Untitled Document

Treaty-Making Power: Certain Legal Aspect

By Shiva Kant Jha


A Rehash of the traditional British position: the traditional ideas ummarized

The Points (XII.6) and (XII.7) constitute a mere précis of the traditional British view, rather its mere rehash. Treaty is done in exercise of prerogative power [1] by the Crown as it concerns the Crown's foreign affairs. But the Treaty prerogative cannot be used to violate the legal rights of a British subject, except on being liable for any damage he suffered.

This view is founded on the dictum of Sir Robert Phillimore ,Judge of the Admiralty Court in (1879) 4 PD 129- in Parliament Belge, and is quoted with approval both in the Majority, and Concurring Judgment in Maganbhai. The British position is thus ummarized by Oppenheim already cited)

Besides, it has to be appreciated that under the British Constitution it is possible to think that if the legislature and judiciary are destroyed, or pass away on account of their own death-wish, all powers, right now exercised by them, would go back to the Executive, i.e. the Crown. This is so, as all the democratic institutions in the U.K. are the bye-products of the struggle of people to tame the Executive Government. [In India, if such things happen, the Constitution itself would vanish, and our "We, the People' would again frame out of some revolutionary cauldron a Constitution.]

107. Justice Shah in Maganbhai summarized the British Treaty practice thus:'

"In Wade and Phillips' Constitutional Law, 7th Edn., it is stated at p. 274:

"At first sight the treaty-making power appears to conflict with the constitutional principle that the Queen by prerogative cannot alter the law of the and, but the provisions of a treaty duly ratified do not by virtue of the treaty alone have the force of municipal law. The assent of Parliament must be obtained and the necessary legislation passed before a court of law can enforce the treaty, should it conflict with the existing law."

On p. 275 it is stated that "treaties which, for their execution and application in the United Kingdom, require some addition to, or alteration of, the existing law" are treaties which involve legislation. The statement made by Sir Robert Phillimore Judge of the Admiralty Court in (1879) 4 PD 129---[though the ultimate decision was revised by the Court of Appeal on another point vide (1880) 5 PD 197] in dealing with the effect of a "Convention regulating Communications by Post" signed and ratified in 1876 which purported to confer upon Belgian mail steamers immunity of foreign warships is appropriate:

"If the Crown had power without the authority of Parliament by this treaty to order that the Parliament Belge should be entitled to all the privileges of a ship of war, then the warrant, which is prayed for against her as a wrong-doer on account of the collision, cannot issue, and the right of the subject but for this order unquestionable, to recover damages for the injuries done to him by her is extinguished."'


The view in the Parlement of Bege which Justice Shah followed in Maganbhai is historically dated, no longer relevant.

The view set forth in Parlement of Belge (1879 ( 4 P.D. 429) is founded on the Parlement of Belge (1879 ( 4 P.D. 429 reflecting the political thinking of the 18th and 19th centuries bearing the imprint of features as these:

(a). During such times public rights against the Crown were yet to be recognized. Even the concept of private right was very narrow.

(b) In the Parlement Belge the claim was against the wielders of public power who sought to cause prejudice to a British subject in pursuance to a treaty 'concluded by Crown within the assent of Parliament' (Keir and Lawson p. 160).

(c ). It portrays the view in consonance with the British polity of that time when it was neither democratic nor egalitarian, ( nor under the discipline of the law enforced by constitutionally guaranteed rights)

(d) By then the British jurists had not analyzed public and private rights adopting a functional approach. They shade into each other. And these rights are only formally different, in substance they are mere legally protected interests of people.

(e). The changes in the world-view over the last 3 centuries have been fundamental in many ways.. All the above statements of law is based on The Parlement of Belge [(1879) 4 PD 129] decided by Sir Robert Phillimore in 1879. Keir and Lawson refers to The Parlement of Belge at p. 160 of their Cases in Constitutional Law (5th ed), but mentions a material point in the footnote 2: he says---

"It is interesting to note that this view is found as early as 1728 in an opinion of Yorke A.-G. and Talbot S.G. concerning the true interpretation of a treaty of neutrality concluded in 1686 between the Crown of England and France…"

It deserves to be noted '1668' was only 2 years earlier to 1688 when the Glorious Revolution brought about the overthrow of King James II of England. In 1689 the Bill of Rights 1689 was granted which become one of the great charters of the constitutional control of the Crown along with Magna Carta, Habeas Corpus Act 1679 and Parliament Acts 1911 and 1949.

The view in The Parlement of Belge reflected the political philosophy of the time. Thomas Hobbes ( 1588 -1679), in his Leviathan, asserted an uncontrolled power of the Crown. In his "The Law of Free Monarchies", James I held that judicial and executive powers inhered in the King alone who was God's vice-regent on the earth. [This legal position still continues in England: "In the contemplation of the law the Sovereign is always present in the court….". [2] ] The Tudors ruled as absolute monarch when the King believed the State itself ("L'Etat,c'est moi"). [vide The Tudor Constitution by Elton pp.17-18.& 234-235]. The Parlement of Belge was decided in the Victorian era when the Tudor view of 'Sovereignty' was still operative, and the people of England was wholly unconcerned with the foreign affairs, and had had hardly any Public Right. In fact this state of affairs continued till the World War I accurately described by Taylor in the History of England 1914-1945


The traditional British position restated by Lord Atkin in Attorney General for Canada v. Attorney General of Ontario: Justice Shah's reflections in Maganbhai

The observations of Lord Atkin in Attorney General for Canada v. Attorney General for Onterio [3] , were referred in the obiter dicta made in Maganbhai v. Union of India [4] . That case emanated from Canada and, Lord Atkin's view was quoted with approval in his concurring judgment by Justice Shah. Justice Shah would have got the correct constitutional perspective within the parameters of our Constitution, if he would not have omitted certain expressions inside Lord Atkin's dictum. The correct and material text of Lord Atkin was set forth in Attorney-General of Israel v. Kamiar, where President (Justice Agranat) perceptively observed [5] :

"I will summarize what I have said by stating that the system in force in Israel for the conclusion of international treaties is similar to that which is characteristic of the English legal system and which was described by Lord Atkin in Attorney General for Canada v. Attorney General of Ontario [1937] A.C. 326 at 347 in the following words:

'Unlike some other countries, the stipulations of a treaty duly ratified do not within the Empire, by virtue of the treaty alone, have the force of law. If the national executive, the government of the day, decide to incur the obligations of a treaty which involve alteration of law, they have to run the risk of obtaining the assent of Parliament to the necessary statute or statutes. To make themselves as secure as possible they will often in such cases before final ratification seek to obtain from Parliament an expression of approval….Parliament …… has a constitutional control over the executive; but it cannot be disputed that the creation of the obligations undertaken in treaties and the assent to their form and quality are the function of the executive alone. Once they are created , while they bind the State as against the other contracting parties, Parliament may refuse to perform them and so leave the State in default. In a unitary State whose Legislature possesses unlimited powers the problem is simple. Parliaments will either fulfill or not treaty obligations imposed upon the State by the executive. The nature of the obligations does not affect the complete authority of the Legislature to make them law if it so chooses."' [ emphasis supplied]

Lord Atkin was stating law in the context of the British jurisprudence, and treaty practice. But he did say something which is of paramount importance for us whose Government is under constitutional limitations, including Federalism . He observed:

"But in a State where the Legislature does not possess absolute authority: in a federal State where legislative authority is limited by a constitutional document, or is divided up between different legislatures in accordance with the classes of subject matter submitted for legislation, the problem is complex. The obligations imposed by treaty may have to be performed, if at all, by several legislatures: and the executive have the task of obtaining the legislative assent not of the one Parliament to whom they may be responsible: but possibly of several Parliaments to whom they stand in no direct relation. The question is not how is the obligation formed, that is the function of the executive: but how is the obligation to be performed and that depends upon the authority of the competent legislature or legislatures." [ italics supplied]

The Privy Council in this case stated two things:

(a) The Privy Council stated the typical British approach in this case emanating from the Canadian jurisdiction as the Preamble to the British North America Act, 1867 stated that :

"Whereas the Provinces of Canada, Nova Scotia, and New Brunswick have expressed their Desire to be federally united into One Dominion under the Crown of the Crown of the United Kingdom of Great Britain and Ireland, with a Constitution similar in Principle to that of the United Kingdom;"

Art. 9 stated :

'The Executive Government and Authority of and over Canada is hereby declared to continue and be vested in the Queen."

(b)The Privy Council held that legislation implementing an international convention was void as it contravened Sections 91 and 92 of the British North America Act, 1867.

Lord Atkin's distinction between (1) the formation, and (2) the performance of the obligations created under a treaty is correct and well understandable under the British constitution. Under the British Constitution the Crown is not a creature of the constitution, it is, of course, an integral part of the constitution. The British constitutional history is an expanded metaphor of the struggle conducted over centuries in the name of people against the absolute power of the Crown. Even this day there is nothing wrong in saying that the Crown has all the powers conceivable except that which it lost to Parliament and the Courts in course of the country's grand and majestic constitutional history. It is, hence, understandable to think that the Crown has certain inherited and inherent powers. Treaty is done in exercise of prerogative power by the Crown as it concerns the Crown's foreign affairs. The exercise of this power was not of much consequence till the beginning of the 20th century. The Crown had all the conceivable power at the international plane as it had not been tamed by any constitutional mandate. Hence the formation of a treaty at international plane was wholly in the Executive's province. In India the Executive possesses no extra-constitutional power. As a creature of the Constitution it is subject both in the matter of the formation of a treaty and the performamce of obligation to the limitations placed by the Constitution and the law. Whether a member functions in Delhi, or Detroit, it must conform to the Rule of Law.


The Traditional Indian view evolved in the pre-Constitution ethos

In Gujarat v. Vora Fiddali [6] our Supreme Court held that in India Treaties occupy the same status, and adopt the same treaty practice as in the United Kingdom. The British Parliament which enacted G.I. Act, 1935 did not embody the American view of treaties in it. The existing law was continued by the G.I. Act,1935 by the Indian Independence Act 1947, and by our Constitution. [7] But the Treaty-making power in the U. K. is an exercise of the Crown's Prerogative to the extent recognized as still subsisting by the courts and Parliament. Besides, the Crown is under no constitutional constraints (which over-grip our Central Government), and it possesses certain inherent powers which can be used at the international plane. But our Central Government is denied any such power as its powers are only constitutionally conferred powers. What differentiates our constitutional position from the British constitutional position went unnoticed.


Historical Perspective must be adopted if our Constitution is to be upheld

The constitutional principle is that the legally protected interests, which we call 'rights' of people, cannot be prejudicially affected without the assent of Parliament wherein the entire nation is deemed present through the duly elected representatives. The concept of the legally protected interests has evolved over the centuries, and now what it means can be deductively drawn only from the close examination of the Constitution which we have given to ourselves, and which the Sovereignty of the State is expressed and organized. The view set forth in the Parlement of Belge is to be widened and modified. The change wrought by Time has to be recognized. The courts have treated TIME as a distinguishing factor in the matters of interpretation. Lord Buckmaster said in Stag Line Ltd. V. Foscolo Mango & Co. Ltd. [8]

"It hardly needed the great authority of Lord Herschell in Hick v. Raymond and Reid (2) to decide that in constructing such a word it must be construed in relation to all the circumstances, for it is obvious that what may be reasonable under certain conditions may be wholly unreasonable when the conditions are changed. Every condition and every circumstance must be regarded, and it must be reasonable, too, in relation to both parties to the contract and not merely to one."

And in McDowell's case Justice Chinnappa Reddy referred to the observations of Lord Roskill in Furniss v. Dawson:

"The error, if I may venture to use that word, into which the courts below have fallen is that they have looked back to 1936 and not forward from 1982."

F W Maitland wrote to Dicey himself: " the only direct utility of legal history… lies in the lesson that each generation has an enormous power of shaping its own law; see Cosgrove The Rule of Law: Albeit Venn Dicey: Victorian Jurist (1980) p 177.

As Justice Shah quoted Lord Atkin's view and read Art, 73 and 253 of our Constitution through the British coloured glass at a time by when many dimensions of our Constitution were still not known: to illustrate (a) the Preamble is part of Constitution), and the doctrine of the Basic Structure of our Constitution(for which the nation awaited till 1973 for Keshvanand Bharti v. State of Kerala AIR 1973 SC 1461 to get decided holding, interalia others, that the fundamental rights are under express symbiotic relationship with other basic features. Justice Shah had good reasons not know the evolution in the Jurisprudence of Interests.

In re Parlement Belge and Walker v. Baird, on which Maganbhai relied, reflected the post-Bill of Rights 1689 phase. This view was exported to India through the imperial courts to rule till the commencement of our Constitution; and to the USA under analogous circumstances till the US Constitution was adopted on September 17, 1787, by the Constitutional Convention in Philadelphia, Pennsylvania, and ratified by the US states in the name of "The People". The view in The Parlement of Belge reflected the political philosophy of the time. Thomas Hobbes ( 1588 -1679), in his Leviathan, asserted an uncontrolled power of the Crown. In his "The Law of Free Monarchies", James I held that judicial and executive powers inhered in the King alone who was God's vice-regent on the earth. [This legal position still continues in England: "In the contemplation of the law the Sovereign is always present in the court….". [9] ] The Tudors ruled as absolute monarch when the King believed the State itself ("L'Etat,c'est moi"). [vide The Tudor Constitution by Elton pp.17-18.& 234-235]. The Parlement of Belge was decided in the Victorian era when the Tudor view of 'Sovereignty' was still operative, and the people of England was wholly unconcerned with the foreign affairs, and had had hardly any Public Right. In fact this state of affairs continued till the World War I accurately described by Taylor in the History of England 1914-1945 The assertions of Public Opinion after the World War I made the Courts and legislature recognize the change in circumstances warranting evolving the law of Treaties further still.

The Province of Rights has become wider and wider under our Democratic Constitution. What they said in In re Parlement Belge and Walker v. Baird was continued but creatively developed. The British courts illustrated the freshness and creativity about which Judge Manfred Lachs of the International Court of Justice said: [10]

"Whenever law is confronted with facts of nature or technology, its solution must rely on criteria derived from them. For law is intended to resolve problems posed by such facts and it is herein that the link between law and the realities of life is manifest. It is not legal theory which provides answers to such problems; all it does is to select and adapt the one which best serves its purposes, and integrate it within the framework of law [11] ."

But the impact of our Constitution was not realized by our Supreme Court when the obiter observations were made on India's Treaty-making power in Berubari, Maganbhai, or Azadi Bachao. This happened because the Hon'ble Justice Shah made his observation without subjecting it to the white-heat of the forensic arguments by the contestants in the cause.

The U.S Constitution recognized a wider trajectory of 'rights' of people. Justice Sutherland who was led to believe in Curtiss Wright Case [ 299 U S A 304 (1936)] that the USA possessed 'extra-constitutional" [12] : he said:

"And since the states severally never possessed international powers, such powers could not have been carved out from the mass of state powers but were transmitted to the U.S. from some other source. During the colonial period , those powers were possessed exclusively by and were entirely under the control of the Crown. ……."

In sustaining the Migratory Bird Treaty Act of 1918, Justice Holmes, delivering the opinion of the U.S Supreme Court, stated his core reason as the following:

"The treaty in question does not contravene any prohibitory words to be found in the Constitution. The only question is whether it is forbidden by some invisible radiation from the general terms of the 10th Amendment."

To undo his view Mr. Bricker moved a constitutional amendment to subject the Treaty-making power to the constitutional control. The 'Bricker Amendment, considered by the Senate in 1953-54, declared that no treaty could be made by the United States that conflicted with the Constitution, was self-executing without the passage of separate enabling legislation through Congress, or which granted Congress legislative powers beyond those specified in the Constitution'. It was passed by the Congress but could not be cleared by the Senate mainly because the President Eisenhower did not like that for obvious reasons. No Executive Government would ever like to subject its brute power to constitutional discipline. But credit goes to the U S Supreme Court which in Reid v. Covert (1957) held certain provisions certain treaties unconstitutional. The Constitution is supreme whether the Executive Governments acts at the international plane or within the domestic jurisdiction. The Supreme Court held in Reid v. Covert [ILR 24 (1957) p. 549] [13] '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…..."


Factors which have altered the perspective on Treaty-Making Power

The view stated in Parlement of Belge assumes that Treaties do not affect the people as they do not have an impact on the domestic affairs. In fact, till the commencement of the World War I the general belief was that international affairs were wholly for the payers at the international levels to bother about. Where these affected people's interests, Parliamentary approval was mandatory. But now things have changed: rather the Treaties affect our Rights and Interest radically and deeply. To illustrate;

(i). The Uruguay Round Final Act is not a self-executing Treaty: YET it many of the commitments under this WTO Treaty are being given effect "through administrative procedures and where necessary, legislation." Justice Cooke remarked in the New Zealand Court of Appeal in Tavita v. Minister of Immigration [14] that "a law [is] undergoing evolution". The view that mere negotiation and ratification of a Treaty can never affect the rights and interests of subjects/citizens. This view was examined in detail by the High Court of Australia in Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh(1995) 183 CLR 273, [1995] HCA 20 [coram: Mason CJ, Deane, Toohey, Gaudron & McHugh JJ. ] . Per majority the Court held that ratification of an international convention can be a basis for the existence of a LEGITIMATE EXPECTATION. Ratification of a Treaty is not a mere grandstanding on the international stage. It does have effects on the rights/interests and legitimate expectations of the citizens. It was suggested "that the ratification by the Executive Government of a treaty, not incorporated by Parliament into domestic law, could give rise to a legitimate expectation that administrators would take the treaty's provisions into account in exercising their powers…" [15] .. We already see in our country how the agenda under the WTO Agreement and all other agreements coming within its umbrella are being implemented by our Executive. In W.B. v. Keshoram Industries AIR 2005 SC 1646 at p. 1759 the Constitution Bench of the Supreme Court quoted Vishaka and others [ (1997) 6 SCCC241 ] wherein a reference to Minister for Immigration and Ethnic Affairs v, Teoh (128 Aus. LR 353 had been made with approval:

"It is now an accepted rule of judicial construction that regard must be had to international conventions and norms for construing domestic law when there is no inconsistency between them and there is a vod in domestic law, The High Court of Australia in Minister for Immigration and Ethnic Affairs v, Teoh (128 Aus. LR 353) has recognized the concept of legitimate expectation of its observance in the absence of a contrary legislative provision, even in the absence of a Bill of Rights in the Constitution of Australia."

The said doctrine of legitimate expectation is receiving now a very widened meaning from our courts.

(ii). The Report of the Peoples' Commission on GATT (by V R Krisna Iyer, O Chinappa Reddy, D A Desai, and Rajinder Sachar p. 143 ) considered in detail of the nature of obligations causing serious concern for the people on account of mere formation of a Treaty at the international plane:

"While it is arguable that since treaties do not give rise to enforceable obligations within the Indian legal system, there is no room for judicial interference until legislation is passed; and , further-flowing from this argument ----since Parliament will assess the situation when enacting implementing statutes, there is no scope for the judiciary to intervene. This argument proceeds on the fallacious assumption that treaties do not pose a danger to the constitutional system and fundamental rights until they are given shape in the form of legislation. Treaties are solemn obligations. Within their own legal contexts ---and the domain of international law ---they are legal and binding on the Union of India and States. They cannot be resiled from , even if legislation implementing them is not passed. The consequences of treaty violation are in the realm of international law. Particular treaties may contain vigorous forms of enforcement. They may prove to be self fulfilling (even though they are not self executing and applicable in the domestic legal system). Treaty violations may bring reparations and trade distortions. In this day and age where the international order is increasingly regulated by multi-lateral treaties, there is little protection from the falsely comforting that that realities do not pose a threat since Parliament has to pass implementing legislation to make the treaty enforceable within the Indian legal system."

(b) Under the neo-liberal paradigm established under the global economic architecture through the WTO and others there has been an enormous intrusion in the domestic field through the executive/administrative decisions affecting not only our polity but all the segments of economy and social management. The points bearing out the intrusions of this sort are set forth in the Grounds against the WTO Treaty. It is a matter of great concern that the Executive has subjected our nation to international obligations by compromising with the jurisdiction of our Supreme Court. The Articles III and XVI virtually subjugate our Superior Courts to the WTO.

Article III, Paragraph 3. The WTO shall administer the Understanding on Rules and Procedures Governing the Settlement of Disputes (hereafter referred to as the "Dispute Settlement Understanding" or "DSU") in Annex 2 to this Agreement.
Article XVI, Paragraph 4. Each Member shall ensure the conformity of its laws, regulations and administrative procedures with its obligations as provided in the annexed Agreements."

(c) The Executive's subservience has now gone to the extent that our Parliament succumbs to the fait accompli brought about by ratification of a Treaty leaving Parliament a mere pathetic institution which may weep or cry but, in the end, must comply. To illustrate: let us see how helpless our Parliament felt when the Patents (Second Amendment Bill) was under consideration. Whilst Pranab Mukherjee excused the unequal treaty as it was begotten in an unequal world, Manoj Bhattacharya expressed the cry of his heart with an iron in his soul in Rajya Sabha.

"One thing transpired, that there is an element of helplessness; they are trying to plead that we are in a helpless condition, that we cannot do it because we are already a member of the WTO, we are already committed we are already in the trap; and so we cannot come out of that trap, and for that only we have to effect these changes to the already existing very, very good and very, very progressive Indian Patents Law of 1970".

(v) 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. It is possible to create situations wherefrom this country can never free itself. The Executive can, through the mere fact of the formation of a Treaty at the international plane, create obligations under International Law the breach whereof can visit us with consequences in many ways including these:

(a) Claim for reparation and damage for the breach of such obligations;

(b) Dragging our Government to litigation at the international plane through arbitration, or enforcement by the prescribed body like the Disputes Settlement Body under the WTO regime;

(c ) By filing case at the international law a Case for providing protection to one's domestic corporations or residents by invoking the international law of Nationality (as once done was done in the The Nottebohm Case (Liechtenstein v. Guatemala) ( April 6, 1955, 1955 I.C.J. 4): thus exposing the nation to actions through the enforcement power of the Security Council which may, perish the thought, lead to sending cruise missile to punish the derelict State..

(vi) Through the terms of a Treaty the Executive can encroach on any field of legislation making it impossible for Parliament to take its initiative even if it ever decides to do this, as that particular legislative field might stand previously occupied by the terms of a Treaty.. Our Parliament can be coerced to enact law to implement the Treaty Obligations. This is what had happened whilst bringing about Amendments in the Patents Act [Amendments (in 1999, 2002, 2005, 2006 ] which were were necessitated by India's obligations under TRIPS under the WTO regime. It is strange that in enacting some major laws, our Government showed studied forgetfulness of the Preamble to the Constitution, the Fundamental Rights, Directive Principles of State Policy, and evident compliance with the mandate of the the Uruguay Round Final Act. To illustrate: the Protection of Plant Varieties & Farmers' Rights Act, 2001 states in its Preamble:

"……And whereas India, having ratified the Agreement on Trade Related Aspects of Intellectual Property Rights should interalia make provision for giving effect to sub-paragraph (b) of paragraph 3 of article 27 in Part II of the said Agreement relating to protection of plant varieties;"

The new unconstitutional trends are evident in many areas which have been explained by the People's Commission in their Report of the Peoples' Commission on GATT already referred. The measure of the servitude to which our Executive has subjected this country, which we call with pride the Sovereign Socialist Democratic Republic, is illustrated by numerous acts effected through treaties, to mention one most dominant right now in our national consciousness. The terms of reference to the Mashelkar Committee on the Patents (Amendment) Bill, 2005, was to "make Patents Act compatible with India's international obligations, particularly ."

(d) The WTO Treaty is sui generis. It is an Agreement to go on Agreeing in future to so many ever new Agreements.. This WTO Treaty is a pactum de contrahendo [16] . This Treaty was not a conventional consensual engagement.. It involved an undertaking to negotiate or conclude a set of pre-fabricated agreements. The signing of this Final Act was a most important event of modern times. When a Treaty is done in the protocol of pactum de contrahendo, the contracting Parties agree to carry on negotiations to achieve arguments as conceived in a treaty. To hope that we would stand erect at the later stages of the negotiations would be hoping against hope knowing how our Executive cringed at Marrakesh, and how much ready it is to further the interests of those who have hardly any commitment to our Constitution. So our nation was bound hands and feet, like Dr. Faustus to Mephistopheles portrayed by Thomas Marlowe in the Tragedy of Dr. Faustus.

(viii). 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. 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 [ vide the Opinion of Walter Dellinger (Asst. A.-G. ) to the U.S Government.

(ix) The obligations under there formed Treaty can be executively implemented under opaque system through the existing legal provisions. Two illustrations are mentioned:

(a) The Double Taxation Avoidance Conventions, done under Section 90 of the Income tax Act, provide certain remedies through the MAP provisions. But under the WTO regime, the foreigners or the non-residents have been given, an additional and supervening remedy, to avail of the provisions under Article XIV and Article XXII of the Geeneral Agreement on Trade in Services which provide remedies at the foreign fora.

(b). Article III of the WTO Agreement wants the WTO and its other organs to " cooperate, as appropriate, with the International Monetary Fund and with the International Bank for Reconstruction and Development and its affiliated agencies." This neo-liberal agenda is being promoted throght the provisions of the Land Acquisition Act 1894. which authorizes our Government to acquire land for public purpose.

(e) Joanna Harrington, in his paper on 'The Role of Parliaments in Treaty-Making' [17] summarizes the ways in which Treaties affect public interest even when they are yet to be implemented: to quote—

"With respect to Westminster-style democracies, the analysis with the now trite statement that, at common law, a treaty does not automatically have domestic legal effect and thus Parliament , in theory, retains its role as the body with primary responsibility for law-making by enacting legislation to give a treaty domestic effect. But law-making by treaty does not always require the enactment of legislation, particularly if the treaty obligation can be implied within or carried out through the pre-existing law., and thus Parliament may not always have a role. Moreover, once ratified, treaties are clearly binding under international law and their legal character puts pressure on a state's domestic institutions to ensure compliance, as evidenced by the long-standing rule of statutory interpretation that presume conformity with international law, at least where an ambiguity can be found. Further evidence of the domestic effect of treaties can be seen in the courts in the form of judicial modification to the doctrine of legitimate expectation in Australia, [18] new rules on statutory interpretation in New Zealand [19] and new uses for the values of unimplemented treaties in Canada."

(viii) Other instances of the culpable intrusion in our sovereign space are:

(a) Wrongful Change in Primary Governmental Functions

(b) Violates our Fundamental Rights

(c ) Wrongful Assignment of the Legislative Power of Parliament [20]

(d) Wrongful Assignment of the Judicial Power [21]

(e) Our Constitution wrongfully Amended.

(f) Judicially Pronounced Principles of Constitutional Governance Breached


The Strategy of the Conspirators in this Globalised World

[International Law vs. our Constitutional Law]

Georg Schwarzenberger in A Manual of International Law (5th ed.pp. 46-47) formulates certain core propositions to show how the so-called International Lawyers have tried to subjugate the democratic constitutions. He has prefaced his exposition with a remarkable observation which deserves to be borne in mind. He says:

"The doctrine of the supremacy of international law over municipal law appeals to the amour proper of international lawyers and has its attractions de lege ferenda. In lex lata, it corresponds to reality on the -always consensual -level of international institutions, in particular international courts and tribunals."

'Amour proper' means "Respect for oneself" which easily turns into egoistically pursuit to aggrandize power and status. Schwarnenberger states.

(f) On scanning the trends of times we can say: men always need some idiotic fiction in the name of which they can face one another. Once it was religion, then it was the States, and now the Market. This has led to a situation well 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'"

Condolezza Rice , explained the U S indifference to the ICJ decision in Nicargua case: " international court jurisdiction has "proven inappropriatefor the United States".

But it is for our Superior Courts to establish the relationship inter se International Law and our Constitution.



(a) The Jurisprudence of 'interests'

After examining the WTO Treaty and the other Agreements under its umbrella, 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, have thus summarized the law in their Peoples' Commission Report on GATT : [ p. 141 ]:

"The Supreme Court has therefore taken the view that where it is asked to determine the nature, scope and power of the Executive under a provision of the Constitution, it was irrelevant that the nature of the Executive's decision was wrapped up in the political thicket. The Supreme Court in S. R. Bommai (1994) 3 SCC at pp. 200-201, observed:

Roscoe Pound classifies 'Interests' under three main heads: individual, public and social. His broad analysis, as set out by Paton in A Text Book of Jurisprudence, can be schematically presented thus:


Social interests

  • The efficient working of the legal order.
  • National security.
  •  The economic prosperity of society.
  • The protection of religious, moral, humanitarian, and intellectual values.
  • Health and racial integrity.

Private interests

  1. Personal Interests.
  2. Family Interests.
  3. Economic Interests.
  4. Political Interests.

Paton points out, at p. 128 of his book, that:

"The correct view is that logically no exact division can be drawn at all between social and private interests." "Political Rights" are treated as a species of Private Interests.

The distinction between Public law and Private law is vanishing fast. [22] He explains how the Private Interests subsume one's Political Interests. He says (at p. 159):

"Participation in government is an essential personal right, according to our modern democratic theory. It was Locke's merit to stress that the ruler was under a trust to regard the welfare of his subjects. It is not enough, however, to emphasize that the State exists for the benefit of men and not men for the glory of the State. A doctrine of the philosopher king may easily lead to despotism, however benevolent it may be. The dignity of human personality demands that the individual takes part in the selection of the fundamental policies which are to guide the welfare of the State."

Julius Stone in his Legal System and Lawyers' Reasonings examines what is said to differentiate between Private and Public Law: to quote—

"Along with many modern thinkers , Kelson rejects the argument, of Roman origin, that public and private law pertain to different kinds of interests. He points out that if there were no public interest in individual contractual relations, society would not take the troule either to enforce or regulate them. So, too, with other branches of so-called private law. Conversely, "public law" is seen in the ultimate analysis to be concerned with interests of inviduals in indistinguishable in kind from those protected by "private law".

The artificiality of such distinction clearly emerges from the study of many of the British decisions. [vide The All England Report Review 1983 ]

If through the terms of the WTO Treaty a segment of the legislative powers are shed off to be exercised by or under the direction of the WTO or other external body, our Parliament stands pro tanto impaired. We never elect our members of Parliament to outsource their essential legislative powers this way. We do not exercise our rights to vote those who would rubber stamp a foreign agenda (as our Parliament has done in implementing the TRIPS obligations). We cannot tolerate this trespasses on our democratic rights by allowing the executive to occupy legislative fields through the Treaty-making power. It is the subversion of our polity that fait accompli is posed before our Parliament that it had no option other than to approve such situations. The threat of actions under the International Responsibility can be used to make the members of Parliament virtually a herd of sheep. We also materially suffer if our Judiciary is deprived of its powers in a particular segment by transference of this power to foreign for a for adjudication. All the great words said about the Rule of Law and the Basic Structure of Constitution would become futile, if such things are allowed to happen.

Nothing should turn on the analytical differentia inter se public or private law, and the public and private rights. If do not respect the Basic Features of our Constitution, evern our Fundamental Rights get affected. After a close analysis of the organic character of our Constitution and the protocol for the exercise of powers H. M. Seervai observes :

"The discussion in paras 30.60 and 30.61 above and in this para has show that the objectives of our Constitution as embodied in provisions of our Constitution are integrally connected and any fundamental change in one part would involve far-reaching changes in several other parts."

Towards the end of his exposition Seervai articulates a set of proposition which include the following:

"Justice, social, economic and political is provided for not only in Part IV (Directive Principles) but also in Part III (Fundamental Rights)."


Juridical Analysis of Rights and Interests under the interstices of the Part III and Part IV of our Constitution.

As forming part of the basic structure in our Constitution, the fundamental rights are under express symbiotic relationship with other basic features: viz. in Kesavananda's Case (AIR 1973 SC1461, also S. R. Bommai v. Union of India AIR 1994 SC 1918 ) the Hon'ble Supreme Court determined certain features of our Constitution constituting basic structure: these are—

(1) Supremacy of the Constitution;

(2) Republican and Democratic form of Government;

(3) Secular character of the Constitution.

(4) Separation of powers between the legislature the executive and the judiciary

(5) Federal character of the Constitution.

The symbiosis between the Fundamental Rights and the Directive Principles have been often stressed by the Supreme Court. "The thrust of Article 14 is that the citizen is entitled to equality before law and equal protection of laws. In the very nature of things the society being composed of unequals a welfare State will have to strive by both executive and legislative action to help the less fortunate in society to ameliorate their condition so that the social and economic inequality in the society may be bridged." [23] "The broad egalitarian principle of social and economic justice for all was implicit in every Directive Principle and, therefore, a law designed to promote a Directive Principle, even if it come into conflict with the formalistic and doctrinaire view of equality before the law, would certainly advance the broader egalitarian principle and the desirable constitutional goal of social and economic justice for all. "The Constitution envisages the establishment of a welfare state at the federal level as well as at the State level." [24] In Kesavananda's Case (AIR 1973 SC1461 at 1641) , Hegde and Mukherjea JJ. Observed:

"The Fundamental Rights and Directive Principles constitute the "conscience of the Constitution…". There is no antithesis between the Fundamental Rights and Directive Principles ….and one supplements the other."

Noting the nature of the Directive Principles, in his Rau Lectures, Hegde J had said:

"….a mandate of the Constitution, though not enforceable by courts is none the less binding on all organs of the State. If the State ignoresthese mandates, it ignores the Constitution." [25]

´….the view that the principles were not bindingif they were not enforcable by law, originated with John Austin, and Kelson propounded a similar view. However, Prof. Goodhart and Roscoe Pound took a different view. According to them, those who are entrusted with certain duties will fulfill them in good faith and according to the expectations of the community." [26]


Widening of the 'Justiciability of interests' through the judicially approved doctrine of 'legitimate expectation'.

. The decision of the House of Lords in CCSU v. Minister of Civil Services [1984] 3 All ER 935 has been relied with approval by our Supreme Court in a lot of cases [including S.R. Bommai v. UoI (1994) 3 SCC 1, pr. 373].. In this case the ambit of judicial control was determined by Lord Diplock in that decision. Commenting on this decision Keith Davis comments in The All England Report Review 1984 (at p. 5) with reference to the aforesaid observation of Lord Diplock:

"Of the two classes, (a) seems simpler and presumably includes official decisions affecting private property but (b) embraces most of the difficult cases. ….In effect the 'legitimate expectation' is that official powers shall not be used arbitrarily: it is ultra vires to do so.But this merely gives rise to the possibility of seeking judicial review; whether a remedy is given or withheld is a matter of judicial discretion. In the GCHQ case there was a 'legitimate expectation' that accepted practice of trade union consultation should be adhered to; but 'national security' prevented the issue in dispute from being 'justiciable'


A miscomprehension which must be removed.

That the simplistic view, adopted by many under the influence of the British constitutional practice, is that a Treaty is not a matter of domestic concern unless it affects:

(a) the law of the land, and

(b) the vested rights protected under the law.

These issues are to be considered under the parameters of the Constitution of India:

(g) The Executive power, under our Constitution, is co-terminus with the powers of Parliament; but at any given point of time the ambit of the Executive power is wider than the legislative field occupied by the Parliamentary enactments. But the Executive power, too, must be exercised not de hors the constitutional provisions. No Treaty can authorize, even in the realm of the exercise of the Executive power, to ride roughshod over our Constitution's commitments to the nation. Our Supreme Court has perceptively observed that in most matters the exercise of the Executive power "are not far removed from legislation" [27] . Hence the exercise of the executive power cannot avoid total subservience to the constitutional limitations.

(ii) . The Report of the Peoples' Commission on GATT ( by V.R. Krishna Iyer, O. Chinnappa Reddy, D.A. Desai and Rajinder Sachar, the former Judges) has rightly summarized the correct constitutional principle when it said [28] :

"The Constitution makers intended the government to be possessed of an executive power which is wider than the narrower duty to give effect to legislation (see Ram Jawawayya Kapur v. UoI AIR 1955 sc 549). But in exercise of this wider power, the rights of citizens cannot be taken away without specific legislative sanction and authority (Bijoe Emmanuel AIR 1987 SC 788).This rule is fundamental and a necessary adjunct to the recognition of a wide executive power. Equally, in normal circumstances, it is somewhat sanguinely assumed that all exercise of the executives power would be consistent in a manner consistent with the principles of the basic structure of the Constitution. But, normal times tread unwarily into abnormality. That is why the touchstone of the basic structure has been inducted to discipline the exercise of even those special exercises of sovereign power such as the imposition of President's Rule and the like (see S.R. Bommai (1994) 3 SCC 1; …. The older view that the exercises of executive power are immune from judicial review has now correctly been abandoned (see Central for Civil Services Union v. Minister of Civil Service (1984) 3 All ER 935).

(h) Under the imperative agenda to promote the vested interests of the Market, under the direct and camouflaged directives of the trinity of the present-day global architecture (the IMF-World Bank-WTO), the Executive has forgotten the constitutionally mandated land reforms which could have ensured means of livelihood for the common Indians. The strategy of the Executive Government, in its most sinister form, is evident in 'agriculture'. Now under their mandate agriculture is being corporatized, agri-business under the corporate imperium is being promoted in most ruthless manner, seed sovereignty is gone, water is fast ceasing to be a human right, starvation deaths of the poor farmer have ceased to be of concern to the de luxe India of high net worth creatures with their heart abroad.

(iv). We need this Constitution as an impregnable dyke against their anti-people act. This was the reason why the Case of the Five Knights was rejected by the framers of the U.S Constitution .The Executive cannot bid farewell to the Welfare State. The reality which is being generated under the directives of the aforesaid trinity has been portrayed in a modern allegory:

"The Cloud Minders, episode 74 of the popular science fiction television series Star Trk, took place on the planet Ardan. First aired on Feb. 28, 1969, it depicted a planet whose rulers devoted their lives to the arts in a beautiful and peaceful city, Stratos, suspended high above the panet's desolate surface. Down below, the inhabitants of the planet's surface, the Troglytes, worked in misery and violence in the planet's mines to earn the interplanetary exchange credits used to import from other planets the luxuries the rulers enjoyed on Stratos."



Illustrating F W Maitland's view that " the only direct utility of legal history … lies in the lesson that each generation has an enormous power of shaping its own law" this pragmatic and functional approaches in the recent years in the U.K reveal themselves:

(a) in recognizing the federal principle evolved now in the British polity; and

(b) in the adoption to remove the 'democratic deficit' in the Treaty-Making Power.

The U.K. has now adopted a quasi-federal structure. Joanna Harrington [29] perceptively points out:

(a). "Like Canada, the UK has embraced the rule, long adopted by the Judicial Committee of the Privy Council in the Labour Conventions case, that while the national authority retains the power to make treaties, the power to implement treaties splits according to the division of powers between the national and regional authorities, such that treaties that fall within a provincial area of responsibility must be implemented by the enactment of provincial legislation. But the UK has also gone a step further than Canada in developing structures to address the "federalism deficit" that results from the lack of any obligation on the part of the national authority to consult with the provincial or regional body prior to making a treaty which may impact on areas of provincial or regional competence."

(b ) "…..the spirit of devolution has led to a change in the UK's treaty-making practice so as to provide for the involvement of the regional bodies where a treaty action might have implications for devolved areas of responsibility - a change that builds on the practice of consultation already in place with respect to any treaty making affecting the Channel Islands, the Isle of Man, or the Overseas Territories.."

(d) Joanna Harrington observes [30] :

"….In evaluating our current treaty-making process, it must not be forgotten that treaties are law—often permanent law—and as such, the law makers, be they ministers or officials, should be accountable to Parliament and the public that it serves…………

A final impetus for securing a greater role for the elected legislature in the making of treaties comes from the domestic courts. No longer is it "elementary", to use the words of Lord Denning, "that these courts take no notice of treaties as such ... until they are embodied in laws enacted by Parliament, and then only to the extent that Parliament tells us." Our common law courts are increasingly finding ways to give unincorporated treaties domestic legal significance, if not domestic effect, and for this reason too, I support a greater role for Parliament, whether federal, state, provincial or devolved, in the making of treaties. The resulting public record of Parliament's involvement prior to ratification could serve to either counterbalance the activism of the courts when Parliament is against giving domestic effect to a treaty, or bolster the decisions of the courts by providing evidence of Parliament's support for a treaty's provisions. In any event, a parliamentary role in treaty making is necessary to avoid engaging the nation in long standing legal commitments without public scrutiny and debate."

(e) How to remove the "democratic deficit" in the Treaty-Making process is considered crying for immediate remedy, and great steps have already been taken, and many more are being taken. In Britain, right from the days of the World War I, public agitation remained afoot for parliamentary sanction of treaties. Much headway was made in the matter with the framing of the Ponsonby Rule (1924) for placing treaties before Parliament for 21 sitting days. A Private Member Bill to 'subject treaty-making power' to the British Parliament's control led, since 1997, to set up a practice to provide detailed explanatory memorandum with the text of treaties placed before Parliament. The government is conceding the popular demand inch by inch. Now a Public Bill is before the U.K. Parliament: the U.K. draft Constitutional Renewal Bill [for text seehttp://www.publications.parliament.uk/pa/jt200708/jtselect/jtconren/166/166.pd]. The fundamental changes which the British people intend to bring about the Procedure of the U.K.'s Treaty-making practice are manifest from the provisions of the Constitutional Reform Bill [HL]2008-09, [31] and Constitutional Reform and Governance Bill2008-09. [32]


Azadi Bachao seems to be harbouring certain illusions though not clealy stated but impliedly assumed. There is no 'democratic deficit' or lack of Parliamentary control in view of:

(i) Cabinet accountability to Parliament, and

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

Both the so-called justifications are theoretical and unjustified. The reasons for thinking this way have been thus set forth by Prof Mani." [33]

: (i) "But 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. The termination or alteration, if not provided by the treaty, will have to be renegotiated and every renegotiation, if at all possible, will have its own special costs (political, economic or other) built into it. In the meantime, the country is expected to comply with the treaty obligations."

(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] Lord Denning observed in Laker Airways Ltd v. Department of Trade [1] :

"The prerogative is a discretionary power exercisable by the executive government for the public good, in certain spheres of governmental activity for which the law has made no provision, such as the war prerogative (of requisitioning property for the defence of the realm), or the treaty prerogative ( of making treaties with foreign powers). The law does not interfere with the proper exercise of the discretion by the executive in those situations; but it can set limits by defining the bounds of the activity; and it can intervene if the discretion is exercised improperly or mistakenly."

[2] O. Hood Phillips' Constitutional and Administrative Law 7th ed 371

[3] AIR 1937 PC 82

[4] AIR 1969 SC 783 (para 30 & 81)

[5] A.G. of Israel v. Kamiar ILR 44

[6] AIR 1964 SC 1043

[7] Gujrat v. Vora Fiddali (1964) AIR, SC 1043

[8] [1931] All ER Rep 666 H L

[9] O. Hood Phillips' Constitutional and Administrative Law 7th ed 371

[10] In the North Se Continental Shelf Case ICJ 1969, 3 at 222.

[11] J.G Starke's Introduction to International Law, 10th ed. P. 178

[12] "And since the states severally never possessed international powers, such powrs could not have been carved out from the mass of state powers but were transmitted to the U.S. from some other source. During the colonial period , those powers were possessed exclusively by and were entirely under the control of the Crown. ……."

[13] '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)

[14] [1994] 2 NZLR 257 at 260 and 270

[15] The Court observed:

"It follows that while Australia's ratification of [a] Convention does not go so far as to incorporate it into domestic law, it does have consequences for agencies of the executive government of the Commonwealth. It results in an expectation that those making administrative decisions in actions concerning children will take into account as a primary consideration the best interests of the children and that, if they intend not to do so, they will give the persons affected an opportunity to argue against such a course. ... The point is not that the delegate was obliged by the Convention to do so but that, had she done so, she might have been in a better position to meet the legitimate expectation to which the Convention gave rise."

[16] D.P.O'conell , International Law Vol 1 Chap 7

[17] The Fluid State. ed. George Williams & Hilary Charlesworth , p.36 [http://books.google.com]

[18] Minister for Immigration and Ethnic Affairs v. Teoh (1995)183 CLR 273

[19] Tavita v. Minister of Immigration [1994] 2 NZLR 257 suggesting that ratified but unincorporated treaty obligations are mandatory relevant considerations in statutory interpretation. Subsequent cases, however, suggesta less enthusiastic approach: see Puli'uvea v. Removal Review Authority (1996) 2 HRNZ 510

[20] Markus KRAJEWSKI explains how the DSB of the WTO impacts on our domestic law and institutions [Democratic Legitimacy and Constitutional Perspectives of WTO Law' Journal of World Trade 35(1): 167-186, 2001.© 2001 Kluwer Law International. Printed in The Netherlands]

:"This leads to the conclusion that WTO law and its application through the dispute settlement mechanism can have a similar impact on national law as EU law and its application through the European Court of Justice. Even if WTO law lacks the fundamental elements of supranational law, i.e. superiority and direct effect, it is functionally equivalent to supranational law. In political terms, WTO law-making emerges as a further layer of governance just like EU law-making arose as a second (and in federal systems a third) layer of governance in the EU member countries during the last

decades. Functional supranationality of WTO law and characterization as a further layer of governance requires WTO legitimacy to be questioned, not only from an international, but also from a national perspective. Questions about WTO legitimacy and about the EU are therefore similar, even if there are major differences between the two systems.20 If governance is shifting in the process of globalization from national to supranational levels, supranational governance must meet the standards of legitimacy according to national constitutional principles. Most importantly, supranational governance must meet the principle of democratic decision-making which is the most important one. There seems to be a growing understanding worldwide that a legitimate government must be based on democratic values. Some even argue that an international human right on democratic governance is emerging.21 If this is the case, WTO law needs to meet standards of democratic decision-making, not only from the national perspective but also from the perspective of international law."

[21] Sol Picciotto, in his 'The WTO's AppellateBody: Legal formalism as a legitimation

of Global Governance' discussed the profound impact of the DSB on the domestic segment in these words of sound perspicacity:

"The creation of the Appellate Body (AB) of the WTO entails an unprecedented delegation of power to an international adjudicator, since the WTO requires states to ensure compliance of their domestic regulations with the sweeping obligations in WTO agreements. This is legitimized in some academic analysis and much political rhetoric in terms of the rule of law, suggesting that the role of the adjudicator is merely to apply the precise words of the texts agreed by states, according to their natural meaning….."

[22] Paton at p. 292 of his Jurisprudence: "The normal divisions of public law are constitutional and administrative law. Constitutional law deals with the ultimate questions of the distribution of legal power and of the functions of the organs of the State. In a wide sense, it includes administrative law, but it is convenient to consider as a unit for many purposes the rules which determine the organization, powers, and duties of administrative authorities. Criminal law, the infliction of punishment directly by the organs of the State, is also usually regarded as falling under the head of public law. Some would say that civil procedure should also be placed in this section, since these rules regulate the activities of courts which are mere agencies of the State; but civil procedure is so linked with the enforcement of private rights that it is more convenient to regard it as belonging both to public and private law.

One of the most marked features of the present age is the growing importance of public law. Today one of the first points to be examined in any commercial enterprise is the incidence of taxation on various methods of controlling the industry. In a factory we must consider collective agreements as to wages, regulations as to lighting and safety precautions—there may even be an appeal to an industrial board against a dismissal by the master. Price control may affect the market. 'It is today impossible and misleading to study the functioning of the property norm in isolation from public law.' [G. Kahn-Freund, K. Renner's The Institutions of Private Law , 38]

[23] D. S. Nakara v. Union of India AIR 1983 SC 130

[24] Paschim Banga Khet Mazdoor Samity v. W.B. AIR 1996 SC 2426

[25] Hegde, Directive Principles in the Constitution of India ('the Rau Lectures') p. 49

[26] Hegde, Directive Principles in the Constitution of India ('the Rau Lectures') p. 49-50

[27] Jayantilal Amritlal v. F.N. Rana AIR 1964 SC 648

[28] At p. 140 of the Report

[29] http://www.ccil-ccdi.ca/index.php?option=com_content&task=view&id=81&Itemid=86

[30] "Redressing the Democratic Deficit in Treaty Law Making: (Re-)Establishing a Role for Parliament" http://lawjournal.mcgill.ca/documents/1225244248_Harrington.pdf

[31] Its Summary runs: To repeal the European Communities Act 1972 and the Human Rights Act 1998; to introduce binding referendum powers at national and local level; to require the approval of Parliament to enter into international treaties and to declare war; to make provision about the work of Parliament; to devolve legislative responsibility for certain policy areas to local authorities; and for connected purposes.

[32] Its Summary runs [Jack Straw, Ministry of Justice]: A Bill to make provision relating to the civil service of the State; to make provision relating to the ratification of treaties; to amend section 2 of the House of Lords Act 1999 and make provision relating to the removal, suspension and resignation of members of the House of Lords; to repeal sections 132 to 138 of the Serious Organised Crime and Police Act 2005 and to amend Part 2 of the Public Order Act 1986; to make provision relating to time limits for human rights claims against devolved administrations; to make provision relating to judges and similar office holders; to make provision relating to the Comptroller and Auditor General and to establish a body corporate called the National Audit Office; to amend the Government Resources and Accounts Act 2000 and to make corresponding provision in relation to Wales. [ http://services.parliament.uk/bills/2008-09/constitutionalreformandgovernance.html]

[33] 'Meeting treaty obligations' By V. S. Mani [http://www.hinduonnet.com/2000/08/28/stories/05282524.htm]

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