Article 253, and the Power to Implement a Treaty

In one line

Article 253 empowers Parliament 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, notwithstanding anything in the foregoing provisions of Chapter I of Part XI.

The text and its two limbs

Notwithstanding anything in the foregoing provisions of this Chapter, which is the distribution of legislative powers between the Union and the States.

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.

The second limb is wider than the first and is frequently overlooked. A decision made at an international conference need not be a treaty at all, so Parliament may legislate to implement a declaration or a conference resolution, which is the basis on which Indian environmental legislation was enacted following the Stockholm and Rio conferences.

What the non obstante clause does

It removes the ordinary distribution of legislative power.

Parliament may legislate on a State List subject if the legislation implements a treaty or an international decision, and the State List's exclusivity under article 246(3) does not prevent it.

No resolution of the States is required, unlike article 249, which requires a resolution of the Council of States, or article 252, which requires resolutions of two or more State legislatures.

And no emergency is required, unlike article 250.

So article 253 is the only route by which Parliament may legislate on a State subject unilaterally and permanently, and that is what makes it constitutionally significant beyond its subject matter.

The federal objection, and its answer

The objection. Treaty-making is an executive function requiring no legislative approval, so if the executive can by ratifying a treaty confer on Parliament the power to legislate on a State subject, the executive can enlarge Parliament's competence at the expense of the States without either House or any State agreeing.

The answer given. The power is a necessary incident of India's capacity to conduct international relations, because a State that cannot guarantee performance of its treaties cannot make them, and India would otherwise be unable to enter into any treaty touching a State subject, which would include most of the human rights instruments since public order, police, public health and land are State subjects.

The position is settled in favour of the power, and the limits are that the legislation must genuinely implement the treaty and must not be a colourable use of the article.