P B SAMANT Vs. UNION OF INDIA

JUDGEMENT

(1.) 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 :

(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 :