Shivakantjha.org - We Demand Answers
We Demand Answers
(An Aspect of the 123 Agreement)
Part II
By Shiva Kant Jha
AS a citizen of the Republic of India I demand
answers from our Government created under the Constitution which "We, the
People" have given to ourselves. As the scope of this article is merely
to highlight the various controversial ( if not untenable) assumptions and suggestions
emanating from the presidential text, quoted above, no attempt is made to see
how these ideas turn out when examined in the context of the 123 Agreement under
which what is not stated is no less important than what is stated. Words are
often used as an instrument of concealment. S.T. Coleridge counseled us that
whilst reading Dryden, Pope, etc we must " measure time" to discover
meaning. We live through the most testing moments in human history, when it
is most imprudent to forget 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."
What will happen if the terms of Indo-US Understanding are
read in the light of the directives and norms prescribed dexterously in the
Atomic Energy Act 1954 and the above-mentioned Hyde Act? Such terms are to be
read in the light of the Vienna Convention on the Law Treaties especially Articles
31 and 31incorporating the doctrine of travaux preperatoires (preparatory materials).If
what the US President has asserted is rejected by a future President, or if
the Congress asserts its constitutional power to implement the mandate under
these Acts, or if such views, as are taken by the President , are not acceptable
to the US Supreme Court upholding the Constitution of the country by telling
the President something else, what will happen? I know what is the most important
constitutional principle for all times: that no government of a given moment
can bind the future governments (the executive, legislature, and judiciary),
because, if that happens, such governments would cease to remain sovereign,
and the icy hand of the past would strangulate the political institutions of
future date leaving to such generations no option but to draw on their ultimate
and unalienable ultimate power to effect a revolution.
Our government may persuade itself to believe, illustrating
the slave's syndrome, that independence is not worth a fig in the present day
world with the U.S. as the hegemone, and the Pax Mercatus calling shots everywhere,
and ruling the roost. But we demand answer to questions a few of these are as
follows:
1. Can it move the Supreme Court of India or the U S Supreme
Court if the US Acts and global policies act as concealed references and the
Procrustean bed to the detriment of India? India will have no locus standi in
the USA.[we have already some cases in the books of International Public Law
where our government failed in showing even that level of knowledge without
which one cannot get even pass mark in some muffasil university: to mention
one to illustrate, Government of India v. Taylor (27 ITR 356 HL)]. And our Supreme
Court may tell (I wish this never happens in a considered judgment) the government:
We decline to exercise our power of judicial review in such matters. In fact
it is reported in the Times of India of August 4, 2007 as a PIL that a Bench
of our Supreme Court said: "The country can enter into any treaty with
another nations, It is beyond the realm of judicial review."
2. Can we move any international tribunal for a remedy if we
stand ditched under the throes of the Deal? First, none exists to provide this
sort of remedy. Second, the USA treats international law its own prerogative
to promote its interests. Michael Glennon writes that now the " whole frame-work
of international law is just "hot air"; and also that 'The grand attempt
to subject the rule of force to the rule of law" should be deposited in
the ashcan of history." It high time, if we have any concern for our nation
still left, to unlearn Article 51© of our Constitution, as we are now in
the late seventies, not the late forties. International Law is now neither international,
nor public, nor law.
3. Can we succeed through diplomatic channels? To expect this
is unwise knowing how our diplomats in recent years have worked, and given account
of themselves. They have no compunction in making hay while the marketization
begotten by the Economic Globalization rules and reigns supreme. Art 3 of the
Vienna Convention on Diplomatic Relations of 1961 adopted by the UN Conference
on Diplomatic Intercourse and Immunities prescribes as one of their functions:
"protecting in the receiving State the interests of the sending State and
of its nationals, within the limits permitted by international law".
4. Can we get over the morbid doctrine of caveat emptor ( Let
the buyer beware) in framing a treaty-contract when we rely on this insidious
doctrine to fleece the innocent investors on the stock-markets which generates
wealth for the dwellers of the cloud castles, but takes the shirt off the backs
of the denizens of the earth? The plight is best portrayed in the immortal words
of Blake:
Some are born to great delight,
Some are born to eternal light.
5. A deal which has a devastating effect on most souls of our
country will be devoid of all moral authority if it is not approved by Parliament
after full consideration. What is Parliament? In De Republica Anglorum , Sir
Thomas Smith had perceptively said in 1565 on Parliament in words which have
never turned stale: he said--
"And, to be short, all that ever the people of Rome might do either in
Centuratis comitiis or tributes, the same may be done by Parliament of England
which representeth and hath thepower of the whole realm, both the head and body.
For every Englishman is intended to be there present, either in person or by
procuration and attorneys , of what preeminence, state, dignity, or quality
soever he be, from the prince ( be he king or queen) to the lowest person in
England. And the consent of the Parliament is taken to be every man's consent"
6. Why should the country be exposed to the evils of secret
diplomacy promoted through secret treaties? What happened to the very first
of the 14 Points; "Open covenants of peace, openly arrived at, after which
there shall be no private international understandings of any kind but diplomacy
shall proceed always frankly and in the public view"? Why should we take
massive strides, through a structure of deception, towards the World War III?
True that in the Second World War, the real winner was the USA, bur who has
now the assured insight to say that it won't descend into the Slough of Despond?
And under the operative realities of our times it is not difficult to realize
that once caught in the octopus-grip of the obligations flowing from an open
ended treaty of this sort, there would be no exit left, and we would reap the
consequences of our morbid actions and culpable inactions.
7. One thing as a sequel to point 6 above, if the governments
of democratic country invites a disaster through its hubris or idiocy, the civilians
would cease to have a good case for protection provided to them by the Laws
of War. If the citizenry of a country allows their government to run amuck,
should they escape the brunt of the cruise missile or the thermonuclear onslaught?
Why should such things be allowed to happen? For whom? With what prudence? Byron
said:
A thousand years scarce serve to form a State,
An hour may lay it in the dust.
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