A distinction is made in the U.S.A. between treaties and agreements. It deserves
to be mentioned that the Vienna Convention on the Law of Treaties applies only
to treaties and not to International Agreements (Article 2)]. The agreements are
generally Executive agreements entered into and signed by the President in exercise
of his Executive power. There is a school of thought in the U.S.A. that such agreements
are not 'treaties' under the US Constitutional frame of reference. While adopting
the Uruguay Round Final Act, they must have had in their mind what Justice Homes
had said in Missouri v. Holland
[18]
, after considering various aspects of Constitutional limitations, that
even a treaty can run the risk of being struck by "some invisible radiation
from the general terms of the Tenth Amendment."
The above procedure deserves to be contrasted with the Procedure that was
followed in India in ratifying the Uruguay Round Final Act. The Peoples' Commission
on GATT ( consisting of by V.R. Krishna Iyer, O. Chinnappa Reddy, D.A. Desai
and Rajinder Sachar, the former Judges of great distinction ) gives a comprehensive
account how our government adopted the Final Act without Parliamentary approval,
and without taking the nation in confidence. It was ratified through an executive
act done under an opaque system. This aspect of the matter would be developed
in Chapter II.
(iii) Position in Australia
The Australian Constitution Act, 1900 creates a federal polity distributing
powers between the Federal Government and the States. "A Consultation Paper
on Treaty-Making Power under our Constitution, placed before the National
Commission to Review the Working of the Constitution perceptively summarizes the
Australian position thus:
"Under Section 61 of the Constitution, the power to enter into treaties is
an Executive power. É.Be that as it may, a practice has developed in that country
whereunder Australia would not ratify a treaty or accept an obligation under the
treaty until appropriate domestic legislation is in place in respect of treaties
where legislation is necessary to give effect to the treaty obligations. Several
proposals have been made by groups of parliamentarians to provide for greater
overview by Parliament of the treaty-making power and also to identify and consult
the groups which may be affected by the treaty. All of them are strongly critical
of the lack of transparency in the treaty-making process. One of the NGOs in that
country, namely, National Farmers Federation has suggested that not only the treaties
should be laid on the table of the House before they are finalized but the text
of the treaty should be accompanied by a statement clearly setting out the important
treaty obligations being undertaken by the country thereunder, what effect
the treaty will have on the Australian national interests including economic,
social and environmental and the extent of consultation already held by affected
groups and so on - impact assessment statement, if one can call it, for
short. In May, 1996, the Foreign Minister made a statement to the House of Representatives
outlining a new treaty-making process. According to this, the treaties will be
tabled at least for 15 sitting days, after signature but before they are ratified,
to allow for parliamentary scrutiny. This arrangement was to apply to both bilateral
and multi-lateral treaties and to their amendments. Where however urgent action
has to be taken, a special procedure was devised under which the Agreements will
be tabled in the House as soon as possible with an explanation of reasons for
urgent action. Further, the States will be consulted before entering into
treaties and any particular information about the treaties will be placed before
the Premiers and Chief Ministers' Department. The Government has also agreed in
principle to append a statement indicating the impact of the proposed treaty to
the papers laid before the House. A joint Standing Committee on treaties was established
comprising Members of both Houses and consisting of Federal and State Officers
who shall meet twice every year and consider and report upon the treaties tabled
before the House."
In Australia Art 50 of the Constitution provides that treaties containing
provisions modifying or completing existing laws require for their validity the
approval of the National Assembly, which at the time of giving approval may decide
that treaty should be implemented by the promulgation of laws.
(iv) Constitutional Provisions in France, Ireland, Japan and South Africa,
and others
Under the French Constitution the President is more powerful than the all
other organs of the Government. Per Art 52 he can negotiate and ratify treaties.
But Art 53(1) prescribes:
"Peace treaties, commercial treaties and treaties or agreements relating to
international organization, or implying a financial commitment on the part of
the State, or modifying provisions of a legislative nature, or relating to the
status of persons, or entailing a cession, exchange or ad junction of territory,
may be ratified or approved only by Act of Parliament."
Art 54 of the French Constitution is of importance. It says:
"If, upon the demand of the President of the Republic, the Prime Minister
or the President of one or other Assembly or sixty deputies or sixty senators,
the Constitutional Council has ruled an international agreement contains a clause
contrary to the Constitution, the ratification or approval of this agreement shall
not be authorized until the Constitution has been revised."
Like India, Ireland 'accepts the generally recognized principles of
international law as its rule of conduct in relations with other States [ ( Art
29(3)]. Art. 29 (5) and (6) of the Constitution prescribes the following:
"(5.1) Every international agreement to which the State becomes a party
shall be laid before the House of Representatives.
(5.2)
The State shall not be bound by any international agreement involving a charge
upon public funds unless the terms of the agreement shall have been approved by
the House of Representatives.
(5.3)
This section shall not apply to agreements or conventions of technical and administrative
character.
(6)
No international agreement shall be part of the domestic law of the State save
as may be determined by Parliament."
Under Art 73 of the Constitution of Japan the Cabinet 'concludes treaties.
However, it shall obtain prior or, depending on circumstances subsequent approval
of the Diet."
Art 231 of the Constitution of South Africa provides detailed rules
governing International Agreement: to quote—
"(1) The negotiating and signing of all international agreements is the responsibility
of the national executive.
(2) An international agreement binds the Republic only after it has been approved
by resolution in both the National Assembly and the National Council of Provinces,
unless it is an agreement referred in sub-section (3).
(3) An international agreement of technical, administrative or executive
nature, or an agreement which does not requires either ratification or accession,
entered into by the national executive, binds the Republic without approval by
the National Assembly and he Council within a reasonable time.
(4) Any international agreement becomes law in the Republic when it is entered
into law by national legislation; but a self-executing provision of an agreement
that has been approved by Parliament is law in the Republic unless inconsistent
with the Constitution or an Act of ParliamentÉ"
Oppenheim in his International Law [9th Ed Vol I 'Peace'
pp. 56-81] has examined at length the treaty-making power and procedure of all
the major countries of the world. His exposition suggests that in all major states
important treaties are made with the approval of the legislative organ of the
state.
( iv) Parliamentary control on Tax Treaties in the U.K. and the USA, Australia,
and Canada
In the U.K. the Crown's power of treaty-making, and limitations thereon,
have been thus stated in Keir & Lawson's Cases in Constitutional Law:
"There is no doubt that the Crown has full power to negotiate and conclude
treaties with foreign states, and that, the making of a treaty being an act of
State, treaty obligations cannot be enforced in a municipal courtÉ Can the Crown
bind the nation to perform any and every treaty which it makes? In general it
seems that the Crown makes treaties as the authorized representative of the nation.
There are, however, two limits to its capacity: it cannot legislate and it
cannot tax without the concurrence of parliament" [emphasis supplied].
In the U.K. the Tax Treaties are approved by a resolution of the House of Commons,
which means, in effect, the British Parliament itself. This effect inevitable
follows from certain provisions of the Parliament Act, 1911 similar to which we
have incorporated in our Constitution. Pointing out this aspect of the matter
Keir & Lawson points out the following in their Cases of Constitutional
Cases [5th Ed p. 54]:
"Once the House of Commons had, by the Parliament Act, 1911 (1 & 2 Geo.
5,c. 13), secured the full and exclusive control of taxation, there was no reason
why taxation should not be levied at once under the authority of a resolution
of the House".
In the U.K a Tax Treaty is done through an Order in Council after a resolution
is passed by Parliament, and is communicated to the Crown. If any provision under
a treaty affects revenue, or the rights of the people, a statutory foundation
must be provided. Its clear
illustration is the Section 815AA ( Mutual agreement procedure and presentation
of cases under arrangements), which was inserted in the British I.C.T.A.,
1988 to provide a statutory foundation to Mutual Agreement Procedure part of a
Tax Treaty.
In the United States, the Constitution provides in Article VI, cl.2
that all treaties "shall be the supreme law of the land; and the Judges in every
state shall be bound thereby, anything in the Constitution or laws of any State
to the contrary notwithstanding ". Under the US practice the President of United
States explains to the Senate the considerations involved in framing a tax treaty.
The letters of Submittal and of Transmittal pertaining to the Indo-US tax treaty
are comprehensively drawn for the full information of the mind of the Senate,
and through that to the whole nation.
In Canada every Tax-treaty is an enactment under a separate Act. In
Crown Forest Industries v. Canada (1995) 2 S.C.R. 802 the Canadian Supreme
Court was considering the Canadian-US Tax treaty as done under the Canada-United
States Tax Convention Act, 1984.
In Australia every Tax-treaty is specifically examined and integrated
as a statute under the International Tax Agreements Act, 1953.
(c)Treaty-making power where the Government is a constitutional creature
(as in India)
Lord Atkin, in Attorney General for Canada v. Attorney General of Ontario,
was examining the British view about treaty-making. But he was quite conscious
of the fact that in a country with a written constitution, like ours, a different
set of considerations would need consideration. He mentioned this fact in so many
words in his judgment itself.
The Executive under the Constitution of India is a creature of the Constitution,
and, by way of constitutional logic, possesses no "inherent" sovereign power.
This view is based on a mandatory norm recognized by international law also as
would be evident from what Oppenheim's states in his International Law:
"Constitutional restrictions: It is well established as a rule of customary
international law 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 treatyÉÉ For the United Kingdom, constitutional
restrictions do not play a prominent part in the conclusion of treaties. É
Article 45 [Art 46] 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."
[19]
Lord McNair states the legal position in the same way. But the first point
in his "Conclusion" deserves a specific notice because of its contextual relevance:
to quote—
"A treaty which is made on behalf of a State by an organ not competent to
conclude treaties or that kind of treaty, or which fails to comply with any relevant
constitutional requirements, such a consequent of a legislative organ, is, subject
to what follows, not binding upon that StateÉ."
[20]
"In International Law, nations are assumed to know where the treaty-making
power resides, as well as the internal limitations on that power.
[21]
J. Mervyn Jones in his article on "Constitutional Limitations on Treaty-making
Power" examines the effect of constitutional limitations.
[22]
Two important English writers support the view that constitutional limitations
are completely effective under international law
[23]
. It is time to give democratic orientation to international law.
[24]
The New Encyclopedia Britannica
[25]
aptly observes:
" The limits to the right of the public authority to impose taxes are set by
the power that is qualified to do so under constitutional law. É.. The historical
origins of this principle are identical with those of political liberty and representative
government - the right of the citizens."
It would be contrary to our Constitution to grant the Executive "extra-constitutional
powers". David M. Levitan has put it felicitously when he observed: "Government
just was not thought to have any "hip-pocket" unaccountable powers".
[26]
The theory of inherent sovereign power is anachronistic, hence erroneous
in the context of our type of polity we have set up under the Constitution of
India. Examining the concept of Sovereignty Oppenheim observes:
"The problem of sovereignty in the 20th Century. The concept of
sovereignty was introduced and developed in political theory in the context of
the power of the ruler of the state over everything within the state. 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"
Under our constitutional frame-work the question of inherent power does not
arise. The right question is: whether the government possessed the legal power
to do what it has done. Prof. Laski observed :
" We have to make a functional theory of society in which power is organized
for ends which are clearly implied in the materials we are compelled to use. The
notion that this power can be left to the unfettered discretion of any section
of society has been reveled as incompatible with the good life. The sovereignty
of the state in the world to which we belong is as obsolete as the sovereignty
of the Roman Church three hundred years ago".
[27]
In our days International Law and International Institutions have made great
strides towards making the countries of the world good neighbours
[28]
. Human rights have received such wide expansion and reorganizations that
even the levy of income-tax has acquired a human right dimension. Our world has
shrunk to become a global village. We
are through a process of globalization. In this sort of the world invocation
to sovereignty is meaningless. Any action and every action of a public authority
is to be weighed on the calculus of rights and duties recognized under municipal
law, and also under international law. Under our Constitution it is erroneous
to hold that any organ of the State has any inherent Sovereign Power. This view
brings to mind Hobbes' Leviathan: "The Leviathan or commonwealth is 'an
artificial man', sovereignty is its soul, the magistrates are its joints, 'reward
and punishment, by which fastened to the seat of the sovereignty every joint and
member is moved to perform his duty, are the nerves that do the same in the body
natural."
[29]
But this doctrine of inherent sovereign power of the Executive was tamed
finally by the Bill of Rights whereunder it lost all many powers including
the power over taxation, inaugurating an effective control of the Executive by
Parliament.
The Report of the Peoples' Commission gives a graphic account
of the constitutional limitations on Treaty-Making Power: to quote—
"The limitations on the exercise of the Treaty-making power flow from certain
principles which are fundamental to constitutional governance of India. The first
is the general principle of accountability which requires government to account
to the people for every exercise of power through the aegis of institutions set
up by or under the Constitution. Such accountability may be through the law which
lays down norms which discipline and govern the exercise of the power. Where no
such law exists -and none exists to discipline the exercise of the treaty-making
power - the government is not free to do what it likes. Where the government
chooses to proceed without serious recourse to any form of accountability, other
institutions of governance cannot stand idle by. Where Parliament is rendered
powerless, other institutions must secure this accountability to such measure
as may be deemed necessary. Where something is done in secret, simply breaking
the veil of secrecy may be enough. It all depends on the facts and circumstances.
The second principle which is fundamental to the rule of law is that no
person's rights can be altered without reference to 'law'. If the executive simply
interfere with the exercise of rights or alter them in any way other than de
minimus infringement, this would constitutionally improper and call for the
interdiction of judicial process. The third set constraints flow from the
basic structure of the Constitution. Although the basic structure doctrine was
first enunciated to contain an over-extensive use of power to amend the Constitution,
the principles underlying the basic structure are also crucial aids to interpretation
and factors to be borne in mind when considering the exercise of the executive
power."
(d) Art 73 of the Constitution of India
In terms of Art. 73 of the Constitution the executive power of the Union extends
to the matters with respect to which Parliament has power to make laws. That power
is co-terminus with the Union's legislative power under entries 13 and 14 of List
I of the Seventh Schedule29a. Under Art. 53 of the Constitution, the
executive power of the Union vests in the President. The Constitution requires
that the executive power of the President must be exercised in accordance with
the Constitution. Article 73 is also "subject to the provision of our Constitution".
It is true that Article 253 enables Parliament to make laws for implementing any
treaty agreement or convention with any other country or countries or any decision
made at international conferences, associations or other body. Article 73 (1)
(b) provides for the executive power of the Union extends also in respect of the
exercise of such rights, authority and jurisdiction as are exercisable by the
Government of India by virtue of any treaty or agreement. Articles 253 and 73
(1) (b) both deal with an ex post facto situation, that is,
a consequential situation arising out of an international treaty, agreement or
convention already entered into. They confer the necessary power to make and implement
such treaty, agreement, etc., but nothing can be done contrary to the Constitution
of India: for example, the Union Government cannot barter away the sovereignty
of the people of India by entering into a treaty making India a vassal of another
country and then invoke Articles 253 and 73 (1) (b) to implement the treaty. Such
a treaty would be void ab initio being repugnant to the basic features
of the Constitution, namely, the sovereignty of the people.
In India, exercise of all powers, executive or legislative, are under constitutional
limitations. Our Constitution has not granted the executive any 'exclusive' power
to enter into a treaty or agreement. Our Constitution subjects the executive power
of treaty making to the following two limitations:
(i)
It must not contravene our fundamental rights, and must not breach the basic features.
(ii) It must satisfy the existence of the conditions precedent in exercise
of power under Art 253, i.e. there must exist an agreement done by the executive
without transgressing constitutional limitations.
________________
29a (13) Participation in international conferences, associations
and other bodies and implementing the decisions made thereat
(14) Entering into treaties and agreements with foreign contries and implementing
of treaties, agreements and conventions with foreign countries.
K. Ramaswamy, J said in S. R. Bommai v. Union of India
[30]
: "The State is the creature of the Constitution". In India the executive
derives power to enter into treaties from Art. 73 of the Constitution. The executive
government of our country possesses no inherent powers. It is true that exercising
such powers the zone of the executive operation is co-terminus with the expanse
of legislative power in view of the entries 13 and 14 of List I of the Seventh
Schedule. But the exercise of these derivative powers is themselves under constitutional
limitations.
This treaty making power is to be read with Art 253 of the Constitution, which
allows Parliament to make laws implementing a treaty notwithstanding the fact
that the subject matter of the treaty is contained in List II of the Seventh Schedule
containing subjects within the legislative competence. But the executive power
is, as per Art 53, to be exercised it in accordance with the Constitution. Though
Article 253 does not mention that it is under constitution limitations yet on
proper construction even this is under constitutional limitations. It contemplates
"any treaty, agreement or convention". 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
[31]
:
"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".
(e)A miscomprehension which must be removed.
The simplistic view, adopted by many under the influence of the British constitutional
practice, is that a Treaty is not a matter of domestic concern unless it affects:
(a) the law of the land, and
(b) the vested rights protected under the law.
These issues are to be considered under the parameters of the Constitution
of India:
(i)
The Executive power, under our Constitution, is co-terminus with the powers of
Parliament. But the Executive power, too, must be exercised not de hors
the constitutional provisions. No Treaty can authorize, even in the realm of the
exercise of the Executive power, to ride roughshod over our Constitution's commitments
to the nation. In most matters the exercise of the Executive power "are not far
removed from legislation"
[32]
. Hence the exercise of the executive power cannot avoid constitutional limitations.
(ii) The Executive can coerce our Parliament to implement a Treaty provisions
by hoisting the dread of India's international delinquency. Chapter and
verse can be quoted from the text-books of International Law and the decisions
of the international tribunals to mesmerize and coerce our representatives
[33]
(as it has already happened vide Chapter II).
(iii) Executive can subject our country to several international and domestic
commitments of momentous consequences. Every student of history knows that the
Weimer Constitution of Germany was destroyed by the covert and overt maneuverings
of the Executive Government. Perhaps, perish the thought, the bell is tolling
for our Constitution too.
(iv) . The Report of the Peoples' Commission on GATT has rightly summarized
the correct constitutional principle when it said
[34]
:
"The Constitution makers intended the government to be possessed of an executive
power which is wider than the narrower duty to give effect to legislation (see
Ram Jawawayya Kapur v. UoI AIR 1955 sc 549). But in exercise of this
wider power, the rights of citizens cannot be taken away without specific legislative
sanction and authority (Bijoe Emmanuel AIR 1987 SC 788).This rule is
fundamental and a necessary adjunct to the recognition of a wide executive power.
Equally, in normal circumstances, it is somewhat sanguinely assumed that all exercises
of the executives power would be consistent in a manner consistent with the principles
of the basic structure of the Constitution. But, normal times tread unwarily into
abnormality. That is why the touchstone of the basic structure has been inducted
to discipline the exercise of even those special exercises of sovereign power
such as the imposition of President's Rule and the like (see S.R. Bommai
(1994) 3 SCC 1; É. The older view that the exercises of executive power are immune
from judicial review has now correctly been abandoned (see Central for Civil
Services Union v. Minister of Civil Service (1984) 3 All ER 935)."
(v) It is often said that the treaty provisions, when they offend a law, or
cause prejudice to the vested rights of people, require Parliamentary consent
for implementation. But the executive has open to it vast areas wherein it is
free to implement treaty terms by purporting to exercise its powers in the executive
realm which is much wider than the conventionally conceived legislative realm.
It is submitted that this sort of fine distinction is, under the present-day polity,
totally otiose and anachronistic.
(vi) The point emerges very clear through the fact that despite the laws protected
under the 9th Schedule to the Constitution, the Government is liberally
granting corporate zamindaris by facilitating the acquisition by the big
corporations, almost free, huge plots of land even by uprooting many humble citizens.
(f) No Power to the Executive at the International Plane.
It is worthwhile to consider a specific constitutional question: what was the
understanding at the time the Constitution was drafted, and what emerges from
the various provisions of our Constitution? The Constitution vests executive power
in the President but he is not in the position in which he, as Professor Woodrow
Wilson noted, ''has the right, in law and conscience, to be as big a man as he
can'' and in which ''only his capacity will set the limit.'' In India it is wrong
to think that powers of external sovereignty passed from the Crown to our Republic
of India. Our Constitution does not grant our Executive any external sovereignty
through affirmative grants. Under our Constitution it is wrong to think that power
over external affairs, in origin and in its essential character, is different
from that over internal affairs. The President speaks or listens as a representative
of the nation but only within Constitutional limitations. The Executive under
our Constitution cannot preempt law. If this is allowed to happen, our Constitution
may be driven by the Executive to commit suicide by its own boot-straps; and our
Democracy will come to an end.The Constitutional limitations within which all
Executive power is to be exercised are set forth itself. The Sovereign status
of the Constituent Assembly had been boldly acknowledged by the great Indian leaders.
Granville Austen very perceptively observed34a :
___________________
34a. Granville Austen, The Indian Constitution, Corner Stone of a Nation p.
1 & 7
" Gandhi expressed the truth first ---that Indians must shape their own destiny,
that only in the hands of Indians could India become herself -when in 1922
he said that Swaraj would not be a gift of the British Parliament, but must spring
from 'the wishes of the people of India as expressed through their freely chosen
representatives'. Twenty-four years later these words were repeated during the
opening session of the Constituent Assembly; they were, some said, the Assembly's
origin; all agreed that they were its justification."
"The Assembly was the people's. As Nehru said, the British could now dissolve
the Assembly only by force. 'We have gone through the valley of the shadow, and
we will go through it again for true independence, he said."
Jawaharlal Nehru had declared that India's constitution-making couldnot be
"under the shadow of an external authority". The Cabinet Mission had come to New
Delhi to help the Viceroy set up in India a machinery by which Indians could devise
their own constitution. Our Constitution was not to be one written in the colonial
office of the imperial powers and passed by the British Parliament. Austen aptly
points out that the desire for a "home-made' constitution is the source of what
K.C. Wheare has named the "principle of constitutional " autochthony", or desire
for a constitution sprung from the land itself.
[35]
The Constituent Assembly arrogated to itself an absolute authority to control
its being. It declared:
"The Assembly shall not be dissolved except by a resolution assented to by
at least two-thirds of the whole number of members of the Assembly."
[36]
The unique character of our constitution-making revealing its sovereign competence
in constitution-making ( in contradistinction to its acknowledgement that whilst
acting as a legislative body under the federal system of the 1935 Act. Austen
says:
"India was an emergent , formerly colonial territory, where a sovereign people
framed their Constitution in a Constituent Assembly while at the same time working
a federal government that pre-existed independence --the federal system of 1935
Act."
The Indian Independence Act came into effect on 15 August 1947, merely recognizing
what was fait accompli. In terms of Public International Law it was a mere
recognition of cognitive nature by a defunct and uprooted foreign power.
The Act did not grant sovereign status to us either in domestic sphere or at the
international plane.
Our Constitution organizes and distributes the whole of the State power through
its well-knit structure leaving the Executive with no hip-pocket with reserve
power outside the ken of the Constitution. This deduction is amply borne out by
the provisions of our Constitution viz.:
Art 53(1) The Executive power of the Union shall be vested in the
President and shall be exercised by him either directly or through
officers subordinate to him in accordance with the Constitution.
Art. 73 Extent of executive power of the Union. ---(1) Subject to the
provisions of this constitution, the executive power of the Union shall
extendÉÉ.
Art. 245 Extent of laws made by Parliament and the Legislatures of
the States.---- Subject to the provisions of this Constitution,
Parliament mayÉ.
Art. 372. Notwithstanding the repeal by this Constitution of the
enactments referred to in article 395 but subject to the other provisions
of this Constitution, all the law in force in the territory of India
immediately before the commencement of the Constitution shall
continue in force therein until altered or repealed or amended by a
competent Legislature or other competent authority.
David Levitan, examining an analogous issue in the context of he U S Constitution,
struck an apt note by highlighting the reductio ad absurdum of the argument
when he so perceptively said:
"Were one to assign binding effect to the more sweeping statements on the
scope of the external powers, then, it would appear that treaty provisions even
violative of of substantive phrases of the Constitution , i.e., the bill of rights,
or the Fifth Amendment, would be binding on the United States."
[37]
Reflecting on the idea of "inherent power" of the government at the international
plane,
David M. Levitan further observes:
"Regarding the "inherent" powers doctrine, it is well to add, that though
the existence of such powers has sometimes been referred to by the courts and
by writers on public law, there is little justification for the perpetuation of
such a theory. Its introduction was contrary to the spirit of a written constitution,
Whether or not a written constitution is the most desirable basis of government,
as long as we live under such a document there appears little room for the theory
of "inherent" powers. Instead a liberal and broad interpretation of such provisions
is more in harmony with our philosophy that the Constitution limits governmental
authority. The argument that the interpretation and reinterpretation of constitutional
phrases in the light of modern conditions makes little more than a fiction out
of the notion that we are living under the Constitution, will not be denied. Our
government should continue to meet the ever changing needs of the people within
the frame-work of the general philosophy of the supreme Constitution with some
specific prohibitions."
[38]
Michael D. Ramsey revisits the Inherent Powers Theory, and concludes his exposition
( again in the context of the US Constitution):
"In short, the drafters (of the Constitution) thought about foreign affairs
powers as they did other powers. Foreign affairs powers were granted to the national
government, or denied to the states, by the terms of the national government's
governing document. Careful attention to detail was required to achieve the best
allocation of powers between the national government and the states. This is confirmed
by the language of both the Articles and the Constitution, by practice under the
Articles and by the drafters' own explanation of what they had written. They had
no idea of an inherent division of powers into "external sovereignty" and "internal
sovereignty" that automatically governed which powers would be held by the national
government and which by the states, but were groping for the right balance in
a very real, practical manner--- carrying over allocations
from the Articles to the Constitution where they seemed to work. And making
adjustments where problems had arisen."
[39]
He points out that the U S Constitution was not drafted with a background
assumption of 'inherent powers' in foreign affairs. He found it clear from
the
following pointers:
(1) First, the constitutional text itself delegates and allocates core foreign
affairs powers directly, which would be unusual if inherent powers were widely
assumed.
(2) Second, the drafters explained the foreign affairs powers of the national
government under the new Constitution as grants of power, not as confirmations
of existing inherent powers. No one suggested that the Constitution's grants
of foreign affairs powers were superfluous, although members of the constitutional
generation were quick to point out superfluous provisions in other contexts.
(3) Third, the Articles of Confederation− an important model for the
Constitution in the foreign affairs area− had no concept of inherent
foreign affairs powers. The text of the Articles did not grant Congress certain
key foreign affairs powers− such as the power to regulate foreign commerce
and the power to enforce treaties and the law of nations− and Congress therefore
thought it lacked these powers. No one suggested that Congress had these powers
inherently. The only remedy for Congress' lack of textual foreign affairs powers
was thought to be amendment, a strategy pursued piecemeal and without success
in the mid-1780s, and ultimately accomplished by the Constitution's grant of broader
textual powers.
The American Constitution, which provided us with a model of a written constitution
with fundamental rights [and the borrowings wherefrom are so evident in our Constitution
(especially in Art 14),] provides an appropriate perspective for comprehending
constitutional issues under our Constitution. The Attorney-General, addressing
the court in the Five Knights' Case ( one of the state trials of Stuart
England ) for the Crown asked, "Shall any say, The King cannot do this? No, we
may only say, He will not do this."
[40]
It was precisely to ensure that in the American system one would be able
to say, "The State cannot do this," that the people in America enacted
written Constitution containing basic limitations upon the powers of government
[41]
. We have done precisely the same under our Constitution.
(g) Light from Hamdan v. Rumsfeld, Secretary of Defense, et
al decided by the U.S. Supreme Court on June 29, 2006
The United States Supreme Court has in its decision dated June 29, 2006
(No 05-184. 2006 has made out propositions,
inter alia, these:
(i) "It supports the proposition not only that these military commissions
are inconsistent with federal statutes and U.S. treaty obligations, but also with
the broader basic principle that mere assertions of military necessity are not
sufficient to overcome serious judicial review of a president's conduct."
(ii) 'The Court's conclusion ultimately rests upon a single ground: Congress
has not issued the Executive a "blank check." Cf. Hamdi v.
Rumsfeld, 542
U.S. 507, 536 (2004) (plurality opinion)'. [Justice Breyer, with
whom Justice Kennedy, Justice Souter, and Justice Ginsburg
join, concurring.]
(iii)
The Court upheld its commitment to uphold constitutional protection and international
human rights.
(iv)
The Court showed no appreciation for the fact that the Congress and
the President might well know more than the Judges do about the security needs
of the U.S.
(v)
The Detainee Treatment Act, 2005, which included a provision that 'no
court, justice, or judge' had jurisdiction to hear application for habeas corpus
from any prisioner detained at Guantanamo, could not stand in the way of the Court
in exercising the power of Judicial Review.
(vi)
The Court rejects the view that it is the President, not the Court, who` has
expertise to decide an issue of the type considered in Hamdan.
(vii)
United States v. Curtiss-Wright Export Corporation is referred only in
the dissenting judgment. The general tenor of the Court's judgement strikes
a note clearly different from that in curtiss- Wright
But much before this decision in the Youngstown Sheet and Tube Co v. Sawyer
[343 U S 579 (1952) ], the concept of the 'Executive Power" was extensively considered,
and multiple opinions were delivered. During the Korean War President Truman had
seized certain steel industry in the throes of strike. It was defended as an exercise
of 'executive power' including the power wielded as the Commander-in-Chief. Six-to-three
the Court rejected this argument, and held the seizure void.
(h) Constitutional provisions governing the Tax Treaties.
Art. 265 of our Constitution says : "No tax shall be levied or collected except
by authority of law." Law refers to a valid law. In the context of Article
265 of the Constitution it means an Act of the Legislature. In its import it states
the British position resting on the Bill of Rights that "TAXATION in England must
be authorized by statute." Hood Phillips aptly says:
"It was supposed to have been settled by Magna Carta and by legislation in
the reigns of Edward I and Edward III that taxation beyond the levying of customary
feudal aids required the consent of Parliament.".
The impact of the Parliament Act of 1911 enacted in the UK is clear on Articles
109 and 110 of a Constitution of India. Article 110 (1) provides definitions of
Money Bills which includes a Bill dealing with the imposition, abolition, remission,
alternation, or regulation of any tax. This is what we get in the definition of
Money Bill given in section 1
(2) of the Parliament Act 1911 with only one change that for "repeal" used
in the UK Act, Article 110 (1) (a) uses the expression "abolition." On this point
our Constitution prefers the comprehensive definition of the terms pertaining
to taxation than the Government of India Act, 1935 used in its section 37. Article
109 of the Constitution of India deals with the special procedure in respect of
Money Bills. The Parliament Act, 1911 of the UK put an end to the power of the
House of Lords to amend or reject a Money Bill. After this act they can cause
delay for a period no more than a month. Under our Constitution a Money Bill originates
only in the House of the People. The Council of States has no competence to reject
or amend a Money Bill : only suggestion can be made which the House of the People
may accept or may not accept. But this must be within 14 days of the receipt of
Bill otherwise the Bill is deemed to have been passed by both Houses at the expiration
of period of fourteen days from the date of the receipt of the Bill. The Government
of India Act 1935 did not draw up distinction between Money Bills and other Financial
Bills. The Constitutional provisions in our country establish full and exclusive
authority of our Parliament in matters of taxation. In effect the full and
exclusive authority in matters of taxation is of the House of the People, as it
is in the United Kingdom. It is a constitutional principle of highest importance
that neither we can be taxed through an executive fiat, nor untaxed through an
executive concession. To tax or to grant exemption form the two facets of the
same thing.
In all the major countries, which have adopted OECD Model of tax- treaties,
such treaties are done with legislative approval. It is worthwhile to quote Klaus
Vogel who states
[42]
:
"In parliamentary democracies, the executive ordinarily must obtain the consent
of parliament to conclude important agreementsÉ"
( i )The International Law observation-post.
Our Raw Realities
The profile of the political structure of the world shows that it consists
of sovereign States at different levels of political integration, socio-economic
attainments, socio-political morality and cultural achievements. Some of them
have vast potentialities of development whereas many others have not much scope
to do so on account of poor natural and human resources. The countries less endowed
with resources are ironically more prone to assertions of their sovereignty. Many
of them tried, in varying measures, to turn their countries into spheres of darkness
where the possessors of the ill-gotten wealth can find best places to keep that
un-noticed by those who are swindled. Many of such States are the members of United
Nations, and are the recognized players in international politics because of their
sovereign status. 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."
[43]
In the last five decades of the 20th century great strides were
made in the sphere of public international law. At the time of Dutch jurist Hugo
Grotius the States that mattered were only a few. The rules resembled the rules
of game in which sharp practices were the privileges of the mighty. The range
of the subjects of international law has remarkably increased in the recent decades.
With the break-up of colonialism in the post-Second
World War era, a host of new States have emerged. New States are being minted
even now. But a most dominant theme is that international law is being shaped
by the desires of the mighty States to suit their interests in furtherance of
their own economic gains; and for other geopolitical reasons. International organizations
have acquired international personality. With the onset of the economic globalization,
the economic organizations and institutions, like the IMF, World Bank, and the
World Bank emerged as international persons. Because of their enormous power,
they are in a position to condition the evolution of international law after their
heart's desire. As they exist to protect and advance the interests of the corporate
imperium, this results in the triumph of Pax Mercatus. This sort
of system is bound to be both opaque and undemocratic. We are duty-bound to reflect
on this emerging scenario from the observation-post of our Constitution, and the
general principles of civilized jurisprudence.
In this world we are faced with 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 or evolved as to enable the executive to defile
or deface our Constitution. It is hoped that our Supreme Court would uphold our
Constitution against the onslaughts by the lobbyists of international law of this
neo-classical phase. Long before this situation, Georg Schwarzenberger had noticed
this phenomena when he laconically said:
"The doctrine of the supremacy of international law over municipal law appeals
to the amour proper of international lawyers and has its attractions de
lege ferenda. In lex lata, it corresponds to reality on the -always
consensual—level of international institutions, in particular international
courts and tribunals."
[44]
The new realities of this phase of Economic Globalization have been well described
[45]
by Prof. Sol Picciotto of the Lancaster University with whom this author
had the privilege of discussing the subject at length:
"Significantly, the new wave of debate in the 1980s, as writers from
various perspectives have sought to rethink the nature and role of law in international
affairs, pre-dated the major changes in inter-state relations which occurred in
the 1990s. Much of the writing on international law in the 1970s accepted
a functionalist and even instrumentalist view of law, arguing for an adaptation
of law to the changed 'realities' of international society, especially the creation
of many new states by decolonization."
Then Prof Picciotto mentions the crude realties of the present-day international
geo-politics: he says -
"Thus, especially in the hands of the dominant Yale theorists of the
Lasswell-McDougall school, it tends to result in apologia for the perspectives
of authoritative decision-makers, and especially of US foreign policy-makers,
cloaking their policies in value-justifications based on generalised concepts
of the human good."
It appropriate to sound a note of caution in any reliance on Art. 51 of the
Constitution which directs the State to "foster respect for international law
and treaty obligations in the dealings of organized peoples with one another."
The norms of International Law in order to be recognized such norms must receive
judicial recognition by our Constitutional Courts. No rule can be recognized
as a rule of international law unless it is judicially so recognized. This
is required most in our time when the astute players of the dominant economic
realm shape the present-day international law. It becomes the duty of our constitutional
courts to preserve and maintain the supremacy of our Constitution and the law.
Realities of the Economic Globalization requires now, as never before, that while
formulating our view as to International Law in the context of Art. 51 of our
Constitution, we should take into account the realities which are quite often
created and shaped through the Art of Corruption and the Craft of Deception. After
all it is for our Superior Courts to ascertain which norms should be treated the
norms of customary international law. Lord Alverstone CJ said, in West Rand
Centrla Gold Mining Co v R
[46]
that '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 countryÉ.' And Lord
Atkin said in Chung Ch Cheung v. R
[47]
:
"É.so far at any rate as the courts of this country are concerned,
international law has no validity save in so far as its principles are accepted
and adopted by our own domestic law".
(l) Certain dicta of our Supreme Court are clearly obiter, and
per incuriam
Certain observations made by our Supreme Court on the Treaty-making power are
both
obiter and per incuriam: to illustrate -
(a)
In Maganbhai Ishwarbhai Patel v. Union of India
[48]
. After relying on the following observation of Lord Atkin in Attorney
General for Canada v. Attorney General for Onterio
[49]
, Which our Supreme Court quoted in extensor :
"It will be essential to keep in mind the distinction between (1) the formation,
and (2) the performance, of the obligations constituted by a treaty, using that
word as comprising any agreement between two or more sovereign States. Within
the British Empire there is a well-established rule that the making of a treaty
is an executive act, while the performance of its obligations, if they entail
alteration of the existing domestic law, requires legislative action."
our Supreme Court observed:
"The executive is qua the State competent to represent the State in all matters
international and may by agreement, convention or treaties incur obligations which
in international law are binding upon the State. But the obligations arising under
the agreement or treaties are not by their own force binding upon Indian nationals."
(b)In Union Of India v. Azadi Bachao Andolan
[50]
a Division Bench of this Hon'ble Court, per Justice B.N. Srikrisna, observed:
"The power of entering into a treaty is an inherent part of the sovereign power
of the State. É. The executive power of the Union is vested in the President and
is exercisable in accordance with the Constitution. É"
These above observations are per incuriam for reasons, inter alia,
the following:
(1)
This Hon'ble Court went wrong in relying on Lord Atkin's observations as the Privy
Council was considering the British position, and not the provisions
analogous to what we have under our Constitution. He himself made this reservation
by observing:
"In a unitary State whose Legislature possesses unlimited powers the problem
is simple. Parliaments will either fulfill or not treaty obligations imposed upon
the State by the executive.
(2)
It is a patent mistake to consider the Executive as the exclusive repository of
unbridled power at the international plane in entering into a treaty, or an agreement,
or arrangement. It is correct that every State possesses treaty-making capacity.
The Executive is as much an organ of the State as is the Legislature or Judiciary.
It is true that the Treaty-making capacity is generally exercised by the Head
of the State or its government. But both the domestic law and international law
treats the Executive as an authorized organ which can run the risk of acting
without capacity if it goes in breach of the constitutional limitations on its
capacity. Oppenheim observes
[51]
:
"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."
(3) "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."
(4) 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.
(5) 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"
(7) Nothing turns on the idea that power of entering into a treaty is an 'inherent
part of the sovereign power of the State". The sovereign power of our State
is
structured under the Constitution. We have permitted the Executive to exercise
Treaty-making power 'subject to the provisions of this Constitution". Even
if
our Parliament wants to play its legislative role (as was done by the U.S
Congress in making the Uruguay Round Agreement Act), it must act 'subject
to
the provisions of this Constitution". The Executive cannot, transgress
fundamental constitutional limitations.
(8) If the Executive is granted unbridled power at the international plane
to act as
the legitimate surrogate of the State itself, the consequences would be
disastrous. If it so happens, perish the thought, the Executive, already
subservient to corporate imperium under the U.S hegemony,may through
Treaty
terms do away with our Supreme Court ( this reductio ad absurdum
has already
taken place to some extent) can grant legislative powers to the creatures
beyond
our ken, and constitute corporate oligarchy on the wreck of our democracy.
This
Petitioner quotes again what Bronowski said in the Ascent of Man:
"There are many gifts that are unique in man; but at the centre of them all,
the root from which all knowledge grows, lies the ability to draw conclusions
from what we see to what we do not see."
(9) Even the U S Supreme Court has observed in Hamdan's Case, decided
in June, 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.]
(10)
'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 organiztions,
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.'
[52]
Under the Constitution of India there is no provision for limitations on
the national sovereign powers of our State.
(11)
While appreciating the above-mentioned points, none should lose sight of a historic
fact that if Parliament ends, if this Court goes, the Executive would lose nothing,
rather it would gain everything that it lost over centuries of democratic struggle.
Even if Parliament goes or becomes inert, even if our Superior Courts lose everything
which has made them the protectors of the Constitution ( and so of democracy),
the Executive would remain embodying in itself all the legislative and judicial
powers as it was during the times of the Stuarts or before. After a lot of research
this Petitioner submits that at present there is a global conspiracy against democracy
of the sort our Constitution contemplates. Power is most delicious to the executive.
There is nothing like a ' democratic executive'. Lust of power is chronic. The
lust begets enchanting delirium that the wielder of power is the wisest. Then
the go-getters abound. Constitutional discipline is subverted. The learned ignoramuses
become grand wordsmith for them. History tells us that when such things happen
democracy and constitution expire. A Constitution tames the executive by subjecting
it to the Rule of Law.
(m)The Ambit of Art 253 of the Constitution
Shah J. in his separate but concurrent opinion in Maganbhai
observed:
"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,
the Parliament alone has, notwithstanding Article 246(3), the power to make laws
to implement the treaty, agreement or convention or any decision
made at any international conference, association or other body. In terms,
the Article deals with legislative power; thereby power is conferred upon the
Parliament which it may not otherwise possess. But it does not seek to circumscribe
the extent of the power conferred by Article 73. If, in consequence of the exercise
of executive power, rights of the citizen or others are restricted or infringed,
or laws are modified, the exercise of power must be supported by legislation :
where there is no such restriction, infringement of the right or modification
of the laws, the executive is competent to exercise the power."
It is most respectfully submitted that as the aforementioned observation is
obiter. The
Supreme Court did not consider the following relevant points:
(a)
The point to be seen is whether the Executive is free from all constitutional
limitations when it signs and ratifies a Treaty. If it is even then subject to
constitutional limitations, any departure by it from the peremptory constitutional
norm affecting competence, would surely render the Treaty ultra vires.
(b)
As the exercises of all legislative power, and all executive power are subject
to constitutional limitations, the exercise of such powers, with reference to
Art. 253 would clearly be subject to constitutional limitations.
(c)
If a treaty or Agreement at any international deliberative forum is done in breach
of fundamental constitutional limitations, such a Treaty or Agreement is ab
initio void: it dies at its nativity itself. Hence nothing survives
to be given an effect under Art. 253 of the Constitution. The logical principle
that nothing comes out of nothing ( ex nihilo nihil fit ) applies.
(d)
In Ajaib Singh v. Punjab AIR 1952 Punj 309 (321) [ reversed on other points
in, by State of Punjab v. Ajaib Singh AIR 1953 SC 664] held that despite
Art. 253, other provisions of the Constitution , such as Fundamental Rights, cannot
be violated in making laws. Again, no cession of Indian territory can be made
without amendment to the Constitution.
[53]
(e)
Assuming arguendo that a Treaty or Agreement is valid, yet the Executive
power would not extend to implement it by invoking Art. 253 the Constitution,
as it cannot be contemplated that it was ever contemplated that the federal features
can be knocked down by side winds.
(n) The government of India's position on its Treaty-making Power
The Government of India's position on its Treaty-making power communicated
to the Secretary General of the U.N. in 1951
[54]
2.
Parliament has not made any laws so far on the subject, and , unrtil it does so,
the President's power to enter into treaties (which is after all an executive
act) remains unfettered by any "internal constitutional restrictions.
3.
In practice, the President does not negotiate and conclude a treaty or agreement
himself. Plenipotentiaries are appointed for this purpose , and they act under
full powers issued by the President. It is, however, the President who ratifies
a treaty.
4.
Apart from treaties made between heads of States, agreements of technical and
administrative character are also made by Government of India with other governments.
Such agreements are made in the name of the signatory governments, and are signed
by the representatives of these governments. Full powers are granted , ratification
is effected on behalf of the Government."
Commets on the Government of India's communication to the the Secretary
General of the U.N. in 1951
Some comments deserve to be made on this statement of the Indian law stated
to the Secretary General of the UN:
(a). Our Executive Government did not refer to the specific constitutional
limitations on India's Treaty-Making Power; hence an important truth was culpably
suppressed.
(b) Para 1 of the said statement avoids the constitutional restrictions, but
merely refers to the MODE and style of the exercise of the executive power.
(c ) It evaded reference to other material Articles of our Constitution with
an unworthy motive to project the Indian Executive as a carbon copy of the British
monarch of the Tudor Times; (and theoretically speaking even thereafter).
(d) The Government's following assertion in the said Statement is extremely
sinister. It says:
"Parliament has not made any laws so far on the subject, and , unrtil it does
so, the President's power to enter into treaties (which is after all an executive
act) remains unfettered by any "internal constitutional restrictions."
In short, the Executive Government claims to possess an extra-constitutional
power in its hip-pocket. The lust to play the Grand Mughal is evident in such
words.
(O). THE LATEST DECISION OF DELHI HIGH COURT REJECTING OUR GOVERNMEN'S POSITION
Writ Petition WP (C) No.1357 of 2007 (SHIVA KANT JHA Vs UNION OF
INDIA) decided the Delhi High Court on November 11, 2009
The Delhi High Court held:
"7. One of the serious challenges sought to be raised by the petitioner is
that the system of governance in our country has to be satisfied on the touchstone
of the Constitution. The Parliament, the Executive and the Judiciary are all creations
of the Constitution which is supreme. It is, thus, the submission of the petitioner
that it can never be pleaded on behalf of the respondents or portrayed in different
forums that this basic touchstone is not to be satisfied while entering into international
treaties. In this behalf the petitioner seeks to refer to the principle of "Reductio
ad absurdum" to canvas the proposition that where one assumes a claim for the
sake of argument and derive an absurd or ridiculous outcome then the natural conclusion
is that the original claim must have been wrong as it led to an absurd result.
As an illustration the petitioner submits that could an executive through a treaty
establish any highest legislative or judicial body for India in some foreign land
whose writ would run on the constitutional organs of the Republic India or could
as per treaty terms our President or the Prime Minister be bidden to stand on
the Bench at the command of any foreign power. The petitioner has also referred
to the report published as "Report of the Peoples' Commission on GATT" on the
constitutional implications of the Final Act embodying the results of Uruguay
Round on Multilateral Trade Negotiations.
8. The petitioner has drawn our attention to Chapter 7 of this report which
deals with the Constitutionality of Final Act. It is the submission of the petitioner
that due weightage ought to be given to this report compiled by three retired
Judges of the Supreme Court and one retired Chief Justice of the High Court. The
various aspects of the Constitution including in respect of federalism have been
emphasized in this chapter. The Constitution like that of the US has been observed
to have remarkable feature of review by judiciary as a basic structure of the
Constitution and thus it has been observed that GATT Rules cannot supplant or
supplement or even dilute the hard constitutional law of India with the Supreme
Court of India remaining supreme and its writ not being whittled down by agreements
entered into by the Union of India with other countries. There is also a discussion
about the advisibility of the treaty power of Central Government to submit to
the Parliament lest Parliament be reduced to a powerless talking shop by a shrewd
cabinet which presents a fait accompli to the House which may bark but not bite.
9. In our considered view, the admissibility of a procedure to be devised where
such a treaty is to be placed before the Parliament or requiring its approval
is a matter to be left to the Government and the Parliament. It would not be within
the domain of exercise of writ jurisdiction under Article 226 of the Constitution
of India of this Court to issue any direction in that behalf. However, insofar
as the fundamental question of any act of the Government in pursuance to an international
treaty resulting in violation of any provision of the Constitution or not satisfying
the test of being in compliance with the doctrine of basic structure is concerned,
the respondents do not even dispute the said position and have drawn our attention
to their counter affidavit where while dealing with the treaty making power of
the Union executive and the Parliament it has been stated in para 1 "it is humbly
submitted that the Government of India can only enter into a treaty in conformity
with the constitutional provisions laid down in the Constitution of India".
CRITICISM OF THE HIGH COURT'S VIEW
The Hon'ble High Court discussed the "Chapter 7 of this report which
deals with the Constitutionality of Final Act" "compiled by three retired Judges
of the Supreme Court and one retired Chief Justice of the High Court" but failed
to adjudicate on the issues pertaining to the conformity of certain provisions
of the WTO Treaty to our Constitution.
The Hon'ble Court erred in not noticing an obvious mistake in the Judgment
of the Hon'ble High Court. The Hon'ble High Court went wrong in stating that it
'considered' "the admissibility of a procedure to be devisedÉ." as its view could
not be "considered" as it treated itself bound by bound by the observations in
Azadi Bachao.. And in Azadi Bachao this issue had not even been
raised: hence the observation on this on this point in the impugned Judgment was
wholly casual and based on the Judges' impermissible private research.
The Hon'ble High Court went wrong in thinking that it " would not be
within the domain of exercise of writ jurisdiction under Article 226 of the Constitution
of India of this Court to issue any direction in that behalf." The Hon'ble High
Court missed to notice that there were better constitutional reasons under
our Constitution (than under the U.S Constitution) to assume jurisdiction over
the issues presented. In the USA The Supreme Court held in Reid v. Covert
[ILR 24 (1957) p. 549] '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."
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 ConstitutionÉ..."
Specifically examining in terms of our Constitution the Peoples' Commission
Report on GATT [by V R Krisna Iyer, O Chinappa Reddy, D A Desai and Rajinder
Sachar (all the former Hon'ble Judges)] in the Chapter 7 of the Report, to which
the High Court refers in the impugned Judgment, squarely answers the doubt of
the Hon'ble High Court: to quote ---:
"The Supreme Court has the constitutional duty and responsibility, since judicial
review has been entrusted to it as a constituent power to review the acts done
by the executive or legislature under the Constitution within the applicable parameters.
The Supreme Court has the duty and responsibility to ascertain the extent and
limits of the power of the executive and the legislature."(at p. 142)
"While it is arguable that since treaties do not give rise to enforceable
obligations within the Indian legal system, there is no room for judicial interference
until legislation is passed; and, further-flowing from this argument - since
Parliament will assess the situation when enacting implementing statutes, there
is no scope for the judiciary to intervene. This argument proceeds on the fallacious
assumption that treaties do not pose a danger to the constitutional system and
fundamental rights until they are given shape in the form of legislation. Treaties
are solemn obligations. Within their own legal context - and the domain
of international law - they are legal and binding on the Union of India
and States. They cannot be resiled from even if legislation implementing them
is not passed. The consequences of treaty violation are in the realm of international
law. Particular treaties may contain vigorous forms of enforcement. They may prove
to be self fulfilling (even though they are not self executing and applicable
in the domestic legal system). Treaty violations may bring reparations and trade
distortions. In this day and age where the international order is increasingly
regulated by multi-lateral treaties, there is little protection from the falsely
comforting thought that treaties do not pose a threat since Parliament has to
pass implementing legislation to make the treaty enforceable within the Indian
legal system. Each situation has to be dealt with on its own. There can be no
hard and fast rule that the treaty making power can never be subject to judicial
review. There may be something in the nature of a treaty, something about the
manner in which it is negotiated, something about its inevitable consequences
and something about its impact on governance that may call for interference. At
one level, the judicial power may simply ordain lifting secrecy 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.
The Uruguay Round is one of the most important treaties signed by the Indian
Government since independence. It raises very fundamental questions about Indian
federalism, the welfare State, fundamental rights and the functioning of the Indian
democracy. Let us examine the basic structure questions in so far as they affect
federalism." (at p.143)
The High Court's reasoning is vitiated by apparent contradictions which
render its decision ex facie erroneous and unsustainable. It refers in
para 9 of its Judgment to the expression "any act of the Government in pursuance
to an international treaty"; and it t supports its reasoning with reference to
the Respondent's admission in their Counter-affidavit stating:
"it is humbly submitted that the Government of India can only enter into a
treaty in conformity with the constitutional provisions laid down in the Constitution
of India"'.
The flaws in the High Court's reasoning are many: to mention a few---:
(i) The High Court missed to notice that "formation" and "implementation"
of a treaty are two distinct acts of the Executive, one at the international plane
and the other in the domestic sphere. This distinction had been drawn by Lord
Atkin in Attorney General for Canada v. Attorney General for Onterio
[55]
, reserving the 'formation' of a treaty in the "Executive's sphere",
and the implementation of the treaty subject to Parliamentary control whenever
the treaty provisions violated law of the land, or provided benefits to the subjects,
or subjected them to burdens. . The High Court failed to see that that dichotomy
does not operate under our Constitution as the total field of Sovereignty is subsumed
under our Constitution which contemplates 'entry' anf 'implementation' under Parliament's
domain. When the Delhi High Court refers to "any act of the Government in pursuance
to an international treaty", it refers to the stage of 'implementation' , and
not the stage of 'formation' or 'entry'. But the word used in the Counter-Affidavit
is 'enter', i.e. 'formation'. The High Court became, it is submitted, seems
to become more Executive Minded' than the Executive.
(ii) The Court failed to see the contradiction in what the Union Government
stated in its Counter-Affidavit and what it asserts its position on the issue
elsewhere. The Hon'ble Court went wrong by not evaluating this assertion in the
Counter-Affidavit with reference its assertions to the UNO. Our Executive Government
had gone to the extent of communicating to the Secretary-General of the UNO that
"the President's power to enter into treaties (which is after all an executive
act) remains unfettered by any "internal constitutional restrictions." The
expression "in pursuance" can contemplate a pre-existing treaty, whereas "enter"
in the Counter-Affidavit would include the Executive's act even of entering into
a treaty at the international plane. This circular had been placed before the
High Court in course of hearing. The Union of India lied in stating in its Affidavit
that "the Government of India can only enter into a treaty in conformity with
the constitutional provisions laid down in the Constitution of India" though its
real position was as stated in[ U.N. Doc. ST/LEG/SER.B/3, at63-64 (Dec. 1952)
(Memorandum of April 19, 1951): "the President's power to enter into treaties
(which is after all an executive act) remains unfettered by any "internal constitutional
restrictionsÉ..". Under our Constitution 'entering into' (formation) and 'implementation'
are both within the domain of Paarliament (vide the entry 14 in the 7th
Schedule) unlike the United Kingdom wherein formation of of treaty done
in exercise of a prerogative power.
(p) Universal Notice Presumed
It has been submitted, on the authority of Oppenheim's International
Law, that even in the matter of treaty-making constitutional limits of competence
cannot be transgressed. Besides International law permits no derogation from jus
cogens. 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. The doctrine that fraud unravels is the very jus cogens
in the jurisprudence of international law. "Because of the importance of rules
of jus cogens in relation to the validity of treaties, Article 66(a) of
the Convention provides for the compulsory jurisdiction of the International Court
of Justice (unless the parties agree to arbitration) over disputes concerning
the interpretation or application of Article 53."
[56]
In International Law, nations are assumed to know where the treaty-making
power resides, as well as the internal limitations on that power.
[57]
J. Mervyn Jones in his article on "Constitutional Limitations on Treaty-making
Power" examines the effect of constitutional limitations.
[58]
Two important English writers support the view that constitutional limitations
are completely effective under international law
[59]
. It is time to give democratic orientation to international law.
[60]
The New Encyclopedia Britannica
[61]
aptly observes:
"The limits to the right of the public authority to impose taxes are set by
the power that is qualified to do so under constitutional law... The historical
origins of this principle are identical with those of political liberty and representative
government—the right of the citizens."
It would be contrary to our Constitution to grant the Executive "extra-constitutional
powers". David M. Levitan has put it felicitously when he observed: "Government
just was not thought to have any "hip-pocket" unaccountable powers".
[62]
Willoughby has pointed out that the foreign states are held to have a knowledge
of the location of treaty making powers. [Willoughby's The Constitutional Law
of the United States, p. 528, ] The effect of the elaborate discussion by
Willoughby is thus stated by H.M. Seervai : "In International Law, nations are
assumed to know where the treaty-making power resides,
as well as the internal limitations on that power. [Seervai's Constitutional
Law of India, vol- I, pp. 306-307] This rule puts all the contracting parties
under public notice of the manifest constitutional limitations. It is a manifest
limitation under our Constitution as much under the British Constitution that
a treaty affecting taxation can not be done in exercise of power under the executive
domain.
Under a democratic polity structured under constitutional limitations, the
Executive would not be competent even at the international plane to incur obligations
which can expose the State to the commission of defaults under international law.
There is a vast jurisprudence on the Principle of International Responsibility
The widely known and implemented rules are: "(1) the breach of any international
obligations constitutes an illegal act or international tort, and ( 2 ) the commission
of international tort involves the duty to make reparation."
[63]
But to-morrow there may emerge, or be created, international criminal jurisprudence
to take punitive actions for breach of such obligations. And it may not be mere
morbid phantom of surcharged brain to think some day a foreign power to protect
the interests of some MNCs may exercise power, overt or covert, to pressurize
our country with coercion and sanctions on the ground of the breach of treaty
obligations incurred by the Executive. No democratic polity in the present globalized
world would consider it proper.
( q) On Parliamentary Approval
In February, 1992, Shri M.A. Baby, Member of Parliament, Rajya Sabha gave
a notice of his intention to introduce the Constitution (Amendment) Bill, 1992
to amend Article 77 of the Constitution of India providing that "every agreement,
treaty, memorandum of understanding contract or deal entered into by the Government
of India including borrowing under article 292 of the Constitution with any foreign
country or international organization of social, economic, political, financial
or cultural nature and settlements relating to trade, tariff and patents shall
be laid before each House of Parliament prior to the implementation of such agreement,
treaty, memorandum of understanding, contract or deal and shall operate only after
it has been approved by resolutions of both Houses of Parliament". Shri Baby spoke
passionately in support of the said Bill pointing out in particular the adverse
consequences flowing from the several WTO Agreements signed and ratified by the
Government in 1994 without reference to the Parliament. Shri Pranab Mukherjee,
M.P. argued, and stressed the following points:
(a) Parliamentary approval leads to complications. He referred to the Treaty
of Versailles, negotiated by President Wilson, which was rejected by the U.S.
Senate.
(b) If two treaties signed between India and Nepal on harnessing water resources
of Mahakali and other rivers and the other with Bangladesh on sharing of the Ganga
waters would have been referred to Parliament, it would have been extremely difficult
to obtain such approval or ratification in the prevailing circumstances.
(c ) GATT/WTO Agreements, signed and ratified by the Government of India,
can be implemented only by Parliament by making a law in terms of the agreement
as provided by Entry 14 of List I of the Seventh Schedule to the Constitution
read with article 253.
(d) The Parliament is not so constituted as to discuss the international treaties
and agreements in an effective manner.
(e) One of the reasons for the success of European Union and ASEAN as 'economic
blocs' is that the decision makers of the constituent countries, i.e. their executives,
are by and large free to take decisions in matters of common interest.
(f) Under our present system of Parliamentary Government, executive has to
render continuous accountability to Parliament; and that the Parliament can always
question the acts and steps taken by the Government.
Each one of the aforesaid points are absurd amounting not only to the contempt
of Parliament but an insult to India's citizenry who are present in Parliament
through their Representatives
[64]
. Though such comments deserve to be dismissed from any serious consideration,
yet as an act of deference to the speaker, and also to show how with what little
awareness great issues are handled, it is worthwhile to advert to them economizing
with words, but not with truth:
(i)
Under the Treaty of Versailles, which concluded the World War I, Germany was put
on the mat under the spiky boots of the rapacious victors. After vivisecting Germany,
the victors stripped the great country of its honour. 'Article 227 through 230
gave the Allies the right to try individual Germans, including the former emperor,
as war criminals.' And Japan signed the Treaty of Surrender, after being trounced
and pulverized after atomic bombardment, on September 2 in Tokyo Bay aboard the
battleship USS Missouri concluding the World War II. Humiliation of the nation
was accepted in the mood of utter frustration, and sheer helplessness. Such treaties
as these are done on the wreck of constitutions. The vanquished nations owe their
existence of Statehood to the mercy of the rapacious victors. It is, hence understandable,
why the western jurists (including Oppenheim) ignore the Treaty of Versailles
from their work on treaties. Such treaties are not treaties; they are the ruthless
impositions of cruel terms on hapless nations.
(ii) The U.S Congress showed great sagacity and political insight in rejecting
the Treaty of Versailles from which cauldron emerged the evil forces which pushed
Europe to a delirious destruction of the Second World. It was this decision of
the Congress which saved America from President Wilson, "the blind and deaf Don
Quixote"
[65]
. It was this refusal which saved Wilson from the culpable idiocies of Gorges
Clemenceau of France, who had " one illusion -France; and one disillusion
--mankind"
[66]
, and David Lloyed George of Britain, "this half human visitor of our age"
[67]
, who wove the web for the destruction of Europe through the Treaty of Versailles.
Whilst Europe was busy making noose to hang itself, America was relaxing and equipping
itself to become the master of the whole world as it has become. John Maynard
Keynes, who was himself associated with what was happening in the Hall of Mirrors,
at the Palace of Versailles, wrote his Economic Consequences of Peace.
He made out a point that this Treaty gave rise to Hitler, who couldn't have taken
control of Germany without the wide resentment against this Treaty. Shri Pranab
Mukherjee should have appreciated the U.S Senate which saved its country from
the foolish errand of Wilson. This Petitioner would have been infinitely grateful
to our Parliament if it could have told the Executive, while the Uruguay Round
Final Act was in the air, THIS FAR, AND NO FURTHER.
(iii) That, often our Government feels that hurling a few ideas in the public
domain is enough. The right course should be place the draft of a treaty for popular
consideration, and deliberation by Parliament. Besides, there are special reasons
why treaties with great socio-political impact be done with popular consent. How
could a governmental functionary saddle this country with a treaty so noxious
as the Uruguay Round Final Act? Why should we allow the Executive Government to
enter into deals which may become the counterparts of the Entente and the Alliance
which endeared themselves to the executive governments working for self-destruction
on way to the second World War. Our world is more fragile. The clouds of the Third
World War are gathering fast. If in this era of critical development, we fail
to shape the laws to respond to the challenge, (perish the thought,) our political
institutions would perish in a surrealistic delirium when persons right, and persons
wrong, would face the same Fate. We apprehend that the years ahead may not be
much different from what Galbraith has said:
"Here another great constant in economic life: as between grave ultimate disaster
and conserving reforms that might avoid it, the former is frequently preferred".
[68]
How can this great nation be allowed to become, through an executive act,
a foreign country's, or institution's bleating little lamb tagged behind on a
lead , pathetic and supine, consoling herself with an idea, minted in a much different
context, that the executive is absolute at an international plane?
(iv) That it was wrong to say that the other treaties to which he referred
could not have been considered by Parliament. The real problem with the Executive
Government, like the passionate misdirection of Wilson, was that it wanted them
to be done somehow for purposes not all worth appreciation. History proves that
Parliament and people are right more often than the Executive with its hubris
for power. The criticism, hence, is totally misconceived.
(v)
No comments is worthwhile. The Executive government can implement treaty obligations
within its executive field which is much wider than the legislative field. Besides,
through treaty commitments the Executive can coerce Parliament to fall in line
with it. Such things, in the context of the Uruguay Round Final Act, have already
taken place. The haplessness with which our Parliament enacted Amendments to the
Patent Act is a case of point. We lost our case before the WTO's DSB, and its
Appellate Forum. Our Parliament had to bend. Virtually it ceased to be sovereign.
Again, we removed the Quantitative Restrictions on agricultural products after
having lost Case before the DSB and its Appellate Forum. These are the well-known
instances. Many things much worse might be happening under the opaque administrative
syste.
(vi) Whenever the WTO is criticized for being an undemocratic institution,
its proponents stress eloquently that the Uruguay Round Final Act was accepted
by the nations with the approval of their democratic legislative agencies. This
is a dressed-up argument. There are good reasons to believe that our Executive
imposed on the nation a treaty about which itself did not know much.
(vii) The idea that Parliament is not so constituted as to discuss the international
treaties and agreements it is not correct. If Britain could deliberate in its
Parliament whether it was right to declare a war, there was no reason why the
text of the Uruguay Round Final Act couldn't have been placed before Parliament
for an in-depth scrutiny, or why the text of the Indo-US Nuclear deal cannot be
examined threadbare by our Parliament. It has already been pointed out how decision
to go the Second World War was taken by Parliament, and not by the Crown. A.J.P.
Taylor describes the difference between the ways the First and the Second World
Wars were declared by the U.K. Besides Shri Pranab Mukherjee's argument brings
to mind what the destroyers of the Weimer Constitution had said about Parliament,
or what Bismarck said about the German Diet before it was all gloom.
(viii) What would facilitate the formation of an economic bloc is a pet idea
of the corporate conspirators ruling the Economic Realm, which in this era of
the Bretton Woods institution and the Washington Consciousness, has subjugated
the Political Realm. The argument smacks of the smugness of the compradors who
work for the neo-colonialists, and neo-capitalism.
(ix) If our Constitution would have trusted the Executive wholly it would not
have made it an institution with granted powers, and it would not have prescribed
the Fundamental Rights. In this era of Economic Globalizaton, the executive leadership
in Parliament may mean nothing but the triumph of corporate oligarchy. True there
was a phase when the executive led Parliament. Now the executive is itself led
by the corporate imperium.
Such criticism should not have been inflicted on Parliament by one who evaluated
the Treaty-Making Procedure under our constitutional frame-work with reference
to the Treaty of Versailles. The nation knows what is wrong with our Parliament,
and surely
some day, ways would be found/forged to set the institution right. But this
does not prove the point Pranab Babu was making. It is true that things are moving
from bad to worse. This is inevitable, says Erich Fromm in his The Sane Society,
in the mass society which turns man into a commodity; 'his value as a person lies
in his saleability..'. This is also inevitable in capitalism as, says Tawney in
his Acquisitive Society, capitalism is, at bottom, incompatible with democracy.
This is also because of the compradors and the lobbyists, about whom Vance Packard
wrote his triology: The Hidden Persuaders, The Status Seekers, The
Waste Makers, rule the roost. This is also because the Rise of the Meritocracy,
about which Michael Young has written setting his account in 2034, has led to
trends towards eugenic nonsense and monstrosities, which would create the new
lower classes -by definition stupid --- without leadership worth the name
, and that the new IQ-rich upper classes would soon devise ways to keep themselves
in power. The waxing corporate imperialism has already made our best talents exportable
merchandise, and our nation would have to manage with left-overs. Even if all
these happen our hope is only through Parliament. In 1915 Einstein wrote to Lorentz
in Holland "that men always need some idiotic fiction in the name of which they
can face one another. Once it was religion, now it is the State". On scanning
the present realities, shouldn't we say: "Once it was religion, then it was the
State, now it is the Market, Pax Mercatus". Market is ruled by corporate oligarchy
with which, as indicated by the treaties being done, our government has a clear
symbiotic relationship.
That sidetracking Parliament and people in a democratic country, with a structured
constitutional polity, is not only a betrayal of the people's trust reposed through
the Constitution, but is also a tale of evasions of reality. Our Constitution
has not enacted the ideas of a Friedeich von Hayek, or a Milton Friedman in the
solemn and sonorous words of the Preamble, the Fundamental Rights and the Directive
Principles of State Policy.
Our nation tolerated with almost tongue-tied patience the Uruguay Round Final
Act, for which even our Executive expressed some insincere remorse. But the fortitude
of our people, and the melodrama of the Executive have facilitated the conclusion
of a Treaty no less momentous, for good or bad, for our country: the Singapore
Comprehensive Economic Cooperation Agreement (CECA) which deals with subjects
as comprehensive and as important, as those dealt with in the Uruguay Round Final
Act:
Trade in Goods, Rules of Origin, Customs, Mutual Recognition Agreement on
Conformity Assessment, Investments, Trade in Services, Air Services, Movement
of Natural Persons, E-Commerce, Intellectual Property Cooperation, Science &
Technology Cooperation, Education, Media Cooperation, Dispute Settlement, any
many others.
The strategy is to establish the government of the rich, by the rich, and for
the rich by destroying the stature of this Republic, by diluting its constitutional
commitments. China created Two Systems in one country through steps like SEZ,
our Government is creating Two Indias in one country by resorting to steps which
include grant of corporate zamindari exempt from the operation of various laws.
Besides, the CECA establishes a clear subservience to the WTO institutions, and
it goes to adopt analogous Dispute Settlement mechanism, Disputes pertaining to
the DTAA can also agitated before the Council of Trade in Services by either country
as per the footnote to Para 3 of Article XXII of GATS.
But our citizenry has hope from people and its highest Court of Justice. Concluding
his Modern Democracies (Vol II p. 670 ) Lord Bryce perceptively observed:
"Hope, often disappointed but always renewed, is the anchor by which the ship
that carries democracy and its fortunes will have to ride out this latest storm
as it has ridden out many storms before."
(r ) CONCLUSION
(i)
Recommendations by the National Commission to Review the Working of the Constitution
The National Commission to Review the Working of the Constitution has made
a number of valuable suggestions after considering our Constitutional parameters
[69]
: a few of them are set forth as under:
(1)
The first thing that should be done by Parliament is to make a law on the subject
of "entering into treaties and agreements with foreign countries and implementing
of treaties, agreements and conventions with foreign countries" as contemplated
by Entry 14 of List 1 of the seventh Schedule to the constitution. The law should
regulate the 'treaty-making power' (which expression shall, for the purpose of
this discussion, include the power to enter into agreements and the implementation
of treaties, agreements and conventions).
(2) There is an urgent and real need to democratize the process of treaty making.
Under our constitutional system, it is not the prerogative (if we can use that
expression) of the Executive In a democracy like ours, there is no room for non-accountability.
(3) The power of treaty-making is so important and has such far-reaching consequences
to the people and to our polity that the element of accountability should be introduced
into the process.
(4) The exercise of power must be open and transparent (except where secrecy
is called for in national interest) - what was called by President Wilson
of USA, "open covenants openly arrived at".
(5) We may have already suffered enough by entrusting that power exclusively
to the Executive. They do not appear to have been vigilant in safeguarding our
interests, at least in some instances.
(6) Law must provide for clear and meaningful involvement of Parliament in
treaty-making. As has been done in some countries, there must be constituted a
committee of Parliament to whom every treaty/agreement/convention proposed to
be signed and/or proposed to be ratified shall be referred.
(7) While placing the draft/signed treaty before such committee, a statement
setting out the important features of the treaty/agreement, reasons for which
such treaty/agreement is proposed to be entered into, the impact of the treaty/agreement
upon our country and upon our citizens, should be clearly and fully set out. The
committee would be a statutory committee clothed, of course, with all the powers
of a Parliamentary Committee.
As a matter of fact, it would equally be desirable if the law made by the
Parliament categories the treaties/agreements/conventions/covenants viz., (a)
those that the executive can negotiate and conclude on its own and then place
the same before both Houses of Parliament by way of information. In this category
may be included simple bilateral treaties and agreements which do not affect the
economy or the rights of the citizens; (b) those treaties etc. which the executive
can negotiate and sign but shall not ratify until they are approved by the Parliament.
Here again, a sub-categorisation can be attempted: Some treaties may be made subject
to approval by default (laying on the table of the House for a particular period)
and others which must be made subject to a positive approval by way of a resolution;
(c) important, multi-lateral treaties concerning trade, services, investment,
etc. (e.g. recent Uruguay round of treaties/agreements signed in 1994 at Marrakesh),
where the Parliament must be involved even at the stage of negotiation. Of course,
where a treaty etc. calls for secrecy, or has to be concluded urgently, a special
procedure may be provided, subject to subsequent Parliamentary approval consistent
with the requirements of secrecy.'
The Constitutional Review Commission made two very relevant suggestions:
1. 'The Parliament may consider enacting suitable legislation to control and
regulate the treaty-power of the Union Government whenever appropriate and necessary
after consulting the State Governments and Legislatures under article 253 "for
giving effect to international agreements'.
2.
In order to reduce tension or friction between States and the Union and for expeditious
decision-making on important issues involving States, the desirability of prior
consultation by the Union Government with the inter-State Council may be considered
before signing any treaty vitally affecting the interests of the States regarding
matters in the State List.
(ii) Suggestions on Treaty-Making Procedure given by the People's Commission
The Peoples' Commission on Patents Laws for India
[70]
made the following suggestions on the Government's treaty making power:
"In the light of the above, it is recommended:
(a) Whilst the treaty making power (Article 73 read with List 1 entries 13
and 14) vests in the Union and requires legislation in order to translate the
treaty into validly enforceable law (Article 253), the treaty making power cannot
be seen as a law unto itself, but must operate within the discipline of the Constitution.
This is all the more important because the world is being increasingly governed
by treaties, which are being enforced through their own mechanisms, and by intense
social, economic and political pressure.
(b) The discipline of the Constitution requires that the Union government,
which is the exclusive repository of the treaty making power, cannot, and should
not, enter into treaties which undermine the Constitution.In particular, treaties
would be violative of the Constitution if they affect or infringe fundamental
rights or affect matters which are in the exclusive concurrent domain of the States
(Lists II and III) or affect the secular and socialist dimensions of the Constitution
(see Preamble and Articles 38, 39 and 51 of the Constitution amongst other articles
of the Directive Principles).
(c) Procedurally, before a treaty (especially a multilateral treaty) is signed
it is imperative that it should be (i) placed for discussion before parliament
with full particulars (ii) placed within the public domain for discussion (iii)
circulated to the States for their opinion and discussion and (iv) not confirmed
until and unless this discussion is over. This exercise necessarily needs to be
repeated as further issues arise in respect of any one treaty.
(d) Parliament needs to set up a special treaties committee which earmarks
treaties for consideration and ensures that the public, federal and parliamentary
process is compiled with specially listing areas for confirmatory procedures.
(e) There is nothing in the Constitution which forbids this process being
regulated by statute which should be enacted."
[71]
[ italics supplied].
(iii) This Petitioner's Suggestions on valid Treaty Making Procedure
This author makes the following suggestions for bringing about changes in our
Treaty-making procedure:
(i) Treaties which modify or override the domestic laws must be ratified only
after Parliament's approval through a legislation, or on a resolution by the Lok
Sabha (the way a tax treaty is done in the U.K.).
(ii) Treaties of domestic operations, affecting the areas for legislative operations
under the entries in the Seventh Schedule, should be ratified only after Parliamentary
approval is accorded or the bill is enacted as an Act.
(iii) Treaties affecting constitutional provisions, other than those affecting
the basic features of the Constitution should be made only after obtaining an
advisory opinion of the Supreme Court thereon as to its constitutional validity.
(iv) Treaties, which affect the basic features of our Constitution, should
be subjected to popular referendum, after obtaining the opinion of the Supreme
Court thereon, before they are ratified.
The following two comments are also worthwhile:
(i)
If the procedure of reference to the Supreme Court is to be avoided, then a treaty
should be ratified after Parliamentary approval accorded in each House by a majority
of the total membership of that House and by a majority of not less than two-thirds
of the members of that House present and voting.
(ii)
Our Constitution does not prescribe recourse to referendum. But people's claim
that such treaties be decided through a referendum emanates from the very fact
that 'We, the people' have adopted, enacted and given to ourselves the Constitution.
Whatever protocol of referendum is chosen it must be an effective plebiscitary
device to support the terms of a contemplated treaty. As Chief Justice Marshall
could hold in Marbury v. Madison
[72]
that the power ofJudicial Review emanates from the judicial oath taken
under a written constitution with entrenched rights, so should our courts and
our Parliament see the legitimacy of this procedure in the fact that, when all
is said, political sovereignty inheres in the people of India.
The adoption of the above-suggested procedure would help our country to withstand
the pressures to which it is subjected in handling the international negotiations.
If a particular draft treaty is not approved per procedure described above, the
government would have no option but not to proceed further. "This would put the
onus on the rest of the members of the WTO to accommodate us and modify the take-it-or-leave-it
character of the Uruguay Round package."
[73]
This would make the process of treaty making transparent, and democratic.
This would help our government to answer effectively the predatory international
financiers that the executive government of India
works under constitutional limitations, which it cannot evade. An idea must
be drummed into the ears of all, that obligations under a treaty should neither
be created in darkness, nor carried out under an opaque system. This would put
every body under notice that ratification as such does not entitle anybody to
any legitimate expectation before the treaty's incorporation into domestic law
as per procedure suggested. This procedure would inhibit the executive from taking
things for granted.
[1]
AIR 1969 SC 783
[2]
AIR 1937 PC 82
[3]
AIR 1969 SC 783 (para 30 & 81)
[4]
AIR 1964 SC 1043
[5]
Gujrat v. Vora Fiddali (1964) AIR, SC 1043
[6]
A.G. of Israel v. Kamiar ILR 44
[7]
Oppenheim's International Law 9th ED p. 79
[8]
AIR 1937 PC 82
[9]
AIR 1969 SC 783 (para 30 & 81)
[10]
Laker Airways Ltd v. Department of Trade [ 1977 ] 2 All 2 All ER 182
AT 192-193
[11]
[1964] 2 All ER 348
[12]
[1969] 1 All ER 629 at 637
[13]
Fact-sheet P14: Procedure Series: Revised June 2003: House of Commons Information
Office http;//www.parliament.uk/directories/hcio.cfm 5 July 2006
[14]
Oppenheim's International Law 9th Ed Vol I Peace p. 60-61
[15]
A.J.P. Taylor, English History 1914-1945 (Oxford) p.2
[16]
quoted from De Republica Anglorum 48-9 in G. R. Elton, The Tudor
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[18]
252 US 416, 64 L.Ed. 641 (1920)
[19]
Oppenheim's International Law - Vol.1 Part 2 & 4 pg.1288
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[20]
McNair, pp. 76-77
[21]
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[22]
[1941] 35 American Journal of International Law p.462
[23]
Hall and Oppenheim
[24]
Schuckking and Wehberg refereed by Charles Fairman in his article 30 A.JIL
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[25]
Vol.28 p.402:
[26]
The Yale Law Journal Vol. 55 April, 1946, No 3 p. 480
[27]
ibid p. 102
[28]
Misuse of a tax treaty violates the Standard of Economic Good Neighbourliness.
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[29]
The Oxford Illustrated History of English Literature ed. Pat Rogers
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[30]
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[31]
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[32]
Jayantilal Amritlal v. F.N. Rana AIR 1964 SC 648
[33]
Shiva Kant Jha, The Judicial Role in Globalised Economy p.
[34]
At p. 140 of the Report
[35]
K. C. Wheare, Constitutional Structure of the Commonwealth p. 89
[36]
Constituent Assembly, Rules of Procedure and Standing Orders Chapter
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[37]
The Yale Law Journal VOL 55, April, 1946 No 3 page 467 referring to
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W.B. Cowles, Treaties and Constitutional Law (1941)
[38]
ibid 497
[39]
Michael D. Ramsey, 'The Myth of Extra constitutional Foreign Affairs Powers"
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[40]
3 Howell's State Trials 45 (1627)
[41]
Bernard Schwartz, Some Makers of American Law Tagore Law Lectures
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[42]
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[43]
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[44]
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[1905] 2 KB 391
[47]
[1938] 4 All ER 786 at 790
[48]
AIR 1969 SC 783
[49]
AIR 1937 PC 82
[50]
2003-(263)-ITR -0706 -SC
[51]
ibid p 1232 para 606
[52]
ibid pp. 125-126
[53]
Maganbhai v. UoI AIR 1969 SC 785 (798)
[54]
[ U.N. Doc. ST/LEG/SER.B/3, at63-64 (Dec. 1952) (Memorandum of April 19,
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AIR 1937 PC 82
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ibid 1293
[57]
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[61]
. Vol. 28 p.402.
[62]
. The Yale Law Journal, Vol. 55 April, 1946, No 3 p. 480.
[63]
Georg Schwarzenberger, A Manual of International Law 173
[64]
vide para 31 of the Writ Petition p. 25 citing De Republica Anglorum
48-9 in G. R. Elton, The Tudor Constitution (Cambridge) p. 235
[65]
Keynes, The Economic Consequences of Peace. P. 41
[66]
ibid , p. 32
[67]
Keynes wrote about Lloyd George, in a passage that was deleted in the last
moment, "this goat-footed bard, this half-human visitor to our age from the hag-ridden
magic and enchanted woods of Celtic antiquity" Quoted in Harrod, cited by John
Kenneth Galbraith, A History of Economics, The Past as the Present. P.
230
[68]
John Kenneth Galbraith, A History of Economics, The Past as the Present.
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. Chairman: Shri I.K. Gujral, the former Prime Minister of India;
and Members: Prof. Yashpal, Prof. Muchkund Dubey, Shri B.L. Das, Dr Yusuf Hamied
and Dr. Rajeev Dhavan
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