M.L. PENDSE, J.

By this petition filed under Article 226 of the Constitution of India, the petitioners are seeking a writ of mandamus restraining respondents from entering into final treaty relating to Dunkel Proposals without obtaining sanction of the Parliament and State Legislatures. The Dunkel Proposals emerged out of continued differences amongst foreign countries who had signed the General Agreement on Tariffs and Trade (GATT) and who met at the 8th round of Multilateral Trade Negotiations, known as Urugway Round in September, 1984. The General Agreement of Tariffs and Trade (GATT) is a treaty established in year 1947 and which contains the rules for governing international trade. India has been member of GATT from the very inception and currently, there are 117 members of GATT treaty. Two important principles of GATT are the most favoured nation and the national treatment. The former implies that the treaty members may not discriminate against the other members of the treaty in the matters of applying the provisions of the treaty. The National treatment implies that any discrimination against foreign products has to be made at the national borders and once foreign goods have crossed the national border, they are required to be treated equally with domestically produced goods. The member nations held periodical negotiations to reduce tariff and non-tariff barriers in international trade. The Urugway Round negotiations which were concluded in December, 1993 dealt with not only trade in goods but also trade in services and intellectual property rights. India accepted the agenda of the negotiations and had participated in negotiations from time to time. The results of the negotiations concluded in December, 1993 have been communicated to various countries and the treaty is likely to come into force in July, 1995 based on the conclusions reached. The treaty is going to be a new treaty and not a successor to GATT.

2.Shri Bobde, learned Counsel appearing on behalf of the petititoners, submitted that Article 73 of the Constitution of India sets out the extent of executive power of the Union. The learned Counsel urged that the executive power of the Union extends to matters with respect to which Parliament has power to make laws. The learned Counsel did not dispute that the powers will extend to the subjects which are covered by Union list as well as the concurrent list. The learned counsel urged with reference to the proviso to Article 73(1) that the executive power cannot extend to any matters with regard to which the legislature of the State has power to make laws. The proviso to Article 73(1) reads as under :

"Provided that the executive power referred to in sub-clause (a) shall not, save as expressly provided in this Constitution or in any law made by Parliament, extend in any State to matters with respect to which the legislature of the State has also power to make laws."

Shri Bobde submitted that Entry 14 in Union List reads as under :

"Entering into treaties and agreements with foreign countries and implementing of treaties, agreements and conventions with foreign countries."

It was contended that it is not open in exercise of executive powers under Article 73 of the Constitution of India to enter into any treaty or agreement with foreign countries in respect of matters which are covered by the State list. The learned Counsel urged that Dunkel Proposals deal with subjects which are exclusively in the State list and, therefore, it is not permissible for the Central Government to exercise executive powers to enter into treaty with foreign countries. Shri Bobde submitted that Dunkel Proposals will affect the agricultural products, the irrigation facilities, raw cotton (procurement, processing and marketing) and provisions enacted in these regard by the State Legislature. The Dunkel Proposals, says the learned Counsel, will also affect the State subjects in regard to maintenance of roads, bridges, communications, etc. It was urged that Items Nos. 13, 14 & 17 cover the subjects which would be adversely affected by the Central Government entering into treaty or agreement in exercise of executive powers.

Shri Dada, learned Counsel appearing on behalf of Central Government and Shri Sawant, learned Counsel appearing on behalf of State Government, controverted the contention by reference to the provisions of section 253 of the Constitution of India. It was contended that the executive power conferred under Article 73 of the Constitution of India is to be read along with powers conferred by Article 253 of the Constitution of India. Article 253 of the Constitution of India reads as follows :-

"Legislation for giving effect to international agreements - Notwithstanding anything in the foregoing provisions of this Chapter, Parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body."

Shri Dada placed strong reliance upon the decision of Supreme Court reported in A.I.R. 1969 Supreme Court 783 (Maganbhai Ishwarbhai Patel v. Union of India and another), in support of the contention that executive power of entering into any treaty or agreement with foreign countries is not limited only to subjects covered by Union and Concurrent list, but can take in its sweep subjects in State list. We find considerable merit in the submission urged on behalf of the respondents.

3.It is undboutedly true that the executive power of the Central Government flows from the provisions of Article 73 of the Constitution of India. It is equally true that the proviso sets out that the executive power shall not, save as expressly provided in this Constitution or in any law made by Parliament, extend in any State to matters with regard to which the Legislature of the State has power to make laws. The effect of an international treaty on the rights of citizens of the States concerned in the agreement is set out in Oppenheims International Law and Wade and Phillips Constitutional Law. The following passages are quoted with approval by the Supreme Court in the case of Maganbhai Ishwarbhai Patel :

"Such treaties as affect private rights and, generally, as required for their enforcement by English courts a modification of common law or of a statute must receive Parliamentary assent through an enabling Act of Parliament. To that extent binding treaties which are part of International Law do not form part of the law of the land unless expressly made so by the legislature."

"The binding force of a treaty concerns in principle the contracting States only, and not their subjects. As International Law is primarily a law between States only and exclusively, treaties can normally have effect upon States only. This rule can, as has been pointed out by the Permanent Court of International Justice, be altered by the express or implied terms of the treaty, in which case its provisions become self-executory. Otherwise, if treaties contain provisions with regard to rights and duties of the subjects of the contracting States, their courts, Officials, and the like, these States must take steps as are necessary according to their Municipal Law, to make these provisions binding upon their subjects, courts, officials, and the like."

"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 land, 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 page 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."

4.Mr. Justice Shah, as he then was, while concurring with the majority judgment delivered by Chief Justice Hidayatullah referred to the decision of Judicial Committee reported in A.I.R. 1937 Privy Council 82 and the observations made therein. The Privy Council held :

"It will be essential to keep in mind the distinction between (1) the formation, and (2) the performance, of the obligations constituted by a treaty, using that word as comp-rising any agreement between two or more sovereign States. Within the British Empire there is a well-established rule that the making of a treaty is an executive act, while the performance of its obligations, if they entail alteration of the existing domestic law, requires legislative action. 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. Parliament, no doubt, 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."

The learned Judge then examined the effect of Article 253 of the Constitution of India and observed :

"The effect of Article 253 is that if a treaty, agreement or convention with a foreign State deals with a subject within the competence of the State Legislature, the Parliament alone has, notwithstanding Article 246(3), the power to make laws to implement the treaty, agreement or convention or any decision made at any international conference, association or other body. In terms, the Article deals with legislative power, thereby power is conferred upon the Parliament which it may not otherwise possess. But it does not seek to circumscribe the extent of the power conferred by Article 73. If, in consequence of the exercise of executive power, rights of the citizens or others are restricted or infringed, or laws are modified, the exercise of power must be supported by legislation : where there is no such restriction, infringement of the right or modification of the laws, the executive is competent to exercise the power." (Underline supplied)

The observations made by the learned Judge establish that the executive power conferred under Article 73 is to be read along with the power conferred under Article 253 of the Constitution of India. The observations leave no manner of doubt that in case the Government enters into treaty or agreement, then in respect of implementation thereof, it is open for the Parliament to pass a law which deals with the matters which are in the State list. In case the Parliament is entitled to pass laws in respect of matters the State list in pursuance of the treaty or the agreement, then it is difficult to appreciate how it can be held that the Central Government is not entitled to enter into treaty or agreement which affects the matters included in the State list. The reliance by Shri Dada on the observations of the Supreme Court in the decision reported in A.I.R. 1960 Supreme Court 845 (Reference by The President of India under Article 143(1) of the Constitution of India on the implementation of Indo-Pakistan Agreement relating to Berubari Union and Exchange of Enclaves) in this connection is appropriate. Mr. Justice Gajendragadkar, as he then was, observed in paragraph 31 of the judgment :

"This power, it may be added, is of course subject to the limitations which the Constitution of the state may either expressly or by necessary implication impose in that behalf; in other words, the question as to how treaties can be made by a sovereign state in regard to a cession of national territory and how treaties when made can be implemented would be governed by the provisions in the Constitution of the country. Stated broadly the treaty-making power would have to be exercised in the manner contemplated by the Constitution and subject to the limitations imposed by it. Whether the treaty made can be implemented by ordinary legislation or by constitutional amendment will naturally depend on the provisions of the Constitution itself. We must, therefore, now turn to that aspect of the problem and consider the position under our Constitution."

5.Shri Bobde contended that the decisions of the Supreme Court relied upon by the respondents examined the scope of Articles 73 and 253 of the Constitution of India in absence of the issue as to whether the treaty or the agreement impeaches upon the matter which is exclusively in the State list. It was urged that the decision of the Supreme Court should be limited only to those cases where the treaty or the agreement covers matters which are either in the Union List or the concurrent list. Shri Bobde submitted that it is not permissible to expand the ambit of Article 73 by reference to Article 253 of the Constitution of India. In our judgment, it is not possible to read the decision of the Supreme Court in the manner suggested by the learned Counsel. It is difficult to accede to the contention that though the Parliament has power to enact laws in respect of matters covered by the State list in pursuance of treaty or the agreement entered into with foreign countries, the executive power cannot be exercised by entering into treaty as it is likely to affect the matters in the State list.

Shri Dada submitted that the treaty is not a self-executive treaty and the provisions of the treaty will be given effect to by passing requisite laws. Shir Dada further pointed out that the concluded negotiations at Urugway Round have already been circulated to all the members of the Parliament and to all the Chief Ministers and discussion had already taken place in the Rajya Sabha and the Loksabha. Shri Dada submitted and, in our judgment, with considerable merit that the issue as to whether the Government should enter into treaty or agreement is a policy decision and it is not appropriate for the courts in exercise of jurisdiction under Article 226 of the Constitution of India to disturb such decisions. In our judgment, the petitioners are not entitled to any relief and the petition must fail.

6.Accordingly, petition is summarily rejected.