The Dual Life of Treaties: Understanding Their Enforcement in Indian Law

Deciphering Legal Judgments: A Comprehensive Analysis of Case Law

Reported as:

2023 (10) TMI 981 - Supreme Court

The legal issue at hand pertains to the treaty-making powers in India, their constitutional basis, and the process through which treaties become enforceable in Indian law. Let's analyze the key issues, submissions, court discussions, findings, and implications based on the provided text.

Revenue's Core Contentions:

1. Constitutional Basis for Treaty Legislation: The ASG emphasizes that under Articles 253 and related entries of the Indian Constitution, Parliament holds exclusive power to legislate on treaties. This legislative requirement underscores the principle that treaties do not automatically become enforceable in domestic law.

2. The Dualist Approach: The ASG argues that India follows a dualist system, distinguishing between international and domestic legal obligations. Ratified treaties require enabling domestic legislation to be enforceable within India, in contrast to monist systems where treaties automatically become part of domestic law.

3. Case Law Reference: The ASG cites GRAMOPHONE CO. OF INDIA Versus BIRENDRA BAHADUR PANDEY - 1984 (2) TMI 348 - Supreme Court and UNION OF INDIA AND ANOTHER VERSUS AZADI BACHAO ANDOLAN AND ANOTHER [2003 (10) TMI 5 - SUPREME COURT] to support the contention that treaties, without domestic legislation, cannot create or alter rights and obligations within India's legal framework.

4. Role of Section 90: The ASG highlights the importance of Section 90 in the context of treaties, arguing that notification under this section is essential to give effect to treaty provisions in domestic tax law.

5. Treaty Practice and OECD Membership: The ASG refers to the treaty practices with France, Netherlands, and Switzerland, noting that OECD membership does not automatically grant treaty benefits. This is evidenced by subsequent protocols and notifications with specific countries.

6. Verification by Tax Authorities: Without clear notifications under Section 90, tax authorities would face difficulties in verifying treaty-based claims, emphasizing the need for clear legislative action.

7. Executive Orders and Decrees: The ASG argues against relying on unilateral executive orders or decrees from other countries as binding on Indian authorities, emphasizing the necessity of domestic legal processes.

8. Potential Consequences of the Impugned Judgment: The ASG expresses concern that the current interpretation could bypass the need to assess whether international instruments have been integrated into Indian law as per Section 90.

9. Literal and Contextual Interpretation of Treaties: Referring to Ram Jethmalani v. Union of India, the ASG suggests that treaties should be interpreted based on the ordinary meaning of words and context, ensuring no part of the treaty becomes redundant.

10. Notifications and Amending Existing DTAAs: The ASG points out that notifications often follow negotiations and are specific in their application, arguing against the automatic extension of benefits to other countries based on OECD membership.

Implications of the Revenue's Argument:

• Legislative Primacy in Treaty Enforcement: This argument reinforces the necessity of legislative action for treaties to have domestic legal effects, upholding the constitutional framework.
• Clarity and Certainty in Tax Law: Emphasizes the need for clear legislative guidelines for tax authorities, ensuring consistent application of international treaties.
• The Sovereignty of Domestic Legal Processes: Highlights the importance of domestic legal procedures and the role of Indian authorities in implementing international treaties.
• Interpretational Guidelines for Treaties: Advocates for a literal and contextual approach to treaty interpretation, avoiding redundancy and ensuring alignment with constitutional principles.

The Revenue’s contentions presented by the ASG essentially underline the need for a robust and clear domestic legislative process to implement international treaties, particularly in the context of tax law and India's dualist approach to international law.

Key Issues

1. Constitutional Basis for Treaty Making: The role of Article 253 and Article 73 of the Indian Constitution in treaty making.
2. Executive Power vs. Legislative Action: The extent of the Union executive's power in treaty making and the necessity of legislative action for enforcement.
3. Enforceability of Treaties in Domestic Law: Whether and how international treaties become enforceable within India.

Court Discussions

1. Article 253 and Union List: Treaty making is an exclusive power of the Union, based on Article 253 and related entries in the Union List.
2. Duncan B. Hollis's View: The dual nature of treaties, functioning differently in international and domestic spheres.
3. Case Law on Executive and Legislative Roles:
   • State of West Bengal Versus Jugal Kishore More and Ors. - 1969 (1) TMI 86 - Supreme Court and State Of Gujarat Versus Vora Fiddali Badruddin Mithibarwala - 1964 (1) TMI 63 - Supreme Court: Emphasize that treaties need legislative action to affect domestic law.
   • V.O. Tractoroexport, Moscow Versus Tarapore & Company and Ors. - 1969 (10) TMI 96 - Supreme Court: Treaties require domestic legislation for enforceability; courts interpret domestic laws, not treaties, unless there's ambiguity.
   • MAGANBHAI ISHWARBHAI PATEL Versus UNION OF INDIA AND ANR. - 1969 (1) TMI 71 - Supreme Court.: Differentiates between the formation and performance of treaty obligations, emphasizing the need for legislative action.

Court's Findings

1. Exclusive Union Power: The Union exclusively holds the power to enter into treaties.
2. Legislative Action Requirement: Treaties do not automatically have domestic force; legislative action is required, especially if they affect citizens' rights or domestic laws.
3. Parliament's Role: Parliament can refuse to enact legislation for treaties, which may leave the Union in default internationally.
4. Interpreting Ambiguities: In case of ambiguity in domestic law implementing a treaty, courts can refer to the treaty for clarity.

Conclusion and Implications

1. Treaties Not Self-Enforcing: Treaties do not automatically become part of domestic law upon ratification.
2. Legislative Enactment Necessary: For a treaty to have domestic effect, especially if it affects rights or alters existing laws, legislative enactment is required.
3. Section 90 of the Income Tax Act: Illustrates the process of treaty implementation into domestic law, where treaties can override domestic law to the extent of inconsistency.
4. Executive vs. Legislative Powers: Highlights the division of powers, where the executive can negotiate and enter into treaties, but legislative action is necessary for domestic implementation and enforcement.

Impact

This legal framework ensures that international treaties are harmonized with domestic law through a democratic process, safeguarding national sovereignty and legislative supremacy. It also implies a careful balance between international obligations and domestic legal procedures, requiring coordination between the executive and legislative branches.

Full Text:

2023 (10) TMI 981 - Supreme Court