5. Case: Birma v India. High Court of Rajasthan (India)

Docket Number5
CourtHigh Court of Rajasthan (India)
Date17 March 1950
India, High Court of Rajasthan (Divisional Bench).

(Ranawat and Mehta JJ.)

Case No. 5

International Law — Relation to Municipal Law — Treaties — Whether Part of Municipal Law — Absence of Enabling Legislation — Enforcement of Treaties in Municipal Courts — The Law of India.

The Facts.—This was a petition of habeas corpus on behalf of Birma Nai, who was arrested in Dholpur on instructions of the Legal Remembrancer of the Government of the United States of Matsya in order to be surrendered as a fugitive criminal to the Government of the United Provinces. Counsel for the petitioner argued that there was no extradition law in force in the area of the former Dholpur State and that the Treaty of 1869 between the British Government and the Dholpur State regarding extradition of criminals could not be deemed to be law within the meaning of Section 211 of the Constitution of India as that Treaty had not been incorporated in any municipal law of the Dholpur State.

Held: that the petition must be granted. The Extradition Treaty between the former Dholpur State and the British Government, not having been incorporated into the law of that State by legislative enactment, had not become part of the municipal law of the Dholpur State and was not, therefore, a

law in the area of the former Dholpur State under Article 372 of the Constitution of India.1

The Court referred to Halsbury's Laws of England (vol. 6, Part V, §§ 678 and 679), to The Parlement Belge (1879) 4 P.D. 129, and to Walker v. BairdELR (1892 A.C. 491; L.J.C. 92) in support of a contention that in England under common law a treaty requires the sanction of Parliament to make it enforceable by the officers of the Crown and binding upon the State in cases where it affects the private rights of a subject. The Court relied also upon Mangilal v. Sarker (Court of Final Appeal, Udaipur) regarding the validity of an extradition treaty between the States of Udaipur and Gwalior. The following extracts from the judgment in that case were quoted, inter alia:

“Pursuant to the treaty, however, no extradition law appears to have been passed by Shriji though executive orders to district officers appear to have been passed on 3.2.1915. It is unfortunate that in a matter like extradition there should have been no law expressly brought into force in Mewar. The law of extradition was stated by Lord Russel C.J. in Re ArtonUNK (1896) 1 Q.B. (No. 1), 108 (65 L.J.M.C. 23), at pp. 111–112.

“‘The law of extradition...

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