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23. Mr. Khambatta, learned ASG raised a preliminary objection to the maintainability of this petition. Mr. Khambatta referred to Article 253 of the Constitution and submitted that it is an overriding Article which starts with a non-obstante clause. It confers exclusive powers upon Parliament to make any law for implementing any Treaty, Agreement or Convention. He submitted that the foregoing provisions of this Chapter referred to in this Article pertain to Article 256 and thus even if a matter falls within the State List of the VIIth Schedule to the Constitution, if the subject matter is covered by an International Treaty, Parliament has the exclusive jurisdiction to make laws for implementing such AJN International Treaty, Agreement or Convention. Mr. Khambatta submitted that Parliament has not made any law for implementation of the GATT under Article 253 of the Constitution and, therefore, the impugned Notifications cannot be struck down as being violative of Article 253 of the Constitution. In this connection, Mr. Khambatta relied on the judgment of the Supreme Court in Maganbhai Ishwarbhai Patel v. Union of India & Anr., AIR 1969 SC 783. Mr. Khambatta also relied on the judgment of the Supreme Court in State of West Bengal v. Kesoram Industries Limited & Ors., (2004) 10 SCC 201 and a judgment of this court in P.B. Samant & Ors. v. The Union of India & Anr. 1994 (4) Bom.

34. The Constitution Bench then turned to Article 253 of the Constitution which deals with legislative relations i.e. distribution of legislative powers. The Constitution Bench observed that the effect of Article 253 is that if a treaty, agreement or convention with a foreign State deals with a subject within the competence of the State Legislature, Parliament alone has, notwithstanding Article 246(3) of the Constitution, the power to make laws to implement the treaty, agreement or convention or any decision made at any international conference, association or other body.

36. In Kesoram Industries Limited's case (supra), the Constitution Bench was concerned with questions of constitutional significance centering around Entries 52, 54 and 97 in List I and Entries 23, 49, 50 and 66 in List II of the Seventh Schedule to the Constitution as also the extent and purport of the residuary power of the legislation vested in the Union of India. It is not necessary to go into the facts of this case. Suffice it to say that in this case, the Constitution Bench reiterated its AJN view in Maganbhai Patel's case (supra) and held that a treaty entered into by India cannot become the law of the land and it cannot be implemented unless the Parliament passes a law as required under Article 253 of the Constitution. The Constitution Bench further held that in view of the non-obstante clause in Article 253 of the Constitution, the State Legislatures would lack legislative competence in respect of any such matters notwithstanding that legislative power was conferred upon them under Article 256 of the Constitution. In other words, Article 253 of the Constitution operated notwithstanding anything contained in Article 245 and Article 246 of the Constitution.

Admittedly, in this case, Parliament has not made any law under Article 253 of the Constitution. Therefore, the stipulations in the instant treaties do not have a binding effect. The argument that legislation is not a pre-requisite for the court to take cognizance and apply international policy must, therefore, be rejected.

41. The matter can be looked at from another angle as rightly argued by Mr. Khambatta. The Constitution recognizes only two sources of legislation i.e. Parliament (Article 246 read with List I and III of the Seventh Schedule and Article 253) and the State Legislatures (Article 246 read with List II of the Seventh Schedule to the AJN Constitution). The legislative powers of these two sources (and of their delegates in the case of subordinate/delegated legislation) cannot under the Constitution be made subject to the provisions of international treaties / agreements / conventions albeit those to which the Union of India (vide its executive powers) is a signatory.