Shivakantjha.org - Conclusion of the Series
Conclusion of the Series
(An Aspect of the 123 Agreement)
Part XI
By Shiva Kant Jha
And oftentimes, to win us to our harm,
The instruments of darkness tell us truths,
Win us with honest trifles, to betray’s
In deepest consequence.
-- Shakespeare, Macbeth:
I
After writing all the other article of this series Mr. B K
Keayla, the Convenor of the National Working Group of Patents (of which organization
Justice V. R. Krishna Iyer is the Patron) sent me an attested copy of ‘A Joint
Statement by Justice V.R. Krishna Iyer, Justice P.B. Sawant and Justice H. Sawant…on
“the Power of the executives with reference to the Indo-US Nuclear Deal”’. They
had been great judges of our Superior Courts. This author is delighted to find
that his view finds support from what these eminent persons have said. Their
views deserve to be read closely as they have meticulously examined the provisions
of the Indo-US Nuclear Deal. Their opinion has two segments: one which states
the law governing Treaty-Making Power in India; the other, the nature of the
123 Agreement, and its constitutionality. To quote their views on these two
segments in extenso:
(i) On the competence and power of Treaty-Making.
1. The Executive has no power to enter into any agreement,
either with a foreign government or a foreign organization, which is binding
on the nation. The agreement will be binding only when it is ratified by Parliament…There
is no provision in the Constitution which gives such authority to the executive.
We have a written Constitution and, therefore, we must have a written provision
in the Constitution which gives such authority to the Executive.
2. Articles 73 and 253 and entries 6, 13, & 14 in the
Union List of the Constitution refer to the powers of the Executive. Article
73, among other things, states that, “…the executive power of the Union shall
extend (a) to the matters with respect to which Parliament has powers to make
laws, and (b) to the exercise of such rights, authority and jurisdiction as
are exercisable by the Government of India by virtue of any treaty or agreement.”
This means that the matters n which Parliament has no powers to make laws are
also matters on which the Union Government cannot exercise its executive power.
It also means, conversely, that the Union Government cannot exercise its executive
powers beyond the legislative powers of the Union. Both these propositions have
an underlying assumption that, before the Union Government exercises the executive
power, there is a law enacted by the Parliament on the subject concerned. Some
argue that the provisions of Article 73(1)(a) gives power to the Executive to
act on subjects within the jurisdiction of Parliament, even if the Parliament
does not make a law on those subjects. This is both a distortion and a perversion
of the said provision and a subversion of Parliament’s supreme control over
the Executive. If this interpretation is accepted then the Union Executive can
act on all subjects on which Parliament has to make law, without there being
any law made by Parliament. You can thus do away with Parliament and the Parliament’s
duties to make laws. We will then have a lawless Government. Democracy presumes
there should be a rule of law and all Executive actions will be supported by
law and that there shall be no arbitrary action by any authority, including
the Union Executive. It may also be necessary in that connection to remember
that it is for this very reason that when Parliament is not in session and,
therefore, unable to enact a law, that the power is given to the President to
issue an ordinance (which is a law), so that the Executive may act according
to its provisions. These ordinances are to be placed before the Parliament within
six weeks of its reassembly, and if Parliament approves they become law. The
Constitution-makers were, therefore, clear in their mind that the Executive
cannot act without the authority of law and it has no power independent of law
and it has no power independent of law made by Parliament.
3. “Article 253, which is relevant in the context of the present
Indo-US nuclear deal, is very specific on the subject. It says, “Notwithstanding
anything in the foregoing provisions of this chapter, Parliament has power to
make any law ---for implementing any treaty, agreement or convention with any
other country or countries or any decision at any any international conference,
association or other body.” This article gives specifically the power to the
Parliament to make laws on treaties, etc. with other governments or even on
decisions made in international conferences, etc. This makes it clear that even
the treaties, etc. entered with other countries or decisions made at international
conferences have to be translated into laws and read with the provisions already
discussed above, before they are acted upon by the Executive.
4.The Union List Entry –6 makes “Atomic energy and mineral
resources necessary for its production” a subject matter of legislation of the
Parliament. Similarly, Entry—13 which reads, “participation in international
conferences, associations and other bodies and implementing of decisions made
thereat” and Entry –14 which reads, “entering into treaties and agreements
with foreign countries and of implementing of treaties, agreements and conventions
with foreign countries” make them also subject matters of legislation by the
Parliament.”
(ii) The constitutional validity of the 123 Agreement.
5. “All these provisions make it abundantly clear that the
present Indo-US deal cannot be implemented by the Union Government unless it
is translated into law enacted by Parliament. Any action, therefore, taken by
the Union Government to implement the said deal without the authority of the
Parliament is un-Constitutional, because it amounts to the usurpation of the
Parliament by the Union Executive. It is also undemocratic because the Union
Executive will be acting arbitrarily, trampling both the rule of law and also
the wishes of the people of India. It will be nothing short of an arbitrary
rule by the Executive, leading to an un-Constitutional government in the country,
because what is arbitrary is also unconstitutional.
6. With regard to the Indo-US nuclear deal, it may be stated
that, on the face of it, it is subject to the internal laws of both the countries,
namely India and the U.S. Article 2.1 of the 123 Agreement states in the clearest
possible terms, “Each Party shall implement this Agreement in accordance with
its respective applicable treaties, national laws, regulations and license requirements
concerning the use of nuclear energy for peaceful purposes.” { Section 102(13)
of the Hyde Act: “the United States should not seek to facilitate or encourage
the continuation of nuclear exports to India by any other party if such exports
are terminated under United States law.}
This means that the 123 Agreement is subject to all the present
internal laws of the US government, right from the US Atomic Energy Act 1954
to the Hyde Act 2006, all inclusive. Not only that, but it will be subject to
amendments to these present laws and to any new law that may be enacted in the
future. The position is further made clear also by Articles 3.3 and 5.2 of this
agreement. Article 3.3 states, “This agreement does not require the transfer
of any information regarding matters outside the scope of this agreement, or
information that the Parties are not permitted under their respective treaties,
national laws, or regulations to transfer”. Article 5.2 states, “ ---Transfers
of dual-use items that could be used in enrichment, reprocessing or heavy water
production facilities will be subject to the Parties respective applicable laws,
regulations, and license policies.” What holds good for Article 2.1 holds also
good for these two provisions as well.
7. Furthermore, Article 5.6 (a) of the agreement clearly states
that “As part of its implementation of July 18, 2005 Joint Statement, the US
is committed to seeking agreement from the US Congress to amend its domestic
laws and to work with friends and allies to adjust the practices of the Nuclear
Suppliers Group to create the necessary conditions for India to obtain full
access to the international fuel market, including reliable, uninterrupted and
continual access to fuel supplies from firms in several nations,” In view of
this statement in the 123 Agreement dated August2007, it is clear that before
the US is obliged to act under this agreement in so far as assured and continual
fuel supplies are concerned, the US Administration will have to approach the
US Congress to get their present laws, including the Hyde Act 2006, amended.
It is unfortunate that the Government of India is rushing through this deal
even before the US has got its laws, including the Hyde Act 2006, amended to
assure life-time uninterrupted fuel supplies, under all circumstances, for the
nuclear reactors we intend to import. As it stands, the 123 Agreement of August
2007 does not in any way provide binding fuel supply assurances.”
Note: the words within {} are additions by this author.
II
This author had examined the Central Government’s Treaty-Making
power in the context of the Double Taxation Avoidance Agreements and the Uruguay
Round Final Act in two of his published books: (i) Judicial Role in Globalised
Economy (2005)[Chapters 15, 17, and 18] and Final Act of WTO: Abuse of
Treaty Making Power (2007) [Chapter 1], and also in an article on the ‘Treaty-Making
Power’ now on his website www.shivakantjha.org.
This author is glad that his view stands wholly supported
by the views of the three former learned Judges of our Superior Courts.
This author considers it unnecessary to summarize what this
author has tried to make out in all the articles of this series on the Indo-US
Deal, as their effect finds precise expression in the second segment of the
statement of the three eminent former Judges, quoted above. All the articles
of this series are on this author’s website.
This author thinks that he must clarify, and point out that
he is not one of those whose views are being criticized in the first segment
in these words:
“ Some argue that the provisions of Article 73(1)(a) give
power to the Executive to act on subjects within the jurisdiction of Parliament,
even if the Parliament does not make a law on those subjects.”
This is borne out by by his assertions in his Writ Petition
CWP (PIL) NO. 1357 of 2007 before the Delhi High Court which has issued rule.
Clarifying the scope of the said Writ Petitioner, the Petitioner sated:
“2.That this writ petition brings certain matters to the
attention of the Hon’ble Court:
(i) to vindicate the Rule of Law to get the unlawful conduct
of the administrative authority stopped seeking, in public interest , the
issuance of appropriate directions, orders or writs in the nature of mandamus
or declaration to the Central Government so that the executive acts, ultra
vires the Constitution of India, are stopped; and
(ii) to vindicate the supremacy of the Constitution of
India by assailing certain administrative acts and statutory provisions
as they appear to be ex facie ultra vires on account of their being
in breach of the Fundamental Rights and the Basic Structure of the Constitution.”
“3. That the core issue in this Writ Petition questions
the abuse of the Treaty-Making Power by the Executive-government causing cussed
breach of the mandatory constitutional commands which are peremptorily binding
on the Central Government as they govern its competence both at the international
plane while forming a treaty, and in the domestic jurisdiction whilst implementing
that. It is submitted that the Central Government has no extra-constitutional
power to be exercised at international plane de hors the mandatory
constitutional and statutory provisions. The Executive, being a creature of
the Constitution with only conferred power, cannot violate our Fundamental
Rights, nor can with treaty-terms shed-off legislative or judicial power in
favour of foreign body. No treaty can empower the Executive to enter into
a treaty to subvert a statute, and to cause discrimination inter se
the citizens and the foreigners (also non-residents). The impropriety reaches
its climax when this is done through acts without statutory foundations thereby
making them without jurisdiction; and it reaches its gruesome apex when the
deeds are crafted in an opaque system without even Parliament knowing them.”
This Petitioner’s position in nutshell, in the context of
this Writ Petition (and within the constraints of its scope) are set forth under
the heading ‘the Petitioner’s core legal propositions constituting legal perspective’
The text of the Writ Petition can be accessed at the author’s website [http://www.shivakantjha.org/openfile.php?filename=pil/pil.htm].
But he does feel that the broad, but a fundamental principle of general application
within the frame-work of the Constitution of India, has been felicitously and
concisely stated in the afore-mentioned statement with which he wholly agrees.
III
The objective of this author in writing these articles is
only to help public opinion evolve on an important issue in which we all are
commonly interested.. Public Opinion, which Sir Ivor Jennings considers the
supreme pre-condition for the working of a democratic constitution, is at present
in our country neither vigilant nor well informed. This author has tried to
do a little in the matter. This author has exercised his democratic right to
weigh the public acts of the stalwarts of our day. In R. v. Cmmr of Police
Ex p Blackburn (No 2) [1]
Salmon L.J. had aptly said:
“It is the inalienable right of everyone comment fairly
upon any matter of public importance. This right is one of the pillars of
individual liberty--- freedom of speech, which our courts have always unfailingly
upheld… The criticism here complained of, however, rumbustious, however wide
of mark, whether expressed in good taste or in bad taste, seems to me to be
well within (the limits of reasonable courtesy and good faith).”
[2] .
And Edmund Davies L.J. highlighted, in his characteristic
style, the reach and importance of this right in these suggestive words:
“The right to fair criticism is part of the birth-right
of all subjects of Her Majesty. Though it has its boundaries, that right covers
a wide expanse, and its curtailment must be jealously guarded against. It
applies to the judgments of the courts as well as other topics of public importance.”
[3]
T S Eliot refers in Hollow Man says:
Between the idea
And the reality
Between the motion
And the act
Falls the Shadow.
In his most humble way this author has tried to remove the
Shadow which shrouds reality
from public gaze to our detriment. This author would consider
himself rewarded if all
that he has scribbled over these 20 days makes our citizenry
think critically about these issues without pre-conceived notions, without making
stock-responses bred by the systematic disinformation by the Press and the media.
Wendell Phillips (1811-1884) had said, “We live under a government of men and
morning newspaper.” How different are the realities of our day! Alexander Hamilton
called people the ‘great beast’ whom the vested interests would try to see that
it does not stray ‘from its proper confines.’ The ruling syndicate of the global
investors considers the common people (the denizens of the ‘Third Estate’) the
“unpeople” on the planet.
The massive media build-up over these days, and the configurations
of pleas crafted around us bring to mind Sidney B. Fay’s analysis of the reasons
for the World War I (things were no different in the context of the World War
II, and , perish the thought, they won’t be much different in case of the World
War III !). The effect of what Fay said is thus summarized by an expert:
“…none of the European leaders had wanted a great war and
[Fay] identified as its deeper causes the alliance systems, militarism, imperialism,
nationalism, and the newspaper press.”
But it is worth recalling what Dr Johnson said: “About things
on which the public thinks long it commonly attains to think right.” This author
would end this section with a quotation from the preface of his book Judicial
Role in Globalised Economy:
‘“Throughout the book I have tried to tread on the straight-line
which Ernest Barker described to Albert Einstein: “If at your command, the straight
lines have been banished from the universe, there is yet one straight line that
will always remain –the straight line of right and justice.” 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”’
They brag that if the Indo-US Deal is delayed or given up,
the image of India as a democracy would suffer. The Indian Prime Minister says
that the whole Deal is non-negotiable. These assertions are most painful to
this author as a citizen of this great Republic. The image of India would emerge
great if on popular demand the government bends, or even breaks. The assertion
by the leader of the Executive that nothing is now negotiable is clearly fascist
in tone. None should forget what the history of India has taught us all: In
India government is optional. Thomas Balogh said in The Irrelevance of Conventional
Economics: ”The modern history of economic theory is a tale of evasions
of reality.” The U.S Congress showed great sagacity and political insight in
rejecting the Treaty of Versailles which saved America from the destruction
of the World War II. President Wilson was dubbed “the blind and deaf Don Quixote”
[4] . 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” [5] , and
from David Lloyd George of Britain, “this half human visitor of our age” [6] , who wove the web for the destruction
of Europe through the Treaty of Versailles. Let not the posterity dub our Prime
Minister an indefatigable Peter Pan the great, and honour President
Bush is as the Global Incubus.
IV
This author has deliberately not focused enough on the plea
that the Indo-US Deal will herald an era of prosperity all round by solving
our energy problems. Experts are divided on the wisdom of the proposed solution.
A lot has been said against the Deal by experts whose credentials must be taken
as established. This author has no competence to tread on the edge of:
“ ….that Serbonian Bog.
‘Twixt Damiata and Mount Cassius old,
Where armies whole have sunk.
Milton. Paradise Lost
“The former chairman of the Atomic Energy Commission P.K.
Iyengar said here on Saturday that India should be extremely careful about the
devices that outside forces were employing to deprive the country of the continued
benefits of its hard-earned achievements in the field of nuclear technology.” [7] ‘Former Director of Bhabha Atomic Research Centre (BARC) A
N Prasad, who was part of IAEA inspection group on Iraq, said from Bangalore
that "passage of the Bill was expected. However, the bill, which has so
many objectionable points in the current form, are not acceptable to India and
requires lot of reconciliation and sanitation." Former Chairman of Atomic
Energy Commission (AEC) P K Iyengar said "they may have done little amendments
in the bill but it does not mean it will favour India in all respects and before
the finalisation, a lot of discussions and debate are required".’
[8] ‘ The nuclear scientists -- Dr H N Sethna, former chairman, Atomic
Energy Commission; Dr M R Srinivasan, former chairman, Atomic Energy Commission;
Dr P K Iyengar, former chairman, Atomic Energy Commission; Dr A Gopalakrishnan,
former chairman, Atomic Energy Regulatory Board; Dr S L Kati, former managing
director, Nuclear Power Corporation; Dr A N Prasad, former director, Bhabha
Atomic Research Centre; Placid Rodriguez, former director of the Indira Gandhi
Centre for Atomic Research and Dr Y S R Prasad, former chairman & managing
director, Nuclear Power Corporation-- said in their appeal that the representatives
in Parliament need to ensure that decisions taken today do not inhibit our future
ability to develop and pursue nuclear technologies for the benefit of the nation.’
[9] ‘The US-China 123 agreement ignores China's proliferation to Pakistan
and Iran and has non-existent safeguards, writes N.V.Subramanian.’ This comments
may be right, may be wrong, but it proves one point: a Parliamentary committee
should examine the issues after listening to the nuclear experts and the international
law experts, and some public-spirited citizens who have thought about the problems
and have the courage and imagination to depose.
It is said that the Agreement with the IAEA is a matter of
fresh negotiations, distinct from the 123 Agreement. But nothing much turns
on this logic. Every Agreement of this efficacy, whether with IAEA or with NSG,
must be done transparently with the approval of our Parliament. And it would
a travesty of our governance if such negotiations are outsourced to the USA,
or the birds of the same feather. For God’s sake let us not build any structure
of deception, even if some has this expertise acquired dexterously from their
stints in the IMF, World Bank, the WTO and their analogues.
They can explore the possibilities of the alternative sources
of energy.
This author believes that all resources are limited, hence the best engineering
to manage our scarce resources is to reduce consumption in the sectors where
plenty of wealth has begotten shameless extravagance and gaudy consumerist culture.
We can cut down our energy requirement in various ways; but to such issues this
author cannot digress in this concluding article. But all these stray ideas
invite us to follow the wisdom expressed in the Rig-Veda which tells
the people congregating for some pious and common purpose:
‘Your purpose of pursuits should be common,
Your mind should be in harmony with all others.
Your heart should bleed for the weal of all
As this alone will herald your welfare. and
And will strengthen the strength of your Union.’
[Translation from Sanskrit by the author]
V
I would end this series of articles with a collage of some
quotations. They are suggestive, and adequately express what my exposition may
not bring wholly home. But this author would leave the issues to be considered
by the readers in the context of what is said in these 4 quotations:
“Here another constant in economic life as between the grave
ultimate disaster and conserving error the former is frequently preferred.”
J K Gailbraith, A Short History of Economics p. 236
“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.”
Bronowski , the Ascent of Man p. 56
“So fear reigned in Europe., and fear is a terrible thing
. Each country went on preparing for war and arming itself to the uttermost….The
big private firms which made armaments ---that….—naturally reaped a rich
harvest and waxed fat. They went further, and actually started war-scares to
induce countries to purchase more and more arms from them. These armament firms
were very rich and powerful, any many high officials and ministers in England,
France, Germany, and elsewhere held shares in them, and were thus interested
in their prosperity………These firms tried other ways also of promoting war expenditure
by different countries. They bought up newspapers to influence public opinion,
and often bribed government officials, and spread false reports to excite people.”
Nehru, Glimpses of World History p. 615
Uddhared atmanatmanam
Natmanam avasadayet
Atmaiva ky atmano bandhur
Atmaiva ripur atmanah.
[Let man lift himself by his own Self alone, and let him not
lower himself; for, this Self alone is the friend of oneself, and this Self
is the enemy of oneself.][The Geeta VI.5
The above quotations have immense potentialities: they express
a lot for our collective weal. Brood over them, and scan the operative realities;
and draw your deductions. Each of the above comes to mind with what we call
in the Mimansa ‘sphota.’ Sphota is the explosion of great idea
in mind. Only such a great sphota if good ideas shape our destiny, and
provide light to tread, and wisdom to lift ourselves. We can afford to forget
only at our peril what Lord Krishna said in the quotation above cited. None
can escape the consequences of his deeds. And here what Shakespeare said in
Macbeth (quoted as an announcement at the top) becomes relevant for all times,
and in all realms.
VI
An Apology
This author’s epilogue to this series of articles ends with
this apology. Some of this author’s friends have shown their discomfort at my
emotionally charged and barbed comments. This author accepts the censure as
this is coming from those who waded through words which compose this series.
This author never intended to slight any body. This author always considers
that reason without emotion is inert and mischievous. He wishes if some of our
countrymen could espouse the public causes with that emotional involvement which
had made Lloyd Garrison, who had espoused the anti-slavery cause, say in his
paper Liberator:
“I will be as harsh as truth, and as uncompromising as justice.
On this subject I do not wish to think, or speak, or write with moderation.
No! No! tell a man whose house on fire to give a moderate alarm; tell him to
moderately rescue his wife from the bands of a ravisher; tell the mother to
gradually extricate her babe from the fire into which he has fallen ---but urge
me not to use moderation in a cause like the present. I am earnest –I
will not equivocate --I will not excuse ---I will not retreat a single inch
---and I will be heard.”
Jai Hind
[1] (1968) 2 QB 150
[2] ibid p 155
[3] ibid p.156
[4] Keynes,
The Economic Consequences of Peace. P. 41
[5] ibid ,
p. 32
[6] 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
[7] http://www.hindu.com/2007/01/28/stories/2007012804520600.htm
[8] http://www.hindu.com/thehindu/holnus/001200611171719.htm
[9] http://in.rediff.com/news/2006/aug/14ndeal.htm
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