In the ever-shifting tides of global politics, India’s engagement with the world stands on a complex web of laws, treaties and conventions. From the Constitution to the daily workings of diplomacy, the legal framework that governs India’s external affairs reveals much about how the nation sees itself and its place in the world.
The Constitutional Mandate
At the heart of India’s external affairs lies Article 246 and the Seventh Schedule of the Constitution, which places matters related to foreign affairs squarely in the Union List. Parliament alone can make laws on foreign relations, diplomatic representation, international treaties, extradition, war and peace. This centralisation ensures coherence in India’s voice abroad.
Article 253 extends Parliament’s reach further. It empowers the Union to make laws for implementing international treaties, agreements and conventions, even on subjects normally under State jurisdiction. This has allowed India to ratify conventions on human rights, climate change, trade and arms control without getting entangled in federal disputes.
Treaty-Making Power
While the Constitution gives Parliament the power to legislate on external affairs, the actual negotiation and conclusion of treaties rests with the Executive. This is drawn from Article 73, which vests the Union’s executive power in the President, exercised through the Council of Ministers led by the Prime Minister. In practice, the Ministry of External Affairs (MEA) handles negotiations, drafts agreements and represents India in international forums.
Unlike some countries, India does not have a formal law requiring parliamentary ratification of treaties, except where a treaty demands changes to domestic law. In such cases, Parliament must pass a law to give effect to the treaty provisions. For example, the Extradition Act, 1962 provides the legal basis to honour India’s extradition treaties.
Implementation through Domestic Laws
Signing an international agreement does not make it enforceable within India. For a treaty to have legal effect domestically, Parliament must enact enabling legislation. Courts have consistently held that international obligations cannot override domestic law unless incorporated by statute.
A case that highlights this principle is Vishaka v. State of Rajasthan (1997). Here, the Supreme Court read the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) into domestic law, using it to fill gaps until Parliament legislated on workplace sexual harassment. This shows the Indian judiciary’s willingness to interpret domestic laws in harmony with international obligations.
Diplomatic Privileges and Immunities
India’s obligations under the Vienna Convention on Diplomatic Relations (1961) and the Vienna Convention on Consular Relations (1963) are given domestic teeth through the Diplomatic Relations (Vienna Convention) Act, 1972. This law codifies privileges such as immunity from prosecution and tax exemptions for diplomats and consular staff, balancing India’s international commitments with the need to maintain the rule of law at home.
Managing External Trade
Foreign trade is a key pillar of India’s external affairs. The Foreign Trade (Development and Regulation) Act, 1992 empowers the government to make policy on imports and exports, impose restrictions, and promote trade interests. The Directorate General of Foreign Trade (DGFT) frames procedures and monitors compliance.
India is also bound by multilateral trade agreements under the World Trade Organization (WTO). The Customs Tariff Act, 1975 and other allied laws help implement India’s tariff commitments, anti-dumping measures and safeguard duties.
National Security and External Affairs
External affairs are not just about handshakes and trade deals; they often cross into the terrain of national security. Laws like the Unlawful Activities (Prevention) Act, 1967 and the Foreign Contribution (Regulation) Act, 2010 are examples of domestic statutes that regulate external influence, funding and potential threats.
The Defence Procurement Procedure and policies governing strategic partnerships with foreign defence firms also reflect how India balances openness with security imperatives.
Dispute Resolution and International Tribunals
India’s participation in international dispute resolution is guided by the Arbitration and Conciliation Act, 1996, which aligns with the UNCITRAL Model Law and the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Indian courts can enforce foreign arbitral awards, subject to certain conditions.
India has engaged international tribunals for boundary disputes, investment treaty arbitrations and maritime claims. The recent Enrica Lexie case, where India and Italy settled a dispute over the killing of Indian fishermen by Italian marines through the Permanent Court of Arbitration, shows the role international law plays when national jurisdictions collide.
Citizenship and Extradition
External affairs also intersect with citizenship and extradition laws. The Citizenship Act, 1955 governs acquisition, renunciation and termination of Indian citizenship. It reflects India’s cautious approach towards dual citizenship—currently prohibited—to avoid conflicting loyalties.
The Extradition Act, 1962 provides the machinery for surrendering fugitives to foreign states, subject to treaty obligations and reciprocity. India has signed more than 50 extradition treaties and multiple mutual legal assistance treaties, expanding its ability to prosecute crimes with cross-border dimensions.
Role of the Judiciary
The Indian judiciary plays an essential role in balancing international obligations with constitutional guarantees. Courts have clarified that if a conflict arises between international law and domestic statutes, domestic law prevails. However, where no conflict exists, courts prefer an interpretation that aligns with India’s treaty commitments.
The landmark Gramophone Company of India Ltd. v. Birendra Bahadur Pandey (1984) reaffirmed that international law can be used to interpret domestic statutes where there is ambiguity, promoting a harmonious global stance.
Shifting Realities and Emerging Challenges
In a multipolar world, India’s external legal framework must adapt to changing realities. Cybersecurity, data sovereignty, climate change obligations and cross-border digital commerce demand new legal strategies. Bilateral and regional groupings like BRICS, the Quad and the Indo-Pacific Economic Framework will shape India’s future commitments.
Furthermore, debates about India signing new treaties—like the International Criminal Court’s Rome Statute or the Refugee Convention—highlight tensions between sovereignty and global governance.
Towards a Cohesive Framework
There have been calls for a comprehensive treaty-making law that would clarify the Executive’s power, ensure parliamentary oversight and promote transparency. Some argue for a clearer domestic process for scrutinising, debating and ratifying treaties, especially those that impact fundamental rights or federal interests.
Conclusion
India’s external affairs are governed by a robust blend of constitutional mandates, statutory laws and international commitments. While the system works, gaps remain in the formal process of treaty ratification and domestic implementation. As India’s global footprint grows, so will the demand for a legal framework that is transparent, adaptive and firmly rooted in the Constitution. In navigating the pressures of geopolitics, the law remains India’s strongest anchor, ensuring that its actions abroad reflect its values at home.
Contributed By: Saksham Tongar (intern)