1. This appeal is from the order of Bopanna, J., dismissing writ petition No.25534 of 1981. The petitioner therein, namely, Civil Rights Vigilance Committee, has presented this appeal and for the sake of convenience, it will herein after be referred to as 'the' Civil Rights Committee'.
2. The material facts, leading up to this appeal, are briefly these : Geof Boycott and Geof Cook are two cricket players who are citizens of the United Kingdom. Marylbourne Cricket Club (M.C.C.) included them in its team scheduled to visit India between November 1941 and February 1982 to play six test matches and other matches at different places in India. As to whether the Government of India should allow that English Cricket Team which included Boycott and Cook to visit 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 Central Government, by order, to make provision either generally or with respect to all foreigners or with respect to any particular foreigner or any prescribed class of description of foreigner, for prohibiting, regulating or restricting the entry of foreigners into India or their departure therefrom or their presence or continued presence therein. But Section 3-A empowers the Central Government by order, to declare that all or any of the provisions of the Act or any order made thereunder, shall not apply or shall apply only in such circumstances or with such exemptions or modifications or subject to such conditions specified in the order, or in relation to 9a) a citizen of any such Commonwealth country as may be so specified; or (b) any other individual foreigner or class or description of foreigners. In exercise of the powers so conferred by Section 3-A of the Act, the Central Government made the Foreigners (Exemption) order, 1957 (hereinafter referred to as 'the Exemption Order'). Para-2 of that order declares that except as otherwise provided in para-3 thereof, the provisions of the Act shall not apply to or in respect of any citizen of the United Kingdom. Material portion of that para reads :
'If the Central Government is satisfied with respect to any citizen of any of the countries mentioned in para 2. It is necessary so to do :-
(a) ............ ............. ............. ............ ...........
(b) in the interests of friendly relations with any country outside India;
(c) ........... ........... ............ .......... ..............
it may notwithstanding anything contained in paragraph-2 make with respect to such citizen any such order under Section 3 of the Act aforesaid as it thinks fit'.
5. The Government of India was a party to the Gleneagles Accord of June 12, 1977, entered into by the member countries of the Commonwealth, wherein they reaffirmed their full support 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. Boycott and Cook, as seen from the booklet issued in May 1981 by the United Nations under the title 'Centre against the Apartheid', were among the sportsmen blacklisted by the United Nations for having participated in sports 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 compaign, 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 Accord and the obligations attached to its (this country's) membership of the United Nations. He maintained that such action of the Government of India was also detrimental to friendly relations with other countries especially Afro-Asian countries. It was this contention that as the Government of India failed to fulfill its obligations attached to its (India's) membership of the Untied Nations, this court, in exercise of its jurisdiction under Article 226 of the Constitution, should issue a mandamus directing the Government of India to act according to such obligation and to exercise its power under Section 3 of the Act to prohibit the entry of Boycott and Cook into this country or to order them to leave this country, if they have already entered.
7. The contention of Shri Ravivarma Kumar calls for determination, the following question :
Whether the obligations of the Government of India under the Gleneagles Accord and obligations attached to its (India's) membership of the United Nations, can be enforced against it (the Government of India) by Courts of this Country at the instance of any of its citizens or association of citizens?
8. As, according to Shri Ravivarma Kumar, the obligations of the Government of India under the Gleneagles Accord and the obligations attached to its (India's) membership of the United Nations are obligations of the Government of India under treaties entered into by it with foreign countries which could be enforced by Courts in India. We propose to examine the matter first, in the light of the provisions of the Constitution of India.
9. Articles 245(1) read with Entry 14 in List-I of Schedule-VII to the Constitution and Article 253 empower the Parliament to make laws for implementing treaties entered into by the Government of India with foreign countries. (See : Reference by the President of India under Article 143(1) of the Constitution : 3SCR250 .
10. The provisions in Part-IV of the Constitution contain the directive principles of State policy. The provision in Article 51, occurring in that part, provides, inter alia, that the State shall endeavour to foster respect for inter-national law and treaty obligations in dealings of organised peoples with one another. The provision in Article 37 occuring in the same part, though it declares that the directive principles in part-IV are fundamental in the 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 therein until altered, repealed or amended by a competent legislature or other competent legislature or other competent authority. According to him, as under the common law rule in England, international treaties entered into by that country with other countries, become enforceable as part of its Municipal law unless such treaty obligations conflict with its own statute law or principles of, common law and that further as the common law of England was applicable in India before the coming into force of the Constitution, international treaties entered into by this country with foreign countries are to be regarded as part of the Municipal law of this country and enforced by Courts of this country as was done by courts in England.
12. If we agree with the contention of Shri Ravivarma Kumar that in England, a treaty to which that country was a party, became a part of municipal law of that country, his further contention as to the applicability of such principle in India in view of Article 372(1) of the Constitution, would arise, on the other hand, if we do not agree with his contention that even in England, the principle governing the applicability of the customary international law, does not apply to a treaty or treaty rules or treaty obligations, the need to consider his latter contention does not arise. Hence here, we propose to consider the sustainability of his former contention.
13. In Encyclopaedia Britannica (Vol.12) at pages 424 and 425, under the heading 'Relationship with the Internal law of States', it is stated thus :
'Relationship with the Internal law of States :
To understand international law it is necessary to appreciate its close relationship to the internal law of states, or as lawyers say, the municipal laws of states, for it is increasingly penetrating that sphere. Even traditional international law, at a time when it was supposed to be a law only between states, had many rules which required the 'the co-operation of municipal courts for their realisation; for example the rules whereby foreign sovereigns and their diplomatic representatives enjoy certain immunities from the municipal jurisdiction. But a very large part of modern international law is directly concerned with the activities of individuals which come before municipal courts. So that it is in the municipal courts that a large and increasing part of international 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 sec 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 systems of law. The courts regard any relevant rule of customary international law as being incorporated into the domestic law.
............. ........... ............ ............. ............ ............. ..............
A treaty, however, even though binding upon the United Kingdom internationally, will not be applied as such by the Courts. If the implementation of the treaty requires a change in the law it is for Parliament to make that change by statute. The reason for this rule is said to be that, since a treaty-making power is a prerogative power, it would, if the treaty were binding directly on the courts, amount to a power to legislative without Parliament.
............. ........... ............ ............. ............ ............. ..............'
14. In the text book of international law by D.W. Greig (second edition) at page 60, referring to treaty rules and their relation to English law, it is stated thus :
'While it is possible to regard customary international law as part of English law, a similar principle does not apply to treaty rules. Although a treaty duly ratified by the Crown will be binding under international law, if the treaty is to have internal effect in the sense of changing legal rights, it will require, enabling legislation by Parliament'.
15. In International law by D.P.O. Connel (Vol.1) at page 60, dealing with the subject of relationship between internal law and treaty operation under the common law of England, it is stated thus :
'The rule that treaties do not directly affect the Crown's subjects goes back to the seventeenth century and has an historical and not an ideological explanation. Matters of State connected with foreign policy were within the province of the Council, not of Parliament, and the asserted incapacity of the Executive to legislate for its subjects by treaty was a manifestation of the constitutional struggle concerning the prerogative. The outcome of the struggle led to a partition of jurisdiction in the spheres of customary and conventional international law. The enforcement of diplomatic privilege which was virtually the only customary international law that affected the subject of the Crown, was transferred from the prerogative function, but the exercise of this function had no effect internally save through the intervention of Parliament. Therefore, the only treaties which 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 regarded as part of the Municipal law of the then Dholapur State, observed thus :
' ............ Treaties which are part of the international law do not form part of the law of the land unless expressly made so by the legislative authority. In the present case the treaty remained a treaty only and no action was taken to incorporate it into a law. That treaty cannot, therefore, be regarded as a apart of the Municipal law of the then Dholapur State and the practice of surrendering fugitive criminals, which was being followed by the former Dholapur State cannot be deemed to be a law that could be continued under Art. 372 of the Constitution of India ........'.
In Xavier v Canara bank Ltd (1969 Ker LT 927) decided arose as to whether Article 11 of the International Covenants on Civil and Political Rights adopted by the General Assembly of the United Nations on the 16th December 1965, to wit, that no one shall be imprisoned merely on the ground of inability to fulfil a contractual obligation, became part of the Municipal law of this country as would give right to a remedial action at the instance of an aggrieved individual of this country. In dealing with that question, that court observed thus :
' .................. The remedy for breaches of International law in general is not to be found in the law courts of the State because International Law per se or proprio vigore has not the force or authority of civil law, till under its inspirational impact actual legislation is undertaken. I agree that the Declaration of Human Right merely sets a common standard of achievement for all peoples and all nations but cannot create binding set of rules. Member States may seek through appropriate agencies, to initiate action when these basic rights are violated; but individual citizens cannot complain about their breach in the municipal courts even if the country concerned has adopted the covenants and ratified the Optional Protocol. The individual cannot come to court but may complain to the Human Rights Committee, which, in turn, will set in motion other procedures. In short, the basic human rights, enshrined in the International Covenants above referred to, may at best inform judicial institutions and inspire legislative action within member States, but apart from such deep reverence, remedial action at the instance of an aggrieved individual is beyond the area of judicial authority......'.
In Jolly George Varghese v Bank of Cochin : 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 above judgment, the learned counsel for the appellant made an oral application for grant of a certificate of fitness to appeal to the Supreme Court from our judgment.
20. In our decision, we have merely followed the ruling of the Supreme Court in Jolly George Varghese vf Bank of Cochin : 2SCR913 . Therefore, no substantial question of law of general importance which needs to be decided by the Supreme Court, can be said to arise from our judgment.
21. Hence, we decline to grant the certificate prayed for and dismiss the oral application.