THE FUNDAMENTAL POSTULATES
The Fundamental Postulates
By Shiva Kant Jha
(i)
A
"This Petitioner's position in nutshell; and core legal propositions constituting
legal perspective.
This Petitioner's stand taken in the Writ Petition, are stated in nutshell
at the threshold itself to put the issues before this Hon'ble Court under a sharp
focus:
(i) Our State's legal Sovereignty reveals itself in the terms of our Constitution
only [except in those unfortunate moments, perish the thought, when a constitution
goes down the gutter, and the crude realities of realpolitik become the sole determiner
as it had become when the treaties like the Treaty of Allahabad, or Treaty of
Versailles, or the Treaty of Surrender were signed by the vanquished under the
spiky boots of the ruthless victors];
(ii) Our State has no Sovereign power, unbridled and unlimited, to enter into
a treaty even at the international plane; it has only a Treaty-making capacity
under the constitutional limitations. As the Executive represents our State at
international plane , it acts only as the authorized agent of the State,
and as such it is incompetent to transgress the obvious limitations on its power
imposed by the Constitution which creates it and keeps it alive only with controlled
competence. "In general it seems that the Crown makes treaties as the authorized
representative of the nation." (Keir & Kawson, Cases in Const Law p.160
which can run the risk of acting without capacity if it goes in breach of the
constitutional limitations on its capacity. Oppenheim observes[1]:
'If the Head of State ratifies a treaty without first fulfilling the necessary
constitutional requirements (as, for instance, where a treaty has not received
the necessary approval from Parliament of the state), his purported expression
of his state's consent to be bound by treaty may be invalid."
Art 53 of the Vienna Convention states that if a treaty which at the time
of conclusion conflicts with peremptory norm of international law it would be
void. And Article 45 of the Vienna Convention - probably reflecting rules
of customary international law - allows a state (by way of exception) to
invoke non-observance of its internal law as a basis for invalidating its consent
to be bound by the treaty only if the rule of internal law relates to competence
to conclude treaties, if it is a rule of fundamental importance, and if the violation
is manifest, i.e objectively evident to any state conducting itself in the matter
in accordance with normal practice and in good faith.
(iii) "It is well established as a rule of customary international law", says
Oppenheim, " that the validity of a treaty may be open to question if it has been
concluded in violation of the constitutional laws of one of the states party to
it, since the state's organs and representatives must have exceeded their powers
in concluding such a treaty.. Such constitutional restrictions take various forms."
This aspect of the matter has been pursued in Section IV of this Writ Petition.
(iv) Nothing turns on the concept of "inherent sovereign power" theory because
sovereignty inheres in our Constitution, and it is essentially, as Oppenheim says,
" a matter of internal constitutional power". Oppenheim, while analyzing what
Sovereignty means in the 20th century, observed:
"Sovereignty was, in other words, primarily a matter of internal constitutional
power and authority, conceived as the highest, underived power within the state
with exclusive competence therein"
Even the U S Supreme Court has observed in Hamdan's Case [Hamdan v. Rumsfeld,
Secretary of Defense, et al decided by the U.S. Supreme Court
on June 29, 2006] that 'The Court's conclusion ultimately rests upon a single
ground: Congress has not issued the Executive a "blank check. [Justice Breyer,
with whom Justice Kennedy, Justice Souter, and Justice Ginsburg
join, concurring.] C.K. Allen aptly said:
"ÉThe fact, is, however, that nobody on earth can be trusted
with power without restraint. It is 'of an encroaching nature', and its encroachments,
more often than not, are for the sake of what are sincerely believed to be good,
and indeed necessary, objects." (Allen, Law and Orders 3
rd ed. p. 297).
(v) 'A number of states in their constitutions have made express provision
for limitations on their national sovereign powers in the interest of international
co-operation. These provisions are to the effect that certain sovereign rights
and powers of the state may be limited in connection with international organizations,
or may be conferred upon or transferred to international organizations. This has
particularly become necessary in some states whose constitutions provide for certain
rights and powers, for example the power to legislate, to be exercised only by
organs of the state: by becoming a member of an international organization which
can in some degree be said to be exercising such powers, the state, in absence
of a provision envisaging a transfer of those powers, could be said to be acting
unconstitutionally and the resulting exercise of the powers by the organization
could be said to be ineffective within the state.'[2]
Under the Constitution of India there is no provision for limitations on
the national sovereign powers of our State which can grant an overriding effect
on the constitution .
(vi) The constitutional limitations work both in matters of
(a) treaty formation, and
(b) treaty implementation.
The opinion of Lord Atkin ( in Attorney General for Canada v. Attorney
General of Ontario ) on the possibilities of different approaches in the aforementioned
two segments are right under the British constitution but invalid under our Constitution
for numerous reasons including the express indication in the narration under entry
14 of the Union List which suggests that our Constitution contemplates within
its matrix both the formation (entering into) and implementation
of a treaty. Lord Atkin himself observes that different considerations would be
at work in a federal polity and under a system of governance under a written constitution
with express constitutional limitations.
New Realities and Art 51 of our Constitution
(vii) That in the Minister of State for Immigration and Ethnic Affairs
v Teoh[3], case, the Court found that by entering into
a treaty the Australian Government creates a "legitimate expectation" in
administrative law that the Executive Government and its agencies will act in
accordance with the terms of the treaty, even where those terms have not been
incorporated into Australian law. It is worthwhile asserting that the conventional
differentiation between the governmental acts with fall outs at the international
plane, and the acts impacting the rights and interests of the subjects/ citizens
within the realm (domestic jurisdiction), which had been once upon a time made
by of Sir R. Phillimore's decision in The Parlement Belge [ vide para
23 p. 30 of this Petition], and which was quoted in Maganbhai v. Union[4],
does not survive now. Now we live in a world in which the executive acts done
at the international plane, seep into domestic sphere to act often as catalytic
agent, but most often as prime over and operative force, mostly, now, through
the executive process. Under the Law of Nationality the States protect the interests
of their nationals in foreign jurisdictions, but under, what this Petitioner would
call the Post-modern International Law, the mighty States promote their business
and corporate interests subjecting the not so-fortunate interests under the noxious
burden of executing their agenda best if done covertly, otherwise by coercing
their Parliaments through the pleas of fait accompli. The realities of
the day are captured in the following lines from Noam Chomsky's Hegemony
or Survival (p. 13):
'The whole frame-work of international law is just "hot air", legal scholar
Michael Glennon writes: 'The grand attempt to subject the rule of force to the
rule of law" should be deposited in the ashcan of history -a convenient
stance for the one state able to adopt the new non-rules for its purposes, since
it spends almost as much as the rest of the world combined on means of violence
and is forging new and dangerous paths in developing means of destruction, over
near-unanimous world opposition'"
Now, thanks to the Uruguay Round Final Act, adopted by our Central Government
under an opaque system, we are led to such a morbid pass as would be evident
from such illustrations as these:
(a) The effects of the TRIPS are certain coerced legislation, certain defeats
at the WTO's Disputes Settlement Body, ouster of the jurisdiction of our Superior
Courts, encroachment on our Sovereign Space, infraction (accomplished/threatened),Écreation
of inter-governmental fora to implement the TRIPS agenda without the nation knowing
(the technique of Stealth) [crafted through the memorandum of understanding],
censure and command under the U.S. Trade Act of 1974, which puts India on Priority
Watch List in 2006, in words with which only a country under seize can put up.
We are mandated: "The United States also encourages India to join and implement
the WIPO Internet Treaties." Even our judiciary is told how to behave.[5]
Under the U S Trade Act 1974 Trade Representative can initiate action against
India for punitive retaliation etc. if he is of opinion that our Government has
violated a trade agreement (such as a World Trade Organization (WTO) agreement
or the North American Free Trade Agreement. That Act even says ". 1. An act, policy
or practice is considered to be unreasonable if it is unfair and inequitable,
even if it does not violate the international legal rights of the United States."[6]
And all this to help the MNCs and to promote their agenda
(b) Again thanks to the WTO Treaty the MNCs are even going to the extent of
asserting, in ways much more devastating that what is suggested in Minister
of State for Immigration and Ethnic Affairs v Teoh[7], that Section 3(d) of our Patents Act is
unconstitutional as it is in breach of the TRIPS Agreement! In effect the executive
act, without Parliament's involvement, saddled this nation with obligations which
ride roughshod over the Constitution. Such an atrocious challenge is natural when
the Mashelkar Committee considers Article 27" a specific mandate" holding that
there is " a perception that even the current provisions in the Patents Act could
be held to be TRIPS non-compliant". Hence, in its view, our law is to be made"
TRIPS compliant.' One wonders if there is any difference between the Committee's
approach and that of a MNC like Novartis AG. Both seem to assume that a treaty
made by the opaque system can provide an anvil under our Constitution to crack
even our statute to pieces on the ground of its being ultra vires the TRIPS.
The core point is: Was this sort of Treaty contemplated by our Constitution
to be done this way?
(viii) The core pleadings in this Writ Petition is squarely in tune with the
decisions of the Hon'ble Supreme Court in [8]; Raja Ram Pal vs. Hon'ble Speaker,
Lok Sabha & Ors (Case No.W. P.(civil)1of 2006); I.R. Coelho (Dead)
By LRs v. State of Tamil Nadu & Ors. Date of judgment 11/01/2007.
(ix) No treaty was ever done in the past having as wide and as long-lasting
an impact in the domestic jurisdiction as the ratification of the Uruguay Round
Final Act by the Executive. The U.S. adopted it, with several reservations, though
an Act of the Congress. The U.S. rightly thinks that a treaty usurping the legislature's
power over trade and commerce must be ratified by an Act, and only then to be
adopted by the President. Like other recent trade agreements, including NAFTA,
the United States-Canada Free Trade Agreement, the United States-Israel Free Trade
Agreement and the Tokyo Round Agreement, the Uruguay Round Agreements was constitutionally
executed by the President and approved and implemented by Act of Congress. In
the U.K. accession to the EEC Treaty was after Parliamentary approval; participation
was through enactment, and after obtaining a referendum.
(x) The issues presented in this Writ Petition deserve to be considered, or
reconsidered. in the post- Royappa-Maneka Gandhi-Ajaya Hasia-Kesavanda-.ethos,
keeping in view the crudities of the Economic Globalization.
(xi) Under our constitutional system whilst within domestic jurisdiction the
terms of a treaty can be challenged if they contravene statutory or constitutional
limitations, no statute or a constitutional provision can be challenged before
our domestic court for enforcement of treaty terms de hors them.
(xii) The constitutional powers and duties required by our Constitution to
be exercised within the domestic jurisdiction, or having impact within the domestic
jurisdiction, can not be abdicated, ignored or subjected to extraneous restrictions
for any reason whatsoever. In the context of the Irish Constitution (Ireland has
a written Constitution from which a lot of borrowings our Constitution-makers
had made), in Crotty v An Taoiseach [1987] 2 CMLR 666 the Court observed[9]:
'It would be quite incompatible with the freedom of action in foreign relations
conferred on the Government to qualify it or to inhibit it in any manner by formal
agreement with other States to do so. The free do, does not carry with it the
power to abdicate the freedom or enter into a binding agreement with other States
to exercise power to decide matters of foreign policy in a particular way or to
refrain from exercising it save by particular procedures and so to bind the State
in its freedom of action in foreign policy.'
(xiii) The central thesis in this Writ Petition is founded on propositions
inter alia the following:
(1) The Central Government has no unbridled power in its hip-pocket to be
exercised at international plane (through treaty making, or foreign relations)
de hors the Constitution of India, as the Union of India has no such power
conferred under the Constitution.
(2) It a constitutional solecism to think that any Treaty ( be it a Tax Treaty
or the WTO Treaty or treaties of other conceivable species) can ever enable the
Executive to transgress constitutional competence.
(3) There are only two Articles in our Constitution granting Treaty-making
power: Art 73 and Art 253. They, in effect, say what this Petitioner is asserting
in the Petition. Art 73 subjects the exercise of power to constitutional limitations.
And Art 253 can if invoked only if a Treaty is constitutionally valid. If the
executive enters into a treaty, agreement or convention in breach of the basic
features of our Constitution, or the Constitution's mandatory mandate, then such
an agreement, treaty or convention is constitutionally invalid: hence domestically
inoperative and non est. Our courts, as the creatures of the Constitution,
must uphold the Constitution by declaring such a treaty, agreement or convention
bad. Ours is a written constitution under which all the organs of the polity are
the creatures of written constitution: hence bound by its limitations, both express
and implied. Our Supreme Court clearly stated in Ajaib Singh v. State of Punjab[10]:
"Neither of Articles 51 and 253 empowers the Parliament to make a law which
can deprive a citizen of India of the fundamental rights conferred upon him".
This Petitioner's view is fully supported by (a) Peoples' Commission Report
on GATT by V R Krisna Iyer, O Chinappa Reddy, D A Desai, (all the former Hon'ble
Judges of the Supreme Court); and Rajinder Sachar (the then Hon'ble Chief Justice
of Delhi High Court); (b) V R Krishna Iyer, Dialectic and Dynamics of Human Rights
in India pp.364-365; and Shiva Kant Jha, Judicial Role in Globalised Economy
pp 306-307
(4) This Petitioner deems it a cardinal principle of our jurisprudence that
Hon'ble Court is the ultimate decision-maker in the matter of what sort of norms
(their ambit and reach also) of International Law are expected to be given effect
within the constraints and culture of polity as structured by our Constitution.
"The modern rule". Stephension LJ quoted the illuminating comment of Lord Alverstone
CJ, in West Rand Centrla Gold Mining Co v R[11]:
á "Éany doctrine, so invoked must be one really accepted as binding between
nations, and the international law, sought to be applied must, like anything else,
be proved by satisfactory evidence which must shew either that the particular
proposition put forward has been recognized and acted upon by our own country,
or that it is of such a nature, any civilized state would repudiate it. É. But
the expressions used by Lord Mansfield when dealing with the particular and recognized
rule of international law on this subject, that the law of nations forms part
of the law of England, ought not to be Construed so as to include as part of the
Law of England, opinions of text-writers upon a question as to which there is
no evidence that Great Britain has ever assented, and a fortiori if they are contrary
to the principles of her laws as declared by her Courts."
The tsunami of economic globalization has subordinated the political realm
to the economic realm established under the overweening majesty of Pax Mercatus.
Geza Feketeluty has brought out this reality thus:
"Clearly, the reality of globalization has outstripped the ability
of the world population to understand its implications and the ability of governments
to cope with its consequences. At the same time, the ceding of economic power
to global actors and international institutions has outstripped the development
of appropriate global political structures."[12]
á '[But in this world we are faced with a complex nerve-wrecking problems.
Our executive may through its commitments at the international plane, give rise
to international customary law on a particular point; or may make our country
party to a treaty having domestic or extra-domestic impact. This situation is
likely to be worse as the institutions of economic globalization are clearly in
a position to call the shots. Under such circumstances we must uphold our Constitution.
No norm of international law can be so forged/evolved as to enable the executive
to defile or deface the Constitution.'[13]
(5) Operation of International Law in the domestic sphere
This Petitioner believes that the following stated in Gramophone Company
of India Ltd. v. Birendra Bahadur Pandey (AIR 1984 SC 667 states the correct
relationship between the internal law and the domestic law:
"'The comity of Nations requires that Rules of International law may
be accommodated in the Municipal Law even without express legislative sanction
provided they do not run into conflict with Acts of Parliament. But when they
do run into such conflict, the sovereignty and the intergrity of the Republic
and the suprimacy of the constituted legislatures in making the laws may not be
subjected to external rules except to the extent legitimately accepted by the
constituted legislatures themselves."
Our Supreme Court followed Lord Denning in Trendtex Trading Corpn. v. Central
Bank of Nigeria [1977]1All ER 881 where Lord Denning went to the extent of
observing:
"If this court today is satisfied that the rule of international law on a subject
has changed from what it was 50 or 60 years ago, it can give effect to that change,
and apply the change in our law, without waiting for the House of Lords to do
it." (at p. 890).
Lord Denning departed from the transformation theory followed in Chung Chi
Cheung v. R. [1938] 4 All ER 786 at 790
(6). The Constitution is supreme whether the Executive Governments acts at
the international plane or within the domestic jurisdiction. There are better
Constitutional reasons under our Constitution than under the U.S Constitution.
In the USA The Supreme Court held in Reid v. Covert [ILR
24 (1957) p. 549][14] 'held the provisions of certain
treaties unconstitutional' (Oppenheim p. 77 fn. In Reid 354
U.S. 1 (1957) Justice Black had observed:
"There is nothing in this language which intimates that treaties do not have
to comply with the provisions of the Constitution. Nor is there anything in the
debates which accompanied the drafting and ratification of the Constitution which
even suggests such a result. These debates as well as the history that surrounds
the adoption of the treaty provision in Article VI make it clear that the reason
treaties were not limited to those made in 'pursuance' of the Constitution was
so that agreements made by the United States under the Articles of Confederation,
including the important treaties which concluded the Revolutionary War, would
remain in effect. It would be manifestly contrary to the objectives of those who
created the Constitution, as well as those who were responsible for the Bill of
Rights—let alone alien to our entire constitutional history and tradition—to
construe Article VI as permitting the United States to exercise power under an
international agreement without observing constitutional prohibitions. In effect,
such construction would permit amendment of that document in a manner not sanctioned
by Article V."
This Petitioner finds on the analysis of Constitution's provisions that we
have in India much stronger reasons to accept the Supremacy of Constitution that
Justice Hugo Black had in America.
(7). Treaty-making power can become on certain configuration of facts justiciable
issues amenable ti Judicial Review. This Petitioner believes in what the Peoples'
Commission Report on GATT ( by V R Krisna Iyer, O Chinappa Reddy, D A Desai,
(all the former Hon'ble Judges of the Supreme Court); and Rajinder Sachar (the
then Hon'ble Chief Justice of Delhi High Court) says on the judicially manageable
standards while considering the transgressions and infarction of our Constitution:
"There may be something in the nature of treaty, something about the manner
in which it is negotiated, something about the inevitable consequences and something
about the inevitable consequences and something about its impact on governance
that may call for interference. At one level, the judicial power may simply ordain
lifting secreacy or providing for consultation. At another level, it may be legitimate
to ask whether the treaty offends fundamental rights or puts at risk the very
principles of governance on which the Constitution rests. These are all judicially
manageable standards."
B
Propositions advanced for judicial consideration
This Petitioner advances the following propositions both for the decision
on the issues, and the declaration of law:
- That Sovereignty of
the Republic of India is essentially a matter of constitutional
arrangement which under our polity provides structured government, and grants powers, under express
constitutional limitations, to the
organs it creates to exercise public power; [vide the Diagram
enclosed vide page 4].
- That the Executive
does not possess any "hip-pocket" of unaccountable powers", and has no carte
blanche even at the
international plane;
- That the executive
act, whether within the domestic jurisdiction, or at the international
plane, must conform to the constitutional provisions governing its competence;
- That the direct sequel
to the above propositions is that the Central Government cannot enter into
a treaty which, directly or indirectly, violates the Fundamental Rights
and the Basic Structure of the Constitution; and if does so, that act
deserves to be held domestically inoperative;
- That the Executive's
signing and adoption of the Final Act of the Uruguay Round Final Act in
1994 was a blatant violation of some of our fundamental rights, and
certain vital features of the Basic Structure of our Constitution, besides
that went counter to well recognized social, economic and cultural rights
in utter derogation to the provisions of the Universal Declaration of
Rights;
- That the signing and
adoption of the Final Act bypassed the democratic process as it was
neither presented for discussion, nor approval before our Parliament
despite the fact that the imposed provisions grossly derogated from
national laws and constitutions: thus our democracy suffered because of
gross dereliction of the Executive shown in the handling of the Uruguay
Round Final Act, and mindless granting of commitments under the treaty
having the widest reach and framed in the protocol of pactum de
contrahendo subjecting us to
unending obligations under all that can be done in the on-going process of
the negotiations under the Final Act;
- That under the Final
Act established a 'totalitarian' intergovernmental body, and constituted,
in breach of international law, the World's highest Legislative Body and a
Judicial Court for the benefit of the MNCs and other economic gladiators
who have succeeded in establishing, through strategy and stratagem, the
Rule of Market (Pax Mercatus);
- That the Uruguay Round
Final Act virtually subjects our Parliament to morbid coercion and crypto-psychic
pressure to legitimize the provisions which the Executive made fait
accompli. Without even
comprehending,; and subjects our Superior Judiciary to a most gruesome
ignominy by subverting the Rule of Law as it makes that, in effect, mere
subordinate courts having residuary jurisdiction, or merely courts of
execution for the awards and directives emanating from foreign fora;
- That the terms of the
Final Act are adroitly made to 'police' country level economic and social
policies thereby making criminal trespass on our nation's sovereign space
reserved for our national government; and
- That many pernicious
acts are being done under pressure and persuasion by the WTO and the
corporate Mephistopheles ruling the roost as stand illustrated by what
have been, (or are being done) in the matters of the collusive
intellectual piracy by MNCs, 'the derogation of plant breeders rights, the
genetic manipulation by the biotechnology giants., the patenting of life
forms including plants, animal, micro-organisms, genetic material and
human life forms under the TRIPs agreement'.
Two justifications for the present mode of the entering into a treaty by the
Executive through operations under an opaque system are offered as these:—
(i) Cabinet accountability to Parliament, and
(ii) The mandatory requirement of parliamentary approval implicit in adoption
of legislation enabling implementation of a treaty.
This Petitioner would show the above justification do not stand our critical
scrutiny for the following reasons:
(i) "The Cabinet accountability comes into play only after the country has
been bound by the treaty obligations. The government of the day could lose the
confidence of Parliament but a change of government does not per se terminate
or alter the international obligations undertaken by the outgoing regime."
(ii) "The justification based on enabling legislation equally begs the question.
The issue of enabling legislation arises only after the government has committed
the country to a treaty, and Parliament is faced with a fait accompli.
Even if Parliament refuses to pass the enabling legislation, it will have no effect
on India's international responsibility to comply with the obligations already
undertaken. Indeed, failure to enact the enabling legislation could in appropriate
cases amount to a violation of the treaty. Thus, faced with a piece of enabling
legislation, Parliament will have little or no decisive role in preventing the
country complying with a treaty which it does not approve."
[1] Oppenheim,
International Law ( Peace) ibid p 1232 para 606
[2] Oppenheim, International
Law ( Peace) pp. 125-126
[3] (1995) 128 ALR 353, (1995)
69 ALJR 423
[4] AIR 1969 SC 783 [P.B.
II pp. 248-]
[5] " India's criminal IPR enforcement
regime remains weak, with improvements most needed in the areas of border enforcement
against counterfeit and pirated goods, police action against pirates and counterfeiters,
judicial dispositions resulting in convictions for copyright and trademark infringement,
and imposition of deterrent sentences. The United States urges India to address
these issues during the coming year and thereby strengthen its IPR regime. To
that end, the United States welcomes deeper cooperation with IndiaÉ" http://www.ustr.gov/Document_Library/Reports_Publications/2006/2006_Special_301_Review/Section_Index.html
[6] http://www.osec.doc.gov/ogc/occic/301.html
[7] (1995) 128 ALR 353, (1995)
69 ALJR 423
[8] AIR 1960 S C 845
[9] R. v. Secretary of State
for Foreign and Commonwealth Affairs, ex parte Rees-Mog[1994] 1 All ER 457
[10]. AIR 1952
Punj. 309 at 319.; Vide Annex 'C' printed pp 14-15 being an extract from
Shiva Kant Jha's Final Act of WTO: Abuse of Treaty-Making Power; and also
Shiva Kant Jha , Judicial Role in Globalised Economy pp 306-307 [pub. By
Wadhwa & Co, ]
[11] [1905] 2 KB 391
[12]. 2001 Britannica
Book of the Year. 191.
[13] Shiva Kant Jha , Judicial
Role in Globalised Economy p. 281 [pub. By Wadhwa & Co, ]
[14] 'Although a Status of
Forces Agreement may give the sending state a right to exercise jurisdiction the
law of that state may not permit it to exercise that right. The conclusion was
reached by the U S Supreme Court in relation to the scope of the jurisdiction
of US courts martial, which were on constitutional grounds held not to have jurisdiction
in peacetime over civilian dependents or employees accompanying members of US
forces abroad. (vide Oppenheim p. 1160 fn. 24)
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