The Fundamental Postulates

By Shiva Kant Jha



"This Petitioner's position in nutshell; and core legal propositions constituting legal perspective.

This Petitioner's stand taken in the Writ Petition, are stated in nutshell at the threshold itself to put the issues before this Hon'ble Court under a sharp focus:

(i) Our State's legal Sovereignty reveals itself in the terms of our Constitution only [except in those unfortunate moments, perish the thought, when a constitution goes down the gutter, and the crude realities of realpolitik become the sole determiner as it had become when the treaties like the Treaty of Allahabad, or Treaty of Versailles, or the Treaty of Surrender were signed by the vanquished under the spiky boots of the ruthless victors];

(ii) Our State has no Sovereign power, unbridled and unlimited, to enter into a treaty even at the international plane; it has only a Treaty-making capacity under the constitutional limitations. As the Executive represents our State at international plane , it acts only as the authorized agent of the State, and as such it is incompetent to transgress the obvious limitations on its power imposed by the Constitution which creates it and keeps it alive only with controlled competence. "In general it seems that the Crown makes treaties as the authorized representative of the nation." (Keir & Kawson, Cases in Const Law p.160 which can run the risk of acting without capacity if it goes in breach of the constitutional limitations on its capacity. Oppenheim observes[1]:

'If the Head of State ratifies a treaty without first fulfilling the necessary constitutional requirements (as, for instance, where a treaty has not received the necessary approval from Parliament of the state), his purported expression of his state's consent to be bound by treaty may be invalid."

Art 53 of the Vienna Convention states that if a treaty which at the time of conclusion conflicts with peremptory norm of international law it would be void. And Article 45 of the Vienna Convention - probably reflecting rules of customary international law - allows a state (by way of exception) to invoke non-observance of its internal law as a basis for invalidating its consent to be bound by the treaty only if the rule of internal law relates to competence to conclude treaties, if it is a rule of fundamental importance, and if the violation is manifest, i.e objectively evident to any state conducting itself in the matter in accordance with normal practice and in good faith.

(iii) "It is well established as a rule of customary international law", says Oppenheim, " that the validity of a treaty may be open to question if it has been concluded in violation of the constitutional laws of one of the states party to it, since the state's organs and representatives must have exceeded their powers in concluding such a treaty.. Such constitutional restrictions take various forms." This aspect of the matter has been pursued in Section IV of this Writ Petition.

(iv) Nothing turns on the concept of "inherent sovereign power" theory because sovereignty inheres in our Constitution, and it is essentially, as Oppenheim says, " a matter of internal constitutional power". Oppenheim, while analyzing what Sovereignty means in the 20th century, observed:

"Sovereignty was, in other words, primarily a matter of internal constitutional power and authority, conceived as the highest, underived power within the state with exclusive competence therein"

Even the U S Supreme Court has observed in Hamdan's Case [Hamdan v. Rumsfeld, Secretary of Defense, et al decided by the U.S. Supreme Court

on June 29, 2006] that 'The Court's conclusion ultimately rests upon a single ground: Congress has not issued the Executive a "blank check. [Justice Breyer, with whom Justice Kennedy, Justice Souter, and Justice Ginsburg join, concurring.] C.K. Allen aptly said:

"ÉThe fact, is, however, that nobody on earth can be trusted with power without restraint. It is 'of an encroaching nature', and its encroachments, more often than not, are for the sake of what are sincerely believed to be good, and indeed necessary, objects." (Allen, Law and Orders 3 rd ed. p. 297).

(v) 'A number of states in their constitutions have made express provision for limitations on their national sovereign powers in the interest of international co-operation. These provisions are to the effect that certain sovereign rights and powers of the state may be limited in connection with international organizations, or may be conferred upon or transferred to international organizations. This has particularly become necessary in some states whose constitutions provide for certain rights and powers, for example the power to legislate, to be exercised only by organs of the state: by becoming a member of an international organization which can in some degree be said to be exercising such powers, the state, in absence of a provision envisaging a transfer of those powers, could be said to be acting unconstitutionally and the resulting exercise of the powers by the organization could be said to be ineffective within the state.'[2]

Under the Constitution of India there is no provision for limitations on the national sovereign powers of our State which can grant an overriding effect on the constitution .

(vi) The constitutional limitations work both in matters of

(a) treaty formation, and

(b) treaty implementation.

The opinion of Lord Atkin ( in Attorney General for Canada v. Attorney General of Ontario ) on the possibilities of different approaches in the aforementioned two segments are right under the British constitution but invalid under our Constitution for numerous reasons including the express indication in the narration under entry 14 of the Union List which suggests that our Constitution contemplates within its matrix both the formation (entering into) and implementation of a treaty. Lord Atkin himself observes that different considerations would be at work in a federal polity and under a system of governance under a written constitution with express constitutional limitations.

New Realities and Art 51 of our Constitution

(vii) That in the Minister of State for Immigration and Ethnic Affairs v Teoh[3], case, the Court found that by entering into a treaty the Australian Government creates a "legitimate expectation" in administrative law that the Executive Government and its agencies will act in accordance with the terms of the treaty, even where those terms have not been incorporated into Australian law. It is worthwhile asserting that the conventional differentiation between the governmental acts with fall outs at the international plane, and the acts impacting the rights and interests of the subjects/ citizens within the realm (domestic jurisdiction), which had been once upon a time made by of Sir R. Phillimore's decision in The Parlement Belge [ vide para 23 p. 30 of this Petition], and which was quoted in Maganbhai v. Union[4], does not survive now. Now we live in a world in which the executive acts done at the international plane, seep into domestic sphere to act often as catalytic agent, but most often as prime over and operative force, mostly, now, through the executive process. Under the Law of Nationality the States protect the interests of their nationals in foreign jurisdictions, but under, what this Petitioner would call the Post-modern International Law, the mighty States promote their business and corporate interests subjecting the not so-fortunate interests under the noxious burden of executing their agenda best if done covertly, otherwise by coercing their Parliaments through the pleas of fait accompli. The realities of the day are captured in the following lines from Noam Chomsky's Hegemony or Survival (p. 13):

'The whole frame-work of international law is just "hot air", legal scholar Michael Glennon writes: 'The grand attempt to subject the rule of force to the rule of law" should be deposited in the ashcan of history -a convenient stance for the one state able to adopt the new non-rules for its purposes, since it spends almost as much as the rest of the world combined on means of violence and is forging new and dangerous paths in developing means of destruction, over near-unanimous world opposition'"

Now, thanks to the Uruguay Round Final Act, adopted by our Central Government under an opaque system, we are led to such a morbid pass as would be evident from such illustrations as these:

(a) The effects of the TRIPS are certain coerced legislation, certain defeats at the WTO's Disputes Settlement Body, ouster of the jurisdiction of our Superior Courts, encroachment on our Sovereign Space, infraction (accomplished/threatened),Écreation of inter-governmental fora to implement the TRIPS agenda without the nation knowing (the technique of Stealth) [crafted through the memorandum of understanding], censure and command under the U.S. Trade Act of 1974, which puts India on Priority Watch List in 2006, in words with which only a country under seize can put up. We are mandated: "The United States also encourages India to join and implement the WIPO Internet Treaties." Even our judiciary is told how to behave.[5] Under the U S Trade Act 1974 Trade Representative can initiate action against India for punitive retaliation etc. if he is of opinion that our Government has violated a trade agreement (such as a World Trade Organization (WTO) agreement or the North American Free Trade Agreement. That Act even says ". 1. An act, policy or practice is considered to be unreasonable if it is unfair and inequitable, even if it does not violate the international legal rights of the United States."[6] And all this to help the MNCs and to promote their agenda

(b) Again thanks to the WTO Treaty the MNCs are even going to the extent of asserting, in ways much more devastating that what is suggested in Minister of State for Immigration and Ethnic Affairs v Teoh[7], that Section 3(d) of our Patents Act is unconstitutional as it is in breach of the TRIPS Agreement! In effect the executive act, without Parliament's involvement, saddled this nation with obligations which ride roughshod over the Constitution. Such an atrocious challenge is natural when the Mashelkar Committee considers Article 27" a specific mandate" holding that there is " a perception that even the current provisions in the Patents Act could be held to be TRIPS non-compliant". Hence, in its view, our law is to be made" TRIPS compliant.' One wonders if there is any difference between the Committee's approach and that of a MNC like Novartis AG. Both seem to assume that a treaty made by the opaque system can provide an anvil under our Constitution to crack even our statute to pieces on the ground of its being ultra vires the TRIPS.

The core point is: Was this sort of Treaty contemplated by our Constitution to be done this way?

(viii) The core pleadings in this Writ Petition is squarely in tune with the decisions of the Hon'ble Supreme Court in [8]; Raja Ram Pal vs. Hon'ble Speaker, Lok Sabha & Ors (Case No.W. P.(civil)1of 2006); I.R. Coelho (Dead) By LRs v. State of Tamil Nadu & Ors. Date of judgment 11/01/2007.

(ix) No treaty was ever done in the past having as wide and as long-lasting an impact in the domestic jurisdiction as the ratification of the Uruguay Round Final Act by the Executive. The U.S. adopted it, with several reservations, though an Act of the Congress. The U.S. rightly thinks that a treaty usurping the legislature's power over trade and commerce must be ratified by an Act, and only then to be adopted by the President. Like other recent trade agreements, including NAFTA, the United States-Canada Free Trade Agreement, the United States-Israel Free Trade Agreement and the Tokyo Round Agreement, the Uruguay Round Agreements was constitutionally executed by the President and approved and implemented by Act of Congress. In the U.K. accession to the EEC Treaty was after Parliamentary approval; participation was through enactment, and after obtaining a referendum.

(x) The issues presented in this Writ Petition deserve to be considered, or reconsidered. in the post- Royappa-Maneka Gandhi-Ajaya Hasia-Kesavanda-.ethos, keeping in view the crudities of the Economic Globalization.

(xi) Under our constitutional system whilst within domestic jurisdiction the terms of a treaty can be challenged if they contravene statutory or constitutional limitations, no statute or a constitutional provision can be challenged before our domestic court for enforcement of treaty terms de hors them.

(xii) The constitutional powers and duties required by our Constitution to be exercised within the domestic jurisdiction, or having impact within the domestic jurisdiction, can not be abdicated, ignored or subjected to extraneous restrictions for any reason whatsoever. In the context of the Irish Constitution (Ireland has a written Constitution from which a lot of borrowings our Constitution-makers had made), in Crotty v An Taoiseach [1987] 2 CMLR 666 the Court observed[9]:

'It would be quite incompatible with the freedom of action in foreign relations conferred on the Government to qualify it or to inhibit it in any manner by formal agreement with other States to do so. The free do, does not carry with it the power to abdicate the freedom or enter into a binding agreement with other States to exercise power to decide matters of foreign policy in a particular way or to refrain from exercising it save by particular procedures and so to bind the State in its freedom of action in foreign policy.'

(xiii) The central thesis in this Writ Petition is founded on propositions inter alia the following:

(1) The Central Government has no unbridled power in its hip-pocket to be exercised at international plane (through treaty making, or foreign relations) de hors the Constitution of India, as the Union of India has no such power conferred under the Constitution.

(2) It a constitutional solecism to think that any Treaty ( be it a Tax Treaty or the WTO Treaty or treaties of other conceivable species) can ever enable the Executive to transgress constitutional competence.

(3) There are only two Articles in our Constitution granting Treaty-making power: Art 73 and Art 253. They, in effect, say what this Petitioner is asserting in the Petition. Art 73 subjects the exercise of power to constitutional limitations. And Art 253 can if invoked only if a Treaty is constitutionally valid. If the executive enters into a treaty, agreement or convention in breach of the basic features of our Constitution, or the Constitution's mandatory mandate, then such an agreement, treaty or convention is constitutionally invalid: hence domestically inoperative and non est. Our courts, as the creatures of the Constitution, must uphold the Constitution by declaring such a treaty, agreement or convention bad. Ours is a written constitution under which all the organs of the polity are the creatures of written constitution: hence bound by its limitations, both express and implied. Our Supreme Court clearly stated in Ajaib Singh v. State of Punjab[10]:

"Neither of Articles 51 and 253 empowers the Parliament to make a law which can deprive a citizen of India of the fundamental rights conferred upon him".

This Petitioner's view is fully supported by (a) Peoples' Commission Report on GATT by V R Krisna Iyer, O Chinappa Reddy, D A Desai, (all the former Hon'ble Judges of the Supreme Court); and Rajinder Sachar (the then Hon'ble Chief Justice of Delhi High Court); (b) V R Krishna Iyer, Dialectic and Dynamics of Human Rights in India pp.364-365; and Shiva Kant Jha, Judicial Role in Globalised Economy pp 306-307

(4) This Petitioner deems it a cardinal principle of our jurisprudence that Hon'ble Court is the ultimate decision-maker in the matter of what sort of norms (their ambit and reach also) of International Law are expected to be given effect within the constraints and culture of polity as structured by our Constitution. "The modern rule". Stephension LJ quoted the illuminating comment of Lord Alverstone CJ, in West Rand Centrla Gold Mining Co v R[11]:

á "Éany doctrine, so invoked must be one really accepted as binding between nations, and the international law, sought to be applied must, like anything else, be proved by satisfactory evidence which must shew either that the particular proposition put forward has been recognized and acted upon by our own country, or that it is of such a nature, any civilized state would repudiate it. É. But the expressions used by Lord Mansfield when dealing with the particular and recognized rule of international law on this subject, that the law of nations forms part of the law of England, ought not to be Construed so as to include as part of the Law of England, opinions of text-writers upon a question as to which there is no evidence that Great Britain has ever assented, and a fortiori if they are contrary to the principles of her laws as declared by her Courts."

The tsunami of economic globalization has subordinated the political realm to the economic realm established under the overweening majesty of Pax Mercatus. Geza Feketeluty has brought out this reality thus:

"Clearly, the reality of globalization has outstripped the ability of the world population to understand its implications and the ability of governments to cope with its consequences. At the same time, the ceding of economic power to global actors and international institutions has outstripped the development of appropriate global political structures."[12]

á '[But in this world we are faced with a complex nerve-wrecking problems. Our executive may through its commitments at the international plane, give rise to international customary law on a particular point; or may make our country party to a treaty having domestic or extra-domestic impact. This situation is likely to be worse as the institutions of economic globalization are clearly in a position to call the shots. Under such circumstances we must uphold our Constitution. No norm of international law can be so forged/evolved as to enable the executive to defile or deface the Constitution.'[13]

(5) Operation of International Law in the domestic sphere

This Petitioner believes that the following stated in Gramophone Company of India Ltd. v. Birendra Bahadur Pandey (AIR 1984 SC 667 states the correct relationship between the internal law and the domestic law:

"'The comity of Nations requires that Rules of International law may be accommodated in the Municipal Law even without express legislative sanction provided they do not run into conflict with Acts of Parliament. But when they do run into such conflict, the sovereignty and the intergrity of the Republic and the suprimacy of the constituted legislatures in making the laws may not be subjected to external rules except to the extent legitimately accepted by the constituted legislatures themselves."

Our Supreme Court followed Lord Denning in Trendtex Trading Corpn. v. Central Bank of Nigeria [1977]1All ER 881 where Lord Denning went to the extent of observing:

"If this court today is satisfied that the rule of international law on a subject has changed from what it was 50 or 60 years ago, it can give effect to that change, and apply the change in our law, without waiting for the House of Lords to do it." (at p. 890).

Lord Denning departed from the transformation theory followed in Chung Chi Cheung v. R. [1938] 4 All ER 786 at 790

(6). The Constitution is supreme whether the Executive Governments acts at the international plane or within the domestic jurisdiction. There are better Constitutional reasons under our Constitution than under the U.S Constitution. In the USA The Supreme Court held in Reid v. Covert [ILR 24 (1957) p. 549][14] 'held the provisions of certain treaties unconstitutional' (Oppenheim p. 77 fn. In Reid 354 U.S. 1 (1957) Justice Black had observed:

"There is nothing in this language which intimates that treaties do not have to comply with the provisions of the Constitution. Nor is there anything in the debates which accompanied the drafting and ratification of the Constitution which even suggests such a result. These debates as well as the history that surrounds the adoption of the treaty provision in Article VI make it clear that the reason treaties were not limited to those made in 'pursuance' of the Constitution was so that agreements made by the United States under the Articles of Confederation, including the important treaties which concluded the Revolutionary War, would remain in effect. It would be manifestly contrary to the objectives of those who created the Constitution, as well as those who were responsible for the Bill of Rights—let alone alien to our entire constitutional history and tradition—to construe Article VI as permitting the United States to exercise power under an international agreement without observing constitutional prohibitions. In effect, such construction would permit amendment of that document in a manner not sanctioned by Article V."

This Petitioner finds on the analysis of Constitution's provisions that we have in India much stronger reasons to accept the Supremacy of Constitution that Justice Hugo Black had in America.

(7). Treaty-making power can become on certain configuration of facts justiciable issues amenable ti Judicial Review. This Petitioner believes in what the Peoples' Commission Report on GATT ( by V R Krisna Iyer, O Chinappa Reddy, D A Desai, (all the former Hon'ble Judges of the Supreme Court); and Rajinder Sachar (the then Hon'ble Chief Justice of Delhi High Court) says on the judicially manageable standards while considering the transgressions and infarction of our Constitution:

"There may be something in the nature of treaty, something about the manner in which it is negotiated, something about the inevitable consequences and something about the inevitable consequences and something about its impact on governance that may call for interference. At one level, the judicial power may simply ordain lifting secreacy or providing for consultation. At another level, it may be legitimate to ask whether the treaty offends fundamental rights or puts at risk the very principles of governance on which the Constitution rests. These are all judicially manageable standards."


Propositions advanced for judicial consideration

This Petitioner advances the following propositions both for the decision on the issues, and the declaration of law:

  • That Sovereignty of the Republic of India is essentially a matter of constitutional arrangement which under our polity provides structured government, and grants powers, under express constitutional limitations, to the organs it creates to exercise public power; [vide the Diagram enclosed vide page 4].
  • That the Executive does not possess any "hip-pocket" of unaccountable powers", and has no carte blanche even at the international plane;
  • That the executive act, whether within the domestic jurisdiction, or at the international plane, must conform to the constitutional provisions governing its competence;
  • That the direct sequel to the above propositions is that the Central Government cannot enter into a treaty which, directly or indirectly, violates the Fundamental Rights and the Basic Structure of the Constitution; and if does so, that act deserves to be held domestically inoperative;
  • That the Executive's signing and adoption of the Final Act of the Uruguay Round Final Act in 1994 was a blatant violation of some of our fundamental rights, and certain vital features of the Basic Structure of our Constitution, besides that went counter to well recognized social, economic and cultural rights in utter derogation to the provisions of the Universal Declaration of Rights;
  • That the signing and adoption of the Final Act bypassed the democratic process as it was neither presented for discussion, nor approval before our Parliament despite the fact that the imposed provisions grossly derogated from national laws and constitutions: thus our democracy suffered because of gross dereliction of the Executive shown in the handling of the Uruguay Round Final Act, and mindless granting of commitments under the treaty having the widest reach and framed in the protocol of pactum de contrahendo subjecting us to unending obligations under all that can be done in the on-going process of the negotiations under the Final Act;
  • That under the Final Act established a 'totalitarian' intergovernmental body, and constituted, in breach of international law, the World's highest Legislative Body and a Judicial Court for the benefit of the MNCs and other economic gladiators who have succeeded in establishing, through strategy and stratagem, the Rule of Market (Pax Mercatus);
  • That the Uruguay Round Final Act virtually subjects our Parliament to morbid coercion and crypto-psychic pressure to legitimize the provisions which the Executive made fait accompli. Without even comprehending,; and subjects our Superior Judiciary to a most gruesome ignominy by subverting the Rule of Law as it makes that, in effect, mere subordinate courts having residuary jurisdiction, or merely courts of execution for the awards and directives emanating from foreign fora;
  • That the terms of the Final Act are adroitly made to 'police' country level economic and social policies thereby making criminal trespass on our nation's sovereign space reserved for our national government; and
  • That many pernicious acts are being done under pressure and persuasion by the WTO and the corporate Mephistopheles ruling the roost as stand illustrated by what have been, (or are being done) in the matters of the collusive intellectual piracy by MNCs, 'the derogation of plant breeders rights, the genetic manipulation by the biotechnology giants., the patenting of life forms including plants, animal, micro-organisms, genetic material and human life forms under the TRIPs agreement'.

Two justifications for the present mode of the entering into a treaty by the Executive through operations under an opaque system are offered as these:—

(i) Cabinet accountability to Parliament, and

(ii) The mandatory requirement of parliamentary approval implicit in adoption of legislation enabling implementation of a treaty.

This Petitioner would show the above justification do not stand our critical scrutiny for the following reasons:

(i) "The Cabinet accountability comes into play only after the country has been bound by the treaty obligations. The government of the day could lose the confidence of Parliament but a change of government does not per se terminate or alter the international obligations undertaken by the outgoing regime."

(ii) "The justification based on enabling legislation equally begs the question. The issue of enabling legislation arises only after the government has committed the country to a treaty, and Parliament is faced with a fait accompli. Even if Parliament refuses to pass the enabling legislation, it will have no effect on India's international responsibility to comply with the obligations already undertaken. Indeed, failure to enact the enabling legislation could in appropriate cases amount to a violation of the treaty. Thus, faced with a piece of enabling legislation, Parliament will have little or no decisive role in preventing the country complying with a treaty which it does not approve."

[1] Oppenheim, International Law ( Peace) ibid p 1232 para 606

[2] Oppenheim, International Law ( Peace) pp. 125-126

[3] (1995) 128 ALR 353, (1995) 69 ALJR 423

[4] AIR 1969 SC 783 [P.B. II pp. 248-]

[5] " India's criminal IPR enforcement regime remains weak, with improvements most needed in the areas of border enforcement against counterfeit and pirated goods, police action against pirates and counterfeiters, judicial dispositions resulting in convictions for copyright and trademark infringement, and imposition of deterrent sentences. The United States urges India to address these issues during the coming year and thereby strengthen its IPR regime. To that end, the United States welcomes deeper cooperation with IndiaÉ"


[7] (1995) 128 ALR 353, (1995) 69 ALJR 423

[8] AIR 1960 S C 845

[9] R. v. Secretary of State for Foreign and Commonwealth Affairs, ex parte Rees-Mog[1994] 1 All ER 457

[10]. AIR 1952 Punj. 309 at 319.; Vide Annex 'C' printed pp 14-15 being an extract from Shiva Kant Jha's Final Act of WTO: Abuse of Treaty-Making Power; and also Shiva Kant Jha , Judicial Role in Globalised Economy pp 306-307 [pub. By Wadhwa & Co, ]

[11] [1905] 2 KB 391

[12]. 2001 Britannica Book of the Year. 191.

[13] Shiva Kant Jha , Judicial Role in Globalised Economy p. 281 [pub. By Wadhwa & Co, ]

[14] 'Although a Status of Forces Agreement may give the sending state a right to exercise jurisdiction the law of that state may not permit it to exercise that right. The conclusion was reached by the U S Supreme Court in relation to the scope of the jurisdiction of US courts martial, which were on constitutional grounds held not to have jurisdiction in peacetime over civilian dependents or employees accompanying members of US forces abroad. (vide Oppenheim p. 1160 fn. 24) - Links on Shivakantjha - Links on Shivakantjha

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