Indian Constitution, International Treaties And The Mandates Of WTO

Geeta Dalal

When a nation accepts any international treaty or convention, it partly accepts to surrender a part of its autonomy. However, on no case it must be presumed that the nation has surrendered its sovereignty and constitutional safeguards.
When a law is enacted in a particular country it is mostly based upon its social, economic, and political ideologies and notions. Obviously these ideologies and notions vary from nation to nation and are essentially different in various societies. This is the main reason why we face a “conflict of laws” as laws of two sovereign nations conflict with each other.
At the international level, this situation is generally taken care of by the “private international law”. Nations try to reconcile the two conflicting law and apply the same to the given situation in most appropriate manner.
An important aspect of the private international law is that it is territorial oriented and society specific. Thus, the law of the country in question prevails, if there is a conflict between the two laws of the different sovereign nations.
On the other hand, we have the “public international law” that is based upon international harmonisation principle. Nations across the world try to be part of a process where a harmonised international law is accepted as a base model for formulating national laws. This way conflict among laws of various nations can be minimised.
The treaties and conventions entered under the banner of a common platform like World Trade Organisation (WTO) bind these “member countries” and they cannot plead that the same is against the notions and ideologies of their nation. That is why countries are very cautious while entering into various treaties and conventions.
However, in no case such treaties and conventions can take away the constitutional rights and sovereign functions of a nation. For instance, under the WTO it is not allowed to discriminate among member nation’s goods and services. However, there are some well established exceptions to this rule.
For instance, India has recently allowed preferential market access to indigenously manufactured telecom equipments of India. India has justified its preferential market access (PMA) policy for domestic telecom equipments manufacturers due to telecom security concerns. Thus, no nations would comply with its international obligations to compromise its national security and sovereignty.
Another example in this regard can be found in the form of pharmaceutical companies business in India. Recently Novartis lost the patent claims of Novartis AG’s cancer treatment drug Glivec in Supreme Court of India. The Supreme Court of India held that Novartis product is not patentable in India as per Indian Patent Act, 1970. Similarly,  US pharmaceutical company Merck Sharp and Dohme’s (MSD) appealed before division bench of Delhi High Court when a single Judge of Delhi High Court refused to restrain an Indian firm Glenmark from manufacturing and selling anti-diabetes drugs Zita and Zita-Met through an interim order. Both these cases reaffirm the public interest aspect of pharmaceutical business segment in India.
The treaties and conventions entered at the international level are not automatically incorporated in the “municipal legal system”, though some countries endorse the concept of “automatic incorporation” of the same.
In India, we have to take an independent action of “legislation” under article 253 of the Constitution of India to make the treaties and conventions functional. This shows the legislative superiority of Parliament over the respective States.
This is the reason why the Madrid protocol was not applicable to India till now. The International registration of trademarks under Madrid Agreement and Madrid Protocolhas attracted the attention of international companies and trademark stakeholders.  However, the Madrid Agreement and Madrid Protocol and its applicability and implementation in India were long due.
It is only now that India submitted instrument of accession to the Madrid protocol for international registration of marks. The treaty will enter into force with respect to India on July 8, 2013.
There is nothing wrong if India keeps in mind the public interest element while implementing the international treaty and conventions principles in its municipal legislations. Otherwise, India courts would always maintain the balance by giving Indian sovereignty and constitution precedence over the conflicting international treaty and convention.