I. Introduction

The law regulates the conduct of the society in its most desirable and benign form. It maintains the order in the society and eliminates unhealthy delinquencies and deviations. Thus, law plays an important role in developing a civilised society. The law of a country is generally based on its social, economic, and political ideologies and notions. These ideologies and notions are essentially different in various societies. This usually gives rise to conflict among laws of various nations which is generally taken care of by the Private International Law.

An important aspect of the Private International Law is that it is territorial oriented and society specific. Thus, the laws of the country in question prevail, if there is a conflict between the two laws of the different sovereign States. The Public International Law on the other hand primarily encompasses within its ambit the Treaties and conventions which are required to be uniformly followed by the Member Countries¹. To appreciate the concept better it is inevitable to analyse the concept of International law in some detail. The expression International law is synonymously used for the term Public International Law. It is different from Private International Law that is a law of different States. The rules of Private International Law have been formulated to avoid conflicts that arise due to conflicting laws of different States. The Public and Private International Law differs in many crucial aspects that primarily decide which law will govern the situation. The chances of sovereignty clash are more in case of Private International Law as compared to its counterpart. The following differences between Private International Law and Public International Law are worth noticing:

(1) Subjects: The Public International Law primarily deals with the States and to some extent with the individuals; Private International Law primarily deals with the individuals of two States.

(2) Scope: The rules of Private International Law are made by the concerned sovereign State whereas Public International Law is formed through Treaties and Conventions by common consensus of sovereign States.

(3) Applicability: The Public International Law is applied uniformly to all States with few concessions attached to it whereas Private International Law differs from State to State.

(4) Source of law: The Public International Law is formulated through the mode of Treaties and Conventions whereas the Private International Law is formulated by the legislature of the sovereign States.

As a general rule the Private International Law is usually used to give effect to municipal laws of a State but there may be occasions where Private International Law may become rules of Public International Law. This happens when the rules of Private International Law are incorporated in the international treaties. The TRIPS Agreement was formulated under the category of Public International Law through the Treaty mechanism².

II. The Constitutional analysis

The Treaties and Conventions entered in the sphere of Public Internationals Law 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 U/A 253³ of the Constitution of India to make the Treaties and Conventions functional. This shows the legislative superiority of Parliament over the respective State⁴. Thus, a law passed by the Parliament in this eventuality will not be invalidated on the ground that it is legislating on a subject falling in State List. The non-obstante clause of Article 253 is, however, subject to the other provisions of the Constitution. For instance, Article 253 is subject to the Doctrine of Basic Structure. Similarly, Article 253 is also subject to Part III of the Constitution of India. Thus, the Fundamental Rights cannot be overridden by a law made under Article 253 of the Constitution⁵.

This position points towards the scope of International Law in India. It shows unquestionably that unless and until a Treaty or Convention has been given due effect in India U/A 253 it has no binding value except a moral appeal. This is so because even when enacting laws for the purposes of Private International Law if the law is not enacted properly it has no binding force. A law may be enacted by the Parliament and the same may have received the approval of the President of India, still the same may have no binding force if it has not been notified by the Executive wherever required.

For instance, the Delhi Rent Control Act, 1995 has been enacted by the Parliament and the same has received the approval of the President as well but still the same is not applicable because the Executive has not brought it in to force. Thus, if a law made by the Supreme legislative machinery of India has no force even if it has satisfied almost the entire procedural requirements as prescribed by the Constitution of India, it is difficult to appreciate how International Law has any applicability in India particularly when the same is either against the provisions of the Constitution of India or has not been incorporated into the municipal sphere by a legislation. Even after legislation it must satisfy the mandates of the Constitution of India. Till then it has a mere Moral significance and persuasive value.

It is important to note that even if India is not a party to a particular Treaty or Convention or even if it has not incorporated the same in the municipal sphere, the Constitutional Courts in India have the power to incorporate the same into municipal laws to give effect to Fundamental Rights and other rights. The only condition being that the same are not against the municipal law of India. Thus, there is no fixed rule that if the Parliament has made a law as per the signed Treaty or Convention it is always valid.

The same may be held to be unconstitutional if it is against the municipal law of the country, particularly the Constitution of India. On the contrary, there is nothing that restricts the Constitutional Courts in India to invoke the provisions of International Treaties and Conventions for interpreting the Fundamental Rights in a