jammu and Kashmir unless it is ratified by the state legislature of Jammu and Kashmir. Subsequently, jurisdiction of the Supreme Court of India over Jammu and Kashmir has been extended.

The State was acceded to the Dominion of India by Maharaja Hari Singh, who was the ruler of the State in 1947 at the time when India was itself burning in the flames of communal riots. Jammu and Kashmir is also the only Indian state that has its own flag and constitution, and Indians from other states cannot purchase land or property in the state. Designed by the then ruling National Conference, the flag of Jammu and Kashmir features a plough on a red background symbolizing labour substituted the Maharaja’s state flag.

The internal position of the Jammu and Kashmir was also not far better than India. Communal disturbances and hunger for power in the sub-continent were provocating the religious feelings of community in order to fulfil their long awaited desire to assume political supremacy. The division of the sub-continent on the basis of the religion was creating hindrances in achieving the very objective of “Independence”.

HISTORICAL BACKGROUND

There are some Constitutional changes that took place in the State of Jammu and Kashmir. The letter dated October 27, 1947, the Governor-General, the Maharaja of Jammu and Kashmir, Hari Singh, offered to accede the Dominion of India. On March 5, 1948 the Maharaja issued a proclamation forming a responsible government of the Council of Ministers headed by the Prime Minister which was to take steps to constitute a National Assembly bases on adult franchise to frame a Constitution for the State. On November 25, 1949, Yuvraj Khan Singh, to whom the power was entrusted by the Maharaja, issued a proclamation directing that the Constitution of India to be adopted by the Constituent Assembly of the State insofar as it was applicable in Jammu and Kashmir in order to govern the relationship of the State and the contemplated Union of India. The Constitution of India was adopted on November 26, 1949, and on the same day some of it provisions came into force and the remaining provisions came into force on January 26, 1950. In October 1947, the accession was made by the ruler in favour of India in consideration of certain commitments made by Pt. JawaharLal Nehru (the then Prime Minister of India). It was in the pursuance of those commitments that Article 370 was incorporated in the Constitution of India.Article 370 of the Constitution of India dealt with the relationship of the State of Jammu and Kashmir with the Union of India. On January 26, 1950 the Constitution which was applicable to Jammu and Kashmir Order, 1950, was made by the President. On April 20, 1951, the Maharaja issued a proclamation in pursuance of which the Constituent Assembly of the State submitted the interim report recommended that —-

 The form of the future Constitution of Jammu and Kashmir shall be wholly democratic;

 The institution of hereditary ruler ship shall be terminated;

 The office of the Head of the State shall be elective.

RECOMMENDATIONS ADOPTED BY THE CONSTITUENT ASSEMBLY

The Constituent Assembly of the State by a resolution adopted these recommendations. The relevant part of the resolution is as follows:

(1)

(i) that the Head of the State shall be the person recognised by the President of the Union on the recommendations of the Legislative Assembly of the State;

(ii) he shall hold office during the pleasure of the President;

(iii) he may, by writing under his hand addressed to the President resign his office;

(iv) subject to the foregoing provisions, the Head of the State shall hold office for a term of five years from the date he enters upon his office;

Provided that he shall, notwithstanding the expiration of his term, continue to hold office until his successors enters upon his office;

(2) that the recommendations of the Legislative Assembly of the State in respect of the recognition of the Head of the State specified in sub-para (1) of paragraph 1, shall be made by elections..

(3) that the Head of the State shall be designated as the Sadar-i-Riyasat .

On May14, 1954, in exercise of the power conferred by Article 370 (1) of the Constitution of India, the president, with the concurrence of the government of the State, made the Constitution of (Application to Jammu and Kashmir) Order, 1954. It superseded the earlier Order of 1950, and extended the application of various provisions of the Constitution of India to the State. One such provision was Article 368 but a proviso was added to the effect that “no State of Jammu and Kashmir unless applied by order of the President under clause (1) of Article370”. On November 17, 1956, the Jammu and Kashmir Constitution was adopted. Some sections of the Constitution came into force on January 26, 1957.

The State of Jammu and Kashmir is a part of Indian Territory and is included in the List of States in the First Schedule of the Constitution. 

HOW SPECIAL POSITION OF JAMMU AND KASHMIR IS DIFFERENT FROM OTHER STATES ?

The position of this State differs from other States in the following respects:-

 

GIST OF SPECIAL PROVISIONS

 

À    LEGAL POWER OF THE PARLIAMENT. À      The legislative authority dealing of the Union Parliament in respect of this State is limited to those matters in the Union List and Concurrent List which are declared by the President, in consultation with the government of the State, to conform the term of the Instrument of Accession.[9] 
À    SEPARATE CONSTITUTION. À      The only State in India i.e. Jammu and Kashmir has a separate Constitution which was adopted on November 17, 1956 and came into force on 26th January, 1957.
 À    PROVISIONS RELATED TO EMERGENCY.[10]  À      The power does not vest with the Union to declare Financial Emergency[11]in the state. The Union can declare emergency in the state only in case of War or External Aggression. No proclamation of emergency made on the grounds of internal disturbance or imminent danger thereof shall have effect in relation to the state unless the following situations arises:-

it is made at the request or with the concurrence of the government of the state; or

 

where it has not been so made, it is applied subsequently by the President to that state at the request or with the concurrence of the government of that state[12].

 

À    FUNDAMENTALS RIGHTS[13], DIRECTIVE PRINCIPLES OF STATE POLICY[14] AND FUNDAMENTAL DUTIES[15]. À      Article 19 (1) (f)[16] and Article 31(2)[17]of the Constitution are still applicable to Jammu and Kashmir.

À      Supplementary to above, Directive Principles of State Policy and Fundamental Duties are also not applicable to Jammu and Kashmir.

À    HIGH COURT OF JAMMU AND KASHMIR. À      The High Court of J&K has very limited powers as compared to other High Courts within India.

À      It can’t declare any law unconstitutional. Unlike High Courts in other states, under Article 226[18] of the Constitution, it can’t issue writs[19] except for enforcement of Fundamental Rights.

À    OFFICIAL LANGUAGES.[20] À      The official language for communication between one state and another; or between a state and the Union;

À      The official language of the Union;

 

À      The language of the proceedings in the Supreme Court;

 

À      Urdu is the official language of Jammu. and Kashmir but use of English is permitted for official purposes unless the state legislature provides otherwise.

À    PREVENTIVE DETENTION LAWS.[21] À      The power of legislation regarding preventive detention laws vests in the State Legislature alone and not in the Parliament.
À    OTHER PROVISIONS OF THE CONSTITUTION OF INDIA. À      The other provisions of the Constitution of India shall apply to Jammu and Kashmir as the President may by order specify.

POWER OF THE PRESIDENT UNDER ARTICLE 370

Article 370 clearly states that due to the special position given to State of Jammu and Kashmir, the President is given the power to apply the provisions of the Constitution to that State subject to such exceptions and modifications as the President may by order specify. The President has power to say by order that certain provisions of the Constitution will be expected from application to the State of Jammu and Kashmir and on such order being made those provisions would not apply to that State. Besides this power of making exceptions, the President is also given power to apply the provisions of the Constitution with such modifications as he thinks fit. The meaning of the word ‘modification’ used in Article 370 (1) must be given the widest effect, including making racial modifications.

HOW CAN WE AMEND ARTICLE 370 WHEN THE CONSTITUENT ASSEMBLY OF JAMMU AND KASHMIR NO LONGER EXISTS?

According to the provision enshrined under Article 370 (3) of the Constitution of India, consent of the Constituent Assembly of the State and State Legislature are required to amend Article 370.

This issue has been raised at par. Various constitutional experts and jurists are silent on this aspect. Some of them say it can be amended by an amendment Act under Article 368 of the Constitution of India and the amendment extended under Article 370 (1), but the proper answer is yet to come.

In reality, this is the actual status of Article 370 which is still a very debatable and mooted question and remains unanswered.

JUDICIAL APPROACH

Now, let us see the vital role played by the Judiciary in the light of the following decided cases which are related to Article 370 of the Constitution of India.

In the case of SampatPrakashv.State of J&K :

The main issue which was raised by the petitioner was based on the fact that Article 35 (c) of Jammu and Kashmir Constitution as initially introduced by the Constitution (Application to Jammu and Kashmir) Order, 1954, had given protection any law relating to preventive detention in Jammu and Kashmir against invalidity on the ground of infringement of any one of the fundamental rights guaranteed by Part III of the Constitution for a period of five years only.

Subsequently this period was extended to ten years and later to fifteen years by the Presidential Orders dated 1959 and 1964. These extensions were challenged by the petitioner on the ground that the orders making such modifications could not be validly passed by the President under Article 370 (1). Article 370 could only have been intended to remain effective until the Constitution of the State was framed and thereafter it must be held to become ineffective that any modification made by the President subsequent to the enforcement of the Constitution would be without the authority of law.

The above argument was rejected by the Supreme Court and held Article 370 should be held to be continuing in force because the situation had existed when this article was incorporated in the Constitution had materially altered, and the purpose of introducing this article was to empower the President to exercise his discretion in applying Indian Constitution and a reference was also made that Article 368 of the Constitution in its application to State of J&K under which an amendment to the Constitution under Article 368 is of no consequence in the State of J&K unless applied by the President under Article 370 (1).

In the case of Mohd.Damnoo v. State of J&K

The petitioner challenged the validity of his detention under the J&K Preventive Detention (Amendment) Act, 1967, on the ground that the Act is invalid as it has not been assented to by the Sadar-i-Riyasat of the State. On November 16, 1952, the President had made an order substituting another Explanation for the existing one in clause (1) of Article 370, as “For the purpose of this article, the Government of the State means the person for this time being recognised by the President on the recommendation of the Legislative Assembly of the State as the Sadar-i-Riyasatof J&K, acting on the advice of Council of Ministers of the State for the time being in office.”

According to the counsel on behalf of the petitioner, neither the State Assembly nor the President were competent to impair the functioning of the Sadar-i-Riyasat of the State unless the Constitution of India was amended under Article 368 and 370 (3) or a fresh Constituent Assembly was convened to amend the Explanation.

The above argument was not accepted by the Supreme Court and the Court explained the following feature of Article 370 (1) (b) and (d) is the necessity of the concurrence of the State Government. Article 370 (1) merely recognised a constitutional position in the State. It was contended Article 370 (1) (b) and (d) places no limitation on the framing or amendment of the Constitution of J&K. basically, it was pointed out that the change in the designation and the mode of the appointment of the Head of the State, the constitutional position in the State remains basically the same and the Governor is the successor to the Sadra-i-Riyasat and can validly exercise his powers as Head of the State.

CONCLUSION

Now, it is crystal clear that the State of J&K has a different Constitution because Kashmir is not a part of India. It is a disputed territory, rather a foreign nation. Legally speaking, as per International Law and UN Charter, any differences between two nations are decided under the UN Charter. Kashmir was always an independent nation, never a part of India in the history too and i.e. the only reason it always leads to a tussle between Pakistan and India. Specifically, related to recognition of Kashmir.

The question of plebiscite doesn’t arise till Pakistan doesn’t withdraw its forces from POK (Pakistan Occupied Kashmir). India has taken a stand that after lapse of so much time, the circumstances within state have changed. Under the changed circumstances, the plebiscite can’t be held and hence, the demand for it is completely unjustified. The view is accepted by most of the nations of the world like USA, UK, France, etc.

With the passage of time, The Constitution (Application to Jammu and Kashmir) Order, 1954was promulgated by the President of India in consultation with the Government of J&K, regulating the constitutional status of the State; and apart from it several Central laws got extended to the J&K State and even the nomenclature of Sadar-i-Riyasat and Prime Minister were changed to Governor and Chief Minister on March 30, 1965.

The State of Jammu and Kashmir which is a constituent unit of the Union of India, shall, in its relation with the Union, continue to be governed by Article 370 of the Constitution of India.

Despite of continuous efforts by various political parties, Article 370 of the Indian Constitution could neither be made permanent nor abolished, so it continues to be as such in the Indian Constitution with J&K having its own Constitution and State flag and resulting into non-application and non-extension of Central laws without approval of the State Legislature

BIBLIOGRAPHY

 P.M. Bakshi, The Constitution of India 336-353, (Universal Law Publishing Co., New Delhi-India, 11thedn., 2011).

 The Constitution of India 312-313, (Eastern Book Company, Lucknow, 3rdedn., 2011).

 S. Anand, The Constitution of Jammu and Kashmir its Developments and Comments, 4thedn., 2003.

 V.N. Shukla, TheConstitution of India 1015-1016, (Eastern Book Company, Lucknow, 11thedn., 2011)

 M.P. Jain, The Constituion of India 859, (Lexis NexisButterworthsWadhwa Nagpur,6thedn., 2011).

 P.M. Bakshi, Part XVIII, Article 352-360, The Constitution of India 319-327, (Universal Law Publishing Co., New Delhi-India, 11thedn., 2011)

 Article 360, The Constitution of India 294-296, (Eastern Book Company, Lucknow, 3rdedn., 2011).

 Wikipedia.

 www.google.com.

 www.unilawbooks.com

 http://www.indiankanoon.org/

 http://www.manupatra.com/

 www.westlaw.com

www.heinonline.com

 

 

The Status of International Law under the Constitution of India

Introduction

The status of International Law within a municipal legal system is generally determined by the Constitution of a State or Municipal Law. This article attempts to shed light on the Status of International Law under the Constitution of India. Unlike France, United States, Germany and some modern Constitutions that provide relatively clear provisions for the Domestic Application of International Treaty Law or Customary Law, the Constitution of India does not make specific, emphatic reference to the status of International in its domestic legal system, nor does it specifically obligates or authorises the judiciary to draw on International Law1.

Provisions of the Constitution of India touching the Status of International Law.

The basic provisions of the Constitution of India relevant for consideration of its interaction and inter-relationship with International Law are;  (1) Article 51                  (2) Article 73  (3) Article 245 & 246 (4) Article 253  (5) Article 260  (6) Article 363  (7) Article 372 and (8) VII schedule – entries 10 to 21.

Article 51 Promotion of International Peace and Security; The state shall endeavour to –

a)         promote international peace and security

b)         maintain just and honourable relations between nations

c)         foster respect for International Law and Treaty obligations in the dealings of organized people with one another; and

d) encourage settlement of International dispute by arbitration.

For the purpose of this study, the central point for discussion is Article 51(c).     Article 51 of the Constitution had its source and inspiration in the Havana Declaration of 30 November 1939.  The first draft (draft Article 40) provided:

“The state shall promote international peace and security by the prescription of open, just and honourable relations between nations, by the firm establishment of the understandings of International Law as the actual rule of conduct among governments and by the maintenance of justice and scrupulous respect for treaty obligations in the dealings of organized people with one another”.

With the acceptance of amendments moved by Dr. Ambedkar, H.V. Kamath, Ananthasayanam Ayyangar and P. Subbarayan, draft Art. 40 was adopted by the Constitutent Assembly in its present form as Article 51.  During the debate, all the speakers emphasized commitment of India to promoting International Peace and Security and adherence to principles of International Law and Treaty obligations.2

It is significant to note that the clause ‘c’ of Art. 51 specifically mentions ‘International Law’ and ‘Treaty Obligations’ separately.  According to Prof. C. H. Alexandrowicz the expression ‘International Law’, in the said paragraph      connotes Customary International Law and ‘Treaty Obligations’ stands for obligations arising out of International Treaties.  This interpretation seems to be logical in the context of the text of the Draft Article 40 referred above as well as the attitudes of courts in India on questions of International Law.3 It is also significant to note that Art. 51 (c) treats both International Customary Law and Treaty Obligations on the same footings.4

Judicial interpretation of Article 51(c).

Article 51 has been relied upon by Courts to hold that various International Covenants, Treaties etc., particularly those to which India is a party or signatory, become part of Domestic Law in so far as there is no conflict between the two. 5

In Keshavanand Bharati v State of Kerala,6 Chief Justice Sikri observed;

“In view of Article 51 of the constitution this court must interpret language of the Constitution, if not intractable, which is after all a municipal law, in the light of United Nations Charter and the solemn declaration subscribed to by India”

It is significant to note here that Article 51 finds place in Chapter IV of the Constitution  which provides for Directive Principles of State Policy (DPSP) and are non – justiciable by virtue of Article 37.  Even though as one of the DPSP, Art. 51 is not enforceable through a court of law, Dr. Ambedkar had said in the Constituent Assembly that the intention was that the executive and legislature should not only pay lip service to these directive principles but “they should be made the basis of all executive and legislative action that may be taken hereafter in the matter of governance of the country”. 7

Executive Power of the Union and International Treaties (Articles 53,73,253)

Article 73; Extent of executive power of the Union;

“Subject to the provisions of this Constitution, the executive power of the Union shall extend-

a)      to the matters with respect to which Parliament has power to make laws, and

b)      to the exercise of such rights, authority and jurisdiction as are exercisable by the Government of India by virtue of any treaty or agreement ………………”

Article 53:      Executive Power of the Union :

“(1) The Executive Power of the Union shall be vested in the President and shall be exercised by him either directly or through officers subordinate to him accordance with this Constitution.”

Article 253 :   Legislation of giving effect to International Agreements –

“Not withstanding 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 any treaty, agreement or convention with any other country or countries or any decision made at any International Conference, Association or Other body.”

Under Article 53 the executive power of the Union vests with the President of India.  It is pertinent to note here that the President acts under the aid and advise of the Union Cabinet.8 Under Article 73, the executive power of the Union extends to all matters in respect of which parliament may make laws and to exercise of all powers that accrue to the Government of India from any International Treaty or Agreement.  It is also important to note here that executive power has to be exercised in accordance with Constitution and the laws. Article 253 confers power on Parliament to make any law for the whole or any part of the country to give effect to any International Treaty, Agreement, Convention or decision.

Though signing and ratifying an international treaty is within the domain of the executive, implementation of such treaty falls under the domain of Parliament as explicitly provided under Article 253.  Further it is to be remembered here that under Article 51, India commits itself to make endeavour to ‘foster respect for international law and treaty obligations’.  Thus under the scheme of the Constitution, International Treaties can be legally enforceable in India only when Parliament enacts an enabling legislation incorporating it under the domestic system. This stance is also fortified by the fact that India continue to act under the influence of Common Law system accepted during British rule and continued even after the coming in to force of the Constitution9.

Judicial stamp on the Status of International Law under the Constitution.

An infant Indian Judiciary, just after the coming in to force of the Constitution of India confronted with the issue of the Status of International Law under the provisions of the Constitution. The Division Bench of the Rajasthan High Court in Birma v. State,10 while considering the question as to whether a treaty between the British Government and The Princely State of Dholapur, which was not given effect to by means of  legislative enactment, could be regarded as part of the then Dholapur State observed thus;

“……Treaties which are part of the international law do not form part of the law of the land unless expressly made so by the legislative authority. In the present case the treaty remained a treaty only and no action was taken to incorporate it in to a law. That treaty cannot therefore be regarded as part of the Municipal Law of the then Dholapur State and the practice of surrendering fugitive criminals, which was being followed by the former Dholapur State cannot be deemed to be a law that could be continued under Article 372 of the Constitution of India……”

It was indeed surprising that, though the Dholapur State was in practice of surrendering of fugitive criminals under the treaty, such a practice constitute as custom under International Law and under Common Law, the Court came to the conclusion that, it cannot be regarded as a law by underestimating the effect of Article 372.

A far-reaching judgment of the Kerala High Court in Xavier v. Canara Bank Ltd.11, deserve to be mentioned here. The Court was ceased of a million dollar question, which is the central point for the present study. The issue was whether provisions of International Covenants/Treaties to which India is a party become part of the corpus juris of India and as a result giving an aggrieved individual a right to remedial action before the municipal court. The question arose on whether Article 11 of the I.C.C.P.R. 1966, viz., that no one shall be imprisoned merely on the ground of inability to fulfill a contractual obligation, has become part of the Municipal Law of this Country consequently conferring right to remedial action at the instance of an aggrieved individual of this Country. In dealing with this question, the Court observed;

“……The remedy for breaches of International Law in general is not be found  in the law courts of the State because International Law per se or proprio vigore has not the force or authority of civil law, till under its inspirational impact actual legislation is undertaken. I agree that the Declaration of Human Right merely sets a common standard of achievement for all peoples and all nations but cannot create binding set of rules. Member States may seek, through appropriate agencies, to initiate action when these basic rights are violated, but individual citizens cannot complain about there breach in the municipal courts even if the country concerning has adopted the covenants and ratified the Optional Protocol. The individual cannot come to court but may complain to the Human Rights Committee, which in turn, will set in motion other procedures. In short, the basic human rights, enshrined in the International Covenants above referred to may at best inform judicial institutions and inspire legislative action within member –States but apart from such deep reverence, remedial action at the instance of an aggrieved individual is beyond the area of judicial authority…….”

The above observation of the Kerala High Court was quoted with approval by the Supreme Court in Jolly George Verghese v. Bank of Cochin12. In this case the Court was ceased with similar facts of the Xavier case. The Court was dealing with effect of international law and its enforceability at the instance of individuals within the State (India), and enunciated the law on the point thus;

“The positive commitment of the State parties ignites legislative action at home but does not automatically make the covenant an enforceable part of the Corpus juris of India.”

The Karnataka High Court in Civil Rights Vigilance Committee S.L.S.R.C. College of Law, Bangalore v. Union of India and others13, while dealing with the question of Power of Courts to enforce International Treaty Obligations held that;

“…..the government of India’s obligations under Gleaneagles Accord and obligations attached to its Membership of United Nations cannot be enforced at the instance of citizens by Courts in India, unless such obligations are made part of the law of this country by means of appropriate legislation’.

In Magnabhai Ishwarbhai Patel v. Union of India,14 the Constitution Bench of Supreme Court of India observed that;

The effect of Art 253 is that if a treaty, agreement or convention with a foreign state deals with a subject within the competence of state legislature, the parliament alone has notwithstanding Article 246(3) the power to make laws to implement the treaty, agreement or convention or any decision made at any international conference, association or other body.”

Recently, yet again the Constitution Bench of the Supreme Court in State of West Bengal V. Kesoram Industries ltd15, observed that;

A treaty entered in to by India cannot become law of the land and it cannot be implemented unless parliament passes a law as required under Article 253.  The executive in India can enter in to any treaty be it bilateral or multilateral with any other country or countries”.

The single importance of putting Article 253 in the Constitution over and above the entries in List I of the Seventh Schedule was to clarify beyond doubt that for implementation of an international treaty, agreement or covenant or to give effect to a decision taken at an international forum, the Union Parliament could make any law irrespective of some items in the State List being attracted.  Thus, the distribution of legislative powers between the Union and the States under the Constitution cannot come in the way of international law obligations being implemented through parliamentary law.  The fact however is that the parliament has not so far made any law on treaty making powers and until that is done, the power of the executive in the matter of treaty-making shall remain unfettered.16

Article 260 : Jurisdiction of the Union in relation to territories outside India.

“The Government of India may by agreement with the Government of any territory not being part of the territory of India undertake any executive, legislative or judicial functions vested in the government of such territory, but every such agreement shall be subject to, and governed by, any law relating to the exercise of foreign jurisdiction for the time being in force.”

Under Article 260 read with entry 16 of the Union List in the Seventh Schedule of the Constitution, the Government of India may, by treaty or agreement with another country, exercise some extra-territorial jurisdiction in the territory of that country and ‘undertake any executive, legislative or judicial functions vested in the government of such territory”.  Article 260 clarifies that every such agreement shall be subject to and governed by any law relating to the exercise of foreign jurisdiction for the time being in force17.

Article 363 : Bar to interference by courts in disputes arising out of certain treaties agreements etc.

“Notwithstanding anything in this constitution but subject to the provisions of Article 143, neither the Supreme Court nor any other court shall have jurisdiction in any dispute arising out of any provision of treaty, agreement, covenant, engagement, sanad or other similar instrument which was entered into or executed before the commencement of this constitution by any ruler of an Indian State and to which the Government of the Dominion of India or any of its predecessor Governments was a party and which has or has been continued in operation after such commencement, or in any dispute in respect of any right accruing under or any liability or obligation arising out of any of the provisions of this constitution relating to any such treaty, agreement covenant, engagement, sanad or other similar instrument………..”

Article 363 bars the jurisdiction of all courts including the Supreme Court in matters arising out of “any provision of a treaty, agreement, covenant, engagement, sanad, or other similar instrument” entered into by the Government of India with any princely Indian state.  In the Maharaja Pravin Chandra Bhunj Deo Kakatiya v. state of M.P.18, it was held by the Supreme Court that any dispute arising out of the Merger Agreement, or the Instrument of Accession was beyond the competence of the courts to enquire into.

Legislative Jurisdiction on International Law concerns.

Article 245 – Extent of laws made by Parliament and by the Legislatures of States.

(1)            Subject to the provisions of this Constitution, Parliament may make laws for the whole or any part of the territory of India, and the legislature of a state may make laws for the whole or any part of the state.

(2)            No law made by the Parliament shall be deemed to be invalid on the ground that it would have extra territorial operation.

Article 246 – subject matter of laws made by Parliament and the legislatures of the state –

(1)               Notwithstanding anything in clauses (2) and (3), Parliament has exclusive power to make laws with respect to any of the matters enumerated in List – I in the Seventh Schedule (in this Constitution referred to as the Union List)

Under Articles 245 and 246 the Parliament can make laws for the whole or any part of India within its area of competence as defined and delimited under the distribution of legislative powers between Union and the States vide the Seventh Schedule.  Laws can’t be questioned on the grounds of extra territorial operations (Art. 245).  The Seventh Schedule to the Constitution embodies three lists, viz.  the Union List, State List and Concurrent List consisting of 97, 66 and 47 items, respectively.  In the three fold distribution of legislative powers, residuary powers of legislation have been left with Union (Article 248).  In regard to the Union List, the Jurisdiction of Parliament is exclusive.  International relations, foreign affairs, International Organisations and International Law matters generally have been specifically assigned by the Constitution to the Jurisdiction of the Union Parliament.19

Thus in the Seventh Schedule, List-I (Union List), the following entries are included :

a)                  Foreign affairs; all matters which bring Union into relation with any foreign country (entry 10)

b)                  Diplomatic, Consular and trade representation (entry 11)

c)                  Union Nations Organisation (entry 12)

d)                 Participation in International Conference, Associations and other bodies and implementing of decisions made there at (entry 13)

e)                  Entering into treaties, agreements and conventions with Foreign Countries (entry 14)

f)                   War and Peace (entry 15)

g)                  Foreign jurisdiction (entry 16)

h)                  Citizenship, naturalization and aliens (entry 17)

i)                    Extradition

j)                    Admission into, and emigration and expulsion from India, passports and visas

k)                  Pilgrimages to places outside India (entry 20) and

l) Piracies and crimes committed on the high seas or in the air (entry 21)

Article 372: Continuance in force of existing laws and their adaptation

 

“(1) Notwithstanding the repeal by this constitution of the enactments referred to in Article 395 but subject to the other provisions of this Constitution, all the laws in force in the territory of India immediately before the commencement of this Constitution shall continue in force therein in until altered or repealed or amended by a competent legislature or other competent authority.”

Article 372 continued all the pre-constitution ‘laws in force’ until altered, repealed or amended except that all those laws that were repugnant to any provision of the Constitution were declared to be void.  The importance of this provision here lies in the fact that continuance of “laws in force” means continuance of the British Common Law also as that was applied by courts in India in the pre-constitution period.20

What is important to note here is that the common law treats International custom as part of municipal law unless it is inconsistent with municipal law in which case municipal law prevails over international law.21 This is modified form of Blackstonian doctrine which treats international law as part of municipal law without any limitation whatsoever.  Further more according to common law, international treaties, which effect private rights, require modification of statute law and enabling Act of Parliament for their implementation.  Those treaties which are not inconsistent with municipal law are per se part of municipal law and do not need legislative Act for their implementation.22 Thus ‘common law’ maintains that the rules of international customary and treaty law, including U.D.H.R (containing customary norms of International Human Rights law) are part of municipal law, if they are not inconsistent with municipal law.

In Civil Rights Vigilance Committee SLSRC College of Law v. Union of India and others23, the Karnataka High Court observed that;

‘The position before English courts is something of a compromise between the two methods. There can be no doubt that they regard customary international law as part of the law of the land for they take “judicial notice” of it; that is to say they assume that the court knows the law and does require it to be proved by calling expert evidence, as in cases involving foreign and external systems of law. The court regard any relevant rule of customary international law as being incorporated in to the domestic law.’

In People’s Union for Civil Liberties v. Union of India24, the Supreme Court observed that;

“It is almost an accepted proposition of law that the rules of customary international law which are not contrary to the municipal law shall be deemed to be incorporated in the domestic law.”

In A.P. Pollution Control Board v. Prof. M.V.Nayadu25, the Supreme Court recognized and applied the International Customary Rule of “precautionary principle”. The Indian Supreme Court’s view about customary nature of “precautionary principle” was appreciated in a Canadian case26.

Cession of Territory

The Supreme Court in its advisory opinion under Article 143 of the Constitution in  the “Berubari Case”27 said that where the implementation of an Indian Territory, it could not be done even by passing a law under Article 3.  A Constitution Amendment Act under Article 368 was necessary.  The court was of the opinion that Article 3 applied only to a federal redistribution of territories to a foreign state.20  This opinion was followed in subsequent Supreme Court judgments in Rama Kishore Sen and others v. Union of India.28, Magnabhai Ishwaribai Patel v. Union of India,29 and Union of India v. Sukumarson Gupta 30 cases.

Conclusion

 

Thus the combined reading of Articles 51(c), 73, 253 read with entries 10 to 21 of Seventh Schedule and 372 and judicial interpretation reveal that, unless and until Parliament enacts a law implementing international treaty ( treaties involving conferring or curtailing private rights, cession of territory), such treaty provisions cannot be enforced per se in India.  Further if such treaty provisions are consistent with Indian law or there is void in the domestic legal system then they can be read into, to do justice, and if there is conflict between the two then domestic law prevail over international law.  Further customary rules of International law are part of Indian Legal System.  But there are hardly any instances of such enforcement in India.

 

What is to be noted here is that, the language used in Article 51 and its place under Part IV of the Constitution reveals that the framers of the Constitution have given little importance to the status of International Law under the Indian Legal System and the successive Governments are unmindful of this fact. Even after sixty years of coming in to force of the Constitution, sincere attempts have not been made to clarify the status of international law and its application under the Indian legal system. This is important in the context of domestic implementation of international human rights treaties. Otherwise International Laws including Human Rights Covenants Conventions, Treaties remain bare promises.

 

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* Advocate, High Court of Karnataka, Bangalore.

 

** Reader in Law, Dept. of Studies in Law, Mysore University, Mysore.

 

Endnotes

1)       In this regard, provisions of South African Constitution of 1996 (Sections 39(1) & 233) are quite fascinating, which obligates the senior courts to consider International Law, while interpreting rights and legislations and authorize them to consider relevant foreign jurisprudence.  See generally N. Botha, ‘International Law in the constitutional court’, South Afr. Yr. Book of Int. L. Vol. 20, (1995) pp.222-60, and R.C. Blake, ‘The World’s Law in one country’, The South African Constitutional Court’s use of Public International Law’, South Afr. L. J. vol.115 (1998), pp.668-84.  Cited in Rindwanul Hogue and Mostafa Mahmud Naser, The Judicial Invocation of International Human Rights Law in Bangladesh : Questing a Better Approach’, IJIL, vol.46, 2006, P.159.

2)       Subhash C. Kashyap, The constitution of India and International Law’, Bimal N. Patel (ed.), ‘India and International Law’, Martinus Nijhoft Publishers, Leiden 2005, p.19.  (emphasis supplied.)

 

3)       M. K. Nawaz, ‘International Law on the contemporary Practice of India Some Perspectives’, Proc, ASIL, April 25 – 27 (1963), p 275 at p.278 ; see also C.H. Alexandrowicz, ‘International Law in India’, ICLO (1952), p.292. cited in Dr. S. K. Kapoor ‘Human Rights under International Law & Indian Law’, Central Law Agency, Allahabad 3rd ed., 2005, p.271.

 

4)       Emphasis supplied.

 

5)       In Re Berubari Union and Exchange of Enclaves, AIR 1960 SC 845; Ali Akbar v. U.A.R. AIR 1966 SC 230; Magnabhai v. Union of India, AIR 1969 SC 783; Gramaphone Co. Birendra, AIR 1984 SC 667; Jolly George Verghese V. Bank of Cochin, AIR 1980 SC 470; UPSE Board v. Hari Shankar, AIR 1979 SC 65; Prem Shankar Shukla v. Delhi Adm., AIR 1980 SC 1535; Vishaka v. State of Rajasthan, AIR 1997 SC 3011.

 

6)       AIR 1973 SC 1461

 

7)       Subhash C. Kashyap, supra, p.20

 

8)       Article 74 of Constitution of India, 1950

 

9)       Article 372 of Constitution of India 1950

 

10)    AIR 1951 Raj 127 (emphasis supplied)

 

11)    1969 Ker L T 927 (emphasis supplied)

 

12)    AIR 1980 SC 470 (emphasis supplied)

 

13)    AIR 1983 Kar 85 (emphasis supplied)

 

14)    AIR 1969 SC 783 at para 25 (emphasis supplied)

 

15)    AIR 2005 SC 1644 at para 4

 

16)    Subhash C. Kashyap, supra p.22

 

17)    Ibid

 

18)    AIR 1961 SC 775, cited in Subhash C. Kashyap, supra

 

19)    Subash C. Kashyap, supra at 21

 

20)    Builders Supply Corp. v. Union of India, AIR 1965 SC 106 cited in Subhash C. Kashyap, supra p.23 see also Gurudip Singh, ‘Human Rights Covenants in India’ IJIL, at 222 see also Civil Rights Vigilance Committee S.L.S.R.C. College of Law v. Union of India, AIR 1983 Kar. 85 at 89.  In Re Amina AIR 1992 Bom 214

 

21)    Chung Chi Cheung  v. R. A.C. (1939), 160 at y 168 see also Gurdip Singh, ‘Status of Human Rights Covenants in India’, IJIL, p216

 

22)    The Zamora,  A.C.  2 (1916) at 77

 

23)    AIR 1983 Kar 85 (emphasis supplied)

 

24)    AIR 1997 SC 568

 

25)    1999 SCC 712

 

26)    Canada Ltee (Spraytech, Socie’te’ d’arrosage) v. Hudson (2001) 2 SCR 241 at para 32, per L’Heureaux-Dube J.

 

27)    In Re Berubari Union and Exchange of Enclaves, AIR 1960 SC 845

 

28)    AIR 1966 SC 644

 

29)    AIR 1969 SC 783

 

30)  AIR 1990 SC 1962

*Jagadish S.Halashetti

**Dr.Ramesh