( ISSN 2277 - 9809 (online) ISSN 2348 - 9359 (Print) ) New DOI : 10.32804/IRJMSH

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DOMESTIC APPLICATION OF INTERNATIONAL HUMAN RIGHTS LAW IN INDIA

    1 Author(s):  RANJANA RANI

Vol -  8, Issue- 1 ,         Page(s) : 446 - 451  (2017 ) DOI : https://doi.org/10.32804/IRJMSH

Abstract

A “treaty” to be valid and binding must first be entered into by an organ of a State that has requisite capacity or source of power to that effect either under its Constitution or a Statute.1 Once this requirement is fulfilled, a State assumes obligations under the treaty and is accountable for its implementation. The obligations are cast on State. The term State includes all organs functioning under the State including Parliament, Executive and Judiciary. Thus the obligation “to respect”, “to give effect”, “to ensure” human rights enshrined under the international human rights treaties are cast not only on Executive or Government that ratified such treaties but on all organs of State.2 It is not in dispute that Union Executive in India has power to enter into international treaties by virtue of the power conferred on it under Article 73 of the Constitution. Once the treaty is entered into by the Union Executive, the obligation to implement the treaty is cast on the three organs of the State- Executive, Parliament and Judiciary.

1. At the time of formation of an international treaty, the representative of a State has to produce an instrument of “authority” possessing power or authority to conclude treaty on behalf of the State concerned. This instrument of authority is called “Full Powers”. Article 7(1) of Vienna Convention on the Law of Treaties, 1969, deals with “Full Powers” that reads as: “A person is considered as representing a State for the purpose of adopting or authenticating the text of a treaty or for the purpose of expressing the consent of the State to be bound by a treaty if; (a) he produces appropriate full powers; or (b) it appears from the practice of the State concerned or from other circumstances that their intention was to consider that person as representing the State for such purposes and to dispense with full powers”. 
2. Nihal Jayawickrama, “The Judicial Application of Human Rights Law- National, Regional and International Jurisprudence”, Cambridge University Press, Cambridge, 2002, p.96-97. 
3. Similarly, Entry 13 of List-I in the VII Schedule deals with “Participation in international conferences, associations and other bodies and implementing of decisions made thereat”. Equally important is Entry 10 of List-I in the VII Schedule dealing with “Foreign affairs; all matters which bring the Union into relation with foreign country”. 
4. Article 73 reads as; Extent of executive power of the Union- (1) Subject to the provisions of this Constitution, the executive power of the Union shall extend - (a) to the matters with respect to which Parliament has power to make laws, and (b) to the exercise of such rights, authority and jurisdiction as are exercisable by the Government of India by virtue of any treaty or agreement: 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. 
5. Articles 15 and 16 of the Constitution apply only to citizens and State can discriminate citizens on grounds other than the grounds mentioned under them. In effect, there is no prohibition on Sate to make discrimination against non-citizens on any grounds including the grounds mentioned under Article 15 and 16. 
6. “Separation of Power Doctrine and Executive Power to Implement Treaties” In Indian Constitution.
7. Article 253 reads as: 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. 
8. AIR 1960 SC 845. 
9. The above contention was made by the Attorney General of India while relying on the observation of the Supreme Court in Rai Sahib Ram Jawaya Kapur & Ors. v. The State of Punjab (AIR 1954 SC 549). In Rai Sahib case, while dealing with the question about the limits within which the executive Government can function under the Indian Constitution, Chief Justice Mukherjea, who delivered the unanimous decision of the Court, has observed that “the said limits can be ascertained without much difficulty by reference to the form of executive which our Constitution has set up, that the executive function comprised both the determination of the policy as well as carrying it into execution. 
10. Article 123 reads as: Power of President to promulgate Ordinances during recess of Parliament(1) If at any time, except when both Houses of Parliament are in session, the President is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such Ordinance as the circumstances appear to him to require. (2) An Ordinance promulgated under this article shall have the same force and effect as an Act of Parliament, but every such Ordinance-(a) shall be laid before both House of Parliament and shall cease to operate at the expiration of six weeks from the reassemble of Parliament, or, if before the expiration of that period resolutions disapproving it are passed by both Houses, upon the passing of the second of those resolutions; and (b) may be withdrawn at any time by the President. Explanation.- Where the Houses of Parliament are summoned to reassemble on different dates, the period of six weeks shall be reckoned from the later of those dates for the purposes of this clause. (3) If and so far as an Ordinance under this article makes any provision which Parliament would not under this Constitution be competent to enact, it shall be void. 
11. Article 72 reads as: Power of President to grant pardons, etc., and to suspend, remit or commute sentences in certain cases- (1) The President shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence- (a) in all cases where the punishment or sentence is by a court Martial; (b) in all cases where the punishment or sentence is for an offence against any law relating to a matter to which the executive power of the Union extends; (c) in all cases where the sentence is a sentence of death. (2) Noting in sub-clause (a) of Clause (1) shall affect the power to suspend, remit or commute a sentence of death exercisable by the Governor of a State under any law for the time being in force. 
12. Article 245 reads as: Extent of laws made by Parliament and by the Legislatures of States- (1) Subject to the provisions of this Constitution, Parliament may make laws for the whole or any part of the territory of India, and the Legislature of a State may make laws for the whole or any part of the State. (2) No law made by Parliament shall be deemed to be invalid on the ground that it would have extra-territorial operation. 
13. Article 79 reads as: Constitution of Parliament- There shall be a Parliament for the Union which shall consist of the President and two Houses to be known respectively as the Council of States and the House of People. 
14. Sahib Ram Jawaya Kapur & Ors. v. The State of Punjab, AIR 1954 SC 549. 

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