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TMI Blog1982 (1) TMI 213X X X X Extracts X X X X X X X X Extracts X X X X ..... India and to play cricket matches, despite their links with South Africa which is practising policy of apart held became the subject matter of controversy both in India and outside. However, the Government of India allowed that English cricket team including those two players to come to the country and to play matches as scheduled. 3. The Civil Rights Committee presented the writ petition (out of which this appeal has arisen) impugning the action of the Government of India in allowing the English Cricket team including those two players to visit India and to play matches. The learned single Judge, who heard that writ petition, dismissed it holding, inter alia, that such impugned action of the Government of India being an act of State, this court had no jurisdiction to examine its validity and to grant the relief sought in the writ petition. 4. In this appeal, Shri Ravivarma Kumar, learned counsel for the appellant-petitioner (the Civil Rights Committee) who assailed the order of the learned single Judge, put forth the case of the appellant-petitioner thus : Sub-section 91) of Section 3 of the Foreigners Act 1946 (hereinafter referred to as 'the Act') empowers the Cen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orts events in South Africa between the 1st December, 1980, and the 31st March, 1981. When the Gleneagles Accord reaffirmed the full support of the member-countries of the Common-wealth for the international campaign against apartheid and welcomed the efforts of the United Nations to reach universally accepted approaches to the question of sporting contacts with South Africa within the framework of that campaign , the Government of India being one of such member-countries, was under an obligation not to allow Boycott and Cook who had sporting contacts with South Africa, to come to India as members of the English cricket team and to play cricket matches in this country. The Government of India should have prevented the entry of those two players into this country by invoking its authority under para-2 of the Exemption Order. 6. Shri Ravivarma Kumar having so put forth the case of the Civil Rights Committee, contended that the action of the Government of India in permitting these two cricket players (who had been blacklisted by the United Nations) to enter into India and to play cricket in this Country was in breach of its (this country's) obligations under the Gleneagles Acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he governance of the country and it shall be the duty of the State to apply these principles in making laws, states that the provisions in that part shall not be enforceable by any court. From this it follows that the provision in Article 51 is not enforceable by any court and if parliament does not enact any law for implementing the obligations under a treaty entered into by the Govt. of India with foreign countries. courts cannot compel Parliament to make such law. In the absence of such law, court cannot also, in our view enforce obedience of the Government of India to its treaty obligations with foreign countries. 11. However, Shri Ravivarma Kumar contended that any treaty entered into by the Government of India with a foreign country, forms part of the Municipal law of India unless rights and obligations under such treaty even in the absence of any legislation incorporating in the domestic law, the terms of such treaty. He sought to derive sustenance of this Constitution which provides that subject to the provisions of the Constitution, all the laws in force in the territory of India immediately before the commencement of the Constitution shall continue to be in force there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law is enforced. There are, broadly, two different methods by which precepts of international law are applied in the domestic courts of a State. By the first method it is accepted that international law is per se a part of the law of the land and that the domestic court therefore, in an appropriate case, applied international law, directly. According to the second method a domestic court can only apply and enforce its own internal law, and the international law rule is binding only on the State itself, which must by legislation transform the precept into one of domestic law. The first method is employed in those countries (e.g. the Republic of Ireland, France and the German Federal Republic) where it is by the constitution provided that international law is part of the law of the land. The position before English Courts is something of a compromise between the two methods. There can be no doubt that they regard customary international law as part of the law of the land, for they take judicial notice of it; that is to say they assume that the court knows the law and does not require it to be proved by calling expert evidence, as in cases involving foreign and external system ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich bind English courts are those which fix the boundaries of executive action ..... . 16. The above excerpts from the authoritative texts put it beyond doubt that in England, while it is possible to regard customary international law as part of English law, a similar principle does not apply to treaties or the obligations created thereunder. hence, the contention of Shri Ravivarma Kumar that a treaty like the Gleneagles Accord could have been a part of the municipal law of England and English Courts would have enforced such treaties as binding on the United Kingdom internally, cannot be accepted as correct. Consequently, the need to consider his other contention regarding application of such principle in India in view of Article 372(1) of the Constitution, does not arise. 17. We shall now turn to decisions of Courts in India, which directly bear on the matter and negative the contention of Shri Ravivarma Kumar. In Birma v State a Division Bench of the Rajasthan High Court, while considering the question as to whether a treaty between the British Government and the princely State of Dholapur, which was not given effect to by means of a legislative enactment, could be rega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judicial authority...... . In Jolly George Varghese v Bank of Cochin [1980]2SCR913 , while dealing with the effect of international law and the enforceability of such law at the instance of individuals within the State (this country), the Supreme Court having quoted with approval the above observations of the Kerala High Court, has enunciated the law on the point thus : The positive commitment of the States parties ignites legislative action at home but does not automatically make the covenant an enforceable part of the corpus juris of India. 18. We are, therefore, of the opinion that the Government of India's obligations under the Gleneagles Accord and obligations attached to its membership of United Nations, cannot be enforced at the instance of citizens of this country or associations of such citizens of this country or associations of such citizens, by courts in India, unless such obligations are made part of the law of this country by means of appropriate legislation. 19. In the result, we do not admit this appeal, but dismiss it, though on a ground different from the one on which the learned single Judge rested his decision. After, we pronounced the a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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