Treaty making in India

♤ Under the Indian Constitution, the power to enter into treaties figures in the Union List that covers areas on which Parliament has the exclusive right to legislate (Article 246), while Article 73 extends the executive power of the Centre to all matters on which Parliament can legislate.

♤ For implementing any treaty, Parliament under Article 253 can legislate on any item even under the State List.

♤ But in the absence of a specific provision stipulating the procedure for the negotiation and ratification of treaties, the exercise of this power has by and large remained a preserve of the executive, which has tended to interpret Article 73 to mean that its authority extends over the subjects included in the Union List.

♤ On the contrary, the judiciary has through several pronouncements emphasized that the power to enter into a treaty is essentially political in nature and therefore called for the enactment of a separate legislation to govern the conclusion of treaties.

♤ The National Commission to Review the Working of the Constitution has voiced a similar view and recommended that Parliament pass a law to regulate the treaty- making power of the government, but it stopped short of prescribing parliamentary ratification.

♤ Any process of ratification of international obligations by national parliaments will necessarily be protracted in view of conflicting perceptions and interests and various other factors such as the level of development of institutional mechanisms relative to the maturity of democracy. Yet, the requirement of ratification by Parliament will ensure that international agreements and treaties with far reaching implications are subjected to a closer legislative scrutiny and a wider political and public discussion.

The exercise of the power of treaty making cannot be absolute or unchartered in view of the federal structure of legislative and executive powers. So Parliament should make a law on the subject of treaty making and implement it through Parliamentary legislation to streamline the procedures involved.

This has been recommended by both Venkatachalliah commission and Punchhi commission. Punchhi commission also recommends that financial obligations and its implications on state finances arising out of treaties and agreements should be a permanent term of reference to the finance commission.

Treaties which affect the rights and obligations of citizens as well as those which directly impinge on subjects in State List should be negotiated with greater involvement of States and representatives in Parliament.