- Our treaty-making power in context of Parliamentary debates: Our glorious Peter Pans and Law of Karma

Our treaty-making power in context of Parliamentary debates: Our glorious Peter Pans and Law of Karma

By Shiva Kant Jha

FIRST, I must tender my apology for the sub-title of this article, and all that it suggests. My Peter Pans are those who have not found necessary to grow up jurisprudentially under a democratic society profiled and regulated by our Constitution. Their ideas as to the treaty-making competence are no different from what the imperialists had once taught the vanquished [illustrated in such treaties as the Treaty of Allahabad (1765) whereby the phantom emperor Shah Alam, perhaps unknowingly authorized the East India Company to turn full spree on its commercial brigandage of Bengal leading to the servitude of this country for two centuries; as the Treaty of Versailles, contrived with horrible hubris by Wilson, "the blind and deaf Don Quixote", Gorges Clemenceau who had " one illusion –France; and one disillusion - mankind", and David Lloyd, "this half human visitor of our age" driving Europe to a delirious destruction of the Second World ; as the WTO Treaty (1994) whereby our executive government, operating through an opaque system, transferred much of the legislative functions to the foreign bodies, and stripped off our Supreme Court and the High Courts of their supremacy by commanding them imperatively to conform to the WTO obligations! We have good reasons to apprehend that the time is not far off when our great Constitution would be made subservient to the gladiators of the ruthless and infinitely deceptive ways of the present-day economic globalization where the corporations rule and the political realm is "like a patient etherized upon a table". This topic of our government's treaty-making competence is of the greatest importance as the proponents and the protégées of the present-day economic globalization are erecting, through a structure of deception, a most dangerous and exploitative Pax Mercatus. This article is just an attempt to initiate a debate in the public realm before it is too late.

Before I proceed further I would remind you what some of the luminaries of our public life are reported to have said. Shri Somnath Chatterjee, the Speaker of Indian Parliament, and a barrister of some eminence, is said to have ruled that the Constitution had given the Union government sovereign rights to enter into international treaties. His ruling was that the government does not need parliamentary ratification of these treaties. It is reported that it has fallen from one of the Hon'ble Judges in course of a hearing: "The country can enter into any treaty with another nations, It is beyond the realm of judicial review." (Reported in one National Daily on August 4, 2007.) ‘It is in the public domain that whenever a demand was made as to why not a sense of the House be taken… the Government refused to do it always saying that an international agreement is not put to Parliament. Parliament cannot force us to do anything in respect of an international agreement" said Shri L.K. Advani in course of Parliamentary debate on July 21, 2008. He said that the Government ‘told The Telegraph that sink or survive, the Deal is done. It was told that whether this Government wins the Confidence Vote or not, the Deal is done.' Obviously this illustrates the British view which our Constitution clearly rejects. But was surprising that even Advani went to the extent of saying: "In fact, on the very first occasion I said that the Constitution of India does not provide that an international agreement should be approved by Parliament as in many countries this practice is there. Even in America, it has to be passed by the American Congress. Here we do not have such a provision. But after this experience with the nuclear deal, I am of the view -- if the Government agrees – that the Constitution be amended so that in certain cases relating to security and in certain cases relating to the integrity of the country, the Parliament's approval must be sought before entering into a Deal." Shri Pranab Mukherjee told our Parliament what he had told it in February, 1992 while speaking on Shri M.A. Baby's 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". Parliament has no competence to poke its nose in the matter. On July 21, 2008, he told Parliament: " It is a fact that even an important agreement like the existing Indo-Soviet Friendship Treaty, Parliament came to know of it after 25 years in 1970 when it was announced that an agreement has been signed. I am not going into the merits of the constitutional provisions. But from 26th January, 1950, till today, this is the position." Shri D.P. Yadava (from Jhajharpur) stated the theory so dear to the executive when he told our Parliament on July 21, 2008. With reference to the Indo-US Deal, he said:

Pranab Babu said: "I am not going into the merits of the constitutional provisions". But we must go through the Constitution. All those who matter under our constitutional polity are bound by their oath to adhere to the Constitution by interpreting it on its own terms rather than by making it a sounding-box or the reflecting-mirror of the vested interests howsoever might and dexterous they be. Our Constitution framers had in their collective consciousness the Treaty of Allahabad, and those which invited the two World Wars. Our State's legal Sovereignty reveals itself in the terms of our Constitution alone. Our State has no Sovereign power, unbridled and unlimited, to enter into a treaty even at the international plane; it has only a Treaty-making capacity under the constitutional limitations. As the Executive represents our State at international plane, it acts only as the authorized agent of the State, and as such it is incompetent to transgress the obvious limitations on its power imposed by the Constitution which creates it and keeps it alive only with controlled competence. "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." 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"

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". Even the U S Supreme Court has observed in Hamdan's Case [Hamdan v. Rumsfeld, Secretary of Defense, et al decided by the U.S. Supreme Court on June 29, 2006] that ‘The Court's conclusion ultimately rests upon a single ground: Congress has not issued the Executive a "blank check. [Justice Breyer, with whom Justice Kennedy, Justice Souter, and Justice Ginsburg join, concurring.] Laws LJ, in Thoburn v Sunderland City Council [2003] QB 151, rightly said: "Parliament cannot abandon its sovereignty…"

Now to our Constitution

The Preamble to the Constitution constitutes India a ‘sovereign' country. It creates the organs of our polity and grants them powers. The entire sovereign power is constitutionally controlled, leaving only the principle of independence at work in the comity of nations. The USA got sovereign power from the British Crown, granted through the Treaty of Paris (1783); under our Constitution ‘sovereignty is assumed inherent in ‘We, the People' ‘Sovereignty' is Under our Constitution, ‘sovereignty' is wholly a constitutional declaration to the extent it imposes discipline on all the organs of the State whether they function here, there, or anywhere. In the USA, Justice Sutherland said in the thirties of the last century, in United States v. Curtiss-Wright Export Corporation [299 U.S. 304 (1936) ] expounded that the national government possessed powers completely outside of those in any way assigned to it by the Constitution! This decision was historically wrong, constitutionally unsupportable, logically unsustainable, and was productive of much public mischief. So atrocious was this view, that constitutional amendments were pursued [the Bricker Amendment] to declare the Constitution supreme both at national plane and international plane. The Executive government was all against the proposed amendments. But this grave crisis was solved by the Supreme Court which in in Reid v. Covert (1957) declared that that the United States could not abrogate the rights guaranteed to citizens in the Bill of Rights through international agreements. Justice Hugo L. Black 's opinion for the Court declared:

"There is nothing in [the Constitution] which intimates that treaties and laws enacted pursuant to [it] 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."

I wish that our courts would say the same with much stronger reasons, and with sonority with wide and efficacious impact. In the U K, the constitution is a bye-product of history as the Crown lost only those powers which the legislature and judiciary denied to it over the turbulent centuries of that country. In the USA, whose constitutional protocol provided to a good extent a model to our Constituent Assembly, the constitution framers had to deal with a fundamental question. In the U K. the Attorney-General, addressing the court in the Five Knights' Case (one of the state trials of Stuart England) for the Crown, had asked, "Shall any say, The King cannot do this? No, we may only say, He will not do this." 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. We have done precisely the same under our Constitution. But for the ideas of equality and independence under the international constitutional law, our sovereignty can never be jeopardized, nor our sovereign space trespassed. Without this, the mission of our constitutional socialism, as envisaged the Fundamental Rights and the Directive Principles, cannot be achieved; and we would be moving headlong to be trapped under the Sponsored State syndrome.

It is a point of seminal importance that under our Constitution wherever power is given to the Executive, its exercise is made subject to our Constitution. Art. 53 provides that the executive power is to be exercised "in accordance with this Constitution". Our Constitution does not entrust to the executive any hip-pocket with unbridled power to be exercised with impact at the international plane, but having inevitable impact in the domestic sphere of a democratic polity. Art. 73, which prescribes the ambit of the executive power, states in clause (a) that the ‘the executive power of the Union shall extend to the matters with respect to which Parliament has power to make laws…". It expressly implies that all the limitations, to which the legislative powers are subject, supremely control the exercise of the executive power. In effect, the treaty-making power is subject to the limitations governing the competence of the executive. Hence, it can be said that the Executive cannot violate Fundamental Rights, the Basic Features of our Constitution, and other constitutional imperatives governing the competence of the Executive. This writer wholly agrees with what Justice V.R. Krishna Iyer, Justice P.B. Sawant (the former Judges of the Supreme Court) and Justice H. Suresh, a former Judge of Bombay High Court, had said in their ‘Statement on the Powers of the Executive with reference to the Indo-US Nuclear deal':

"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 on 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."

Art 253 of the Constitution does not warrant a different view. As the Executive works under the constitutional limitations, any departure by it from the peremptory constitutional norm affecting competence, would surely render the Treaty domestically inoperative to the extent of transgression. 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], the Court held that despite Art. 253, other provisions of the Constitution, such as Fundamental Rights, cannot be violated in making laws.

Art. 245, which prescribes the extent of laws made by Parliament and by the Legislatures of the States, subjects the exercise of legislative powers "to the provisions of this Constitution". Art. 246, which prescribes the continuance of the laws existing before the commencement of our Constitution, says that ‘all the laws in force in the territory of India ….shall continue in force therein until altered or repealed or amended by a competent authority." In short, all the seminal provisions subject the exercise of public power to complete constitutional control. The organs of the State are prohibited through the constitutional provisions to transgress them on any plea. In the context of the US Constitution, Justice Holmes, in Missouri v. Holland [252 U S 416 (1920)], observed that the impugned treaty was to be sustained as it did not ‘contravene any prohibitory words to be found in the Constitution.' In our Constitution prohibitions are prescribed comprehensively. After all the framers of the Constitution knew history enough not to do anything else. Our Constitution is unique for one more reason. It does not have express provision for limitations on their national sovereign powers in the interest of international co-operation. Oppenheim, International Law ( Peace) pp. 125-126 very perceptively observed:

‘A number of states in their constitutions have made express provision for limitations on their national sovereign powers in the interest of international co-operation. These provisions are to the effect that certain sovereign rights and powers of the state may be limited in connection with international organizations, or may be conferred upon or transferred to international organizations. This has particularly become necessary in some states whose constitutions provide for certain rights and powers, for example the power to legislate, to be exercised only by organs of the state: by becoming a member of an international organization which can in some degree be said to be exercising such powers, the state, in absence of a provision envisaging a transfer of those powers, could be said to be acting unconstitutionally and the resulting exercise of the powers by the organization could be said to be ineffective within the state.'

The grant of the legislative power under entries 6, 10, 11, and 14 in the 7th Schedule to the Constitution of India shows that the constitutional limitations under our Constitution work both in matters of the treaty formation, and the treaty implementation. The opinion of Lord Atkin ( in Attorney General for Canada v. Attorney General of Ontario) on the possibilities of different approaches in the aforementioned two segments are right under the British constitution but invalid under our Constitution for numerous reasons including the express indication in the narration under entry 14 of the Union List which suggests that our Constitution contemplates within its matrix both the formation (entering into) and implementation of a treaty. Lord Atkin himself observes that different considerations would be at work in a federal polity and under a system of governance under a written constitution with express constitutional limitations.

These constitutional fundamentals are yet to be taken into account by our Superior Courts. It is for them to consider the constraints and culture of our polity as structured by our Constitution. "The modern rule". Stephension LJ quoted the illuminating comment of Lord Alverstone CJ, in West Rand Centrla Gold Mining Co v R [1905] 2 KB 391:

"…any doctrine, so invoked must be one really accepted as binding between nations, and the international law, sought to be applied must, like anything else, be proved by satisfactory evidence which must shew either that the particular proposition put forward has been recognized and acted upon by our own country, or that it is of such a nature, any civilized state would repudiate it. …. But the expressions used by Lord Mansfield when dealing with the particular and recognized rule of international law on this subject, that the law of nations forms part of the law of England, ought not to be Construed so as to include as part of the Law of England, opinions of text-writers upon a question as to which there is no evidence that Great Britain has ever assented, and a fortiori if they are contrary to the principles of her laws as declared by her Courts."
The tsunami of economic globalization has subordinated the political realm to the economic realm established under the overweening majesty of Pax Mercatus. Geza Feketeluty has brought out this reality thus:

"Clearly, the reality of globalization has outstripped the ability of the world population to understand its implications and the ability of governments to cope with its consequences. At the same time, the ceding of economic power to global actors and international institutions has outstripped the development of appropriate global political structures."

It is worth noting that our Superior Courts are yet to declare law governing the ambit of the Executive government's competence for treaty-making. The observations of Justice Shah in Maganbhai v. Union, repeated often casually in many decisions, are casual obiter, and hence do not declare law under Article 141 of our Constitution. The treaty-making power, as such, was not under consideration in that case. The dispute about the boundary between India and Pakistan in the Rann of Kutch, which had led to an armed conflict, was brought to an end by referring the dispute to an International Tribunal, by whose award both countries agreed to be bound. The issue was decided in view of the International Award. The observations on the treaty-making power were casual as the issue did not turn on Treaty-Making power. In Ranchhoddas Atmaram v. Union (AIR 1961 SC 935). our Supreme Court held that the observations in three of its decisions were not binding as "the question was never required to be decided in any of the cases and could not, therefore have been, or be treated as decided by this Court." The Supreme Court is re-iterating a classic view on the point. Salmond has stated the correct legal position thus:

"For the fundamental notion is that the law should result from being applied to live issues raised between actual parties and argued on both sides…In course of his judgment, however, a judge may let fall various observations not precisely relevant to the issue before him…. Here of course, since the issue is not one that arises between the parties, full argument by counsel will be lacking, so that it would be unwise to accord the observation equal weight with that given to his actual decision."

We hope that before all is over our Superior Courts will apply their judicial minds to the issues relating to the Government's treaty-making power. We hope, and hope, and hope.

The Grammar of our democratic Constitution

It is said that in Maganbhai, our Supreme Court benedicted the notion that a specific legislation is needed only where expenditure from public fund is required, or where there is any encroachment on private rights. Even this casual obiter of our Court is open to serious criticism. First, it is founded on the view of Sir R. Phillimore in The Parlement Belge , which expresses the British view in tune with the Westphalian political arrangement which does not survive now. Second, such observations are per incuriam as our Constitutional provisions were neither argued nor judicially considered. Third, Maganbhai was decided in the sixties of the last century when the political realm dominated the economic realm, when International Law was not a supine instrument in the hands of the economic imperialism promoted by the corporations, and organizations under the U S hegemony economic imperialism. Now we live in a world in which the executive acts, done at the international plane, seep into domestic sphere to act often as catalytic agent, but most often as prime over and operative force, mostly, now, through the executive process. The realities of our are captured in the following lines from Noam Chomsky's Hegemony or Survival (p. 13):

‘The whole frame-work of international law is just "hot air", legal scholar Michael Glennon writes: ‘The grand attempt to subject the rule of force to the rule of law" should be deposited in the ashcan of history –a convenient stance for the one state able to adopt the new non-rules for its purposes, since it spends almost as much as the rest of the world combined on means of violence and is forging new and dangerous paths in developing means of destruction, over near-unanimous world opposition'"

This article does not provide scope to stretch the point any more. But a few points to suggest that we live in times not within the ken of anybody who had quoted The Parlement Belge. The effects of the TRIPS are certain coerced legislation, certain defeats at the WTO's Disputes Settlement Body, ouster of the jurisdiction of our Superior Courts, encroachment on our Sovereign Space, infraction (accomplished/threatened),…creation of inter-governmental fora to implement the TRIPS agenda without the nation knowing (the technique of Stealth) [crafted through the memorandum of understanding], censure and command under the U.S. Trade Act of 1974, which puts India on Priority Watch List in 2006, in words with which only a country under seize can put up. We are mandated: "The United States also encourages India to join and implement the WIPO Internet Treaties." Even our judiciary is told how to behave. Under the U S Trade Act 1974 Trade Representative can initiate action against India for punitive retaliation etc. if he is of opinion that our Government has violated a trade agreement (such as a World Trade Organization (WTO) agreement or the North American Free Trade Agreement. That Act even says ". An act, policy or practice is considered to be unreasonable if it is unfair and inequitable, even if it does not violate the international legal rights of the United States." And all this to help the MNCs and to promote their agenda.

It would be absurd to tell us that whilst our private rights can be disturbed only through law, but the public power can be outsourced even to some faceless corporations in the Bahamas or Mauritius, or the USA. The people of India have vital interests in our democratic polity as we have construed it through our Constitution. People are vitally interested that neither our constitutional commitments be revised, nor they be given up, nor our Parliament be made an institution of a Sponsored State, nor our Superior Courts be ever made, in certain areas of litigations, mere executing courts with residuary jurisdiction, nor our Public Opinion be controlled and conditioned by the wealth of the corporate brigands whose most powerful weapon of subversion is ‘corruption', the vishkanya of our times. Let everyone who matters know that in the history of India governments, in the Westphalian sense, have always been optional; and that the Sone ki Lanka is always a subject, to say in the words of William Shakespeare, ‘where wasteful Time debateth with decay to change your day of youth to sullied night'

One more cobweb must be removed. There is in some minds a romantic illusion that as the Executive is accountable to Parliament, and leads it on vital matters, the act of the executive, under our system of Parliamentary government, might be considered the act of Parliament. Often certain observations of Mukherjea J. in Ram Jawaya Kapur v. Punjab (AIR 1955 SC 549) are relied on. Assuming that some nuggets to support the above view can be derived from this decision of the Supreme Court, this view is wholly anachronistic now, if not entirely incorrect. First, the obiter in Ram Jawaya Kapur is a mere statement of the pragmatic politics deduced from the seeming realities in certain phase of Parliamentary government in England. It reflects the point of view of a student of political science, rather than of an expert in the constitutional law of India. Second, the Executive in our country is a creature of the Constitution only with granted power without any competence to transgress limitations on its treaty-making competence. Third, what was being done through the treaties in the fifties of the last century is much different from what is being done these days, and what can be dome when all institutions become market-friendly on the wreck of our Constitution mummified and animated to deceive ‘We, the People'.


And now permit me to test my points on reductio ad absurdum. But how to go about this exercise. Black's Law Dictionary says that it is Latin for ‘reduction to the absurd'; and it is "in logic, disproof of an argument by showing that it leads to a ridiculous conclusion". Do not think that I enjoy my trip from sublime to ridiculous without rhyme or reason. I would pose a set of questions, some of which will nauseate you, and you may wonder how can one, in his lucid moments, even think of posing such questions as I am going to do. In fact, if you find swinish bad odour in them I would be most delighted because then you have surely got me in the round. I could have stated my points in simple assertive sentences, but to add vinegar to this chicken-soup, I would cast them in rhetorical questions. You reflect over them, and think, think, and think to act, act, and act. To avoid repetition, I would refer the above questioned views as "the questioned view".

1. Can the Executive, through treaty terms, saddle this nation with an obligation to conscript its young men and women to combat for the ‘strategic partners' to sacrifice themselves for the ignoble cause of protecting the economic interests of the Pax Mercatus promoted and protected by corporate imperium? What if "We, the People" are used this way?

2. Can the Executive, through its treaty-making power, introduce corporate zamindari more noxious to the dignity and culture of the common men to turn into slaves by gladly putting the organized rural culture into flame for a few chips to be looted again by the pretending benefactors, or for a few petty jobs which can turn them as serfs of the Third Estate?

3. Can the Executive through some special purpose vehicle, crafted under a treaty (like the Uruguay Round Final Act), reverse the entire gamut of agricultural restructuring as contemplated under our Constitution.

4. Can the Executive, through a treaty (like the Uruguay Round Final Act), establish any highest legislative or judicial body for India in some foreign land whose writ would run on the e constitutional organs of the Republic of Bharat?

5. Can our Supreme Court be turned under treaty terms a subordinate court with residuary jurisdiction, and to function as the executing court for the decisions at foreign fora?

6. Can through treaty terms the highest judicial power be outsourced to the Privy Council again, or some Al Qaeda corporation in the Bahamas or Honduras or Mauritius?

7. Can through treaty terms our President, or the Prime Minister be bidden to stand on the Bench at the command of George W. Bush or Candoleezza Rice, something analogous to what befell to the Indonesian President in recent years?

8. Can the Executive enter into some Understanding or Additional Protocol or an India-specific Agreement to send all our good looking boys and girls to gladden those whose happiness can bring massive FDI, hot money to this country giving our people the satisfaction of having the best trajectory of industrial growth through the simple act of procreation?

9. Can the Executive, through some treaty terms promoting the trade and services under the WTO regime, stipulate that, as the old and the decrepit persons are not market-friendly, their organs be extracted and excavated for supply abroad, and their flesh be sold in flashy containers in foreign markets to augment foreign exchange reserve for the chosen few to follow rain-bow in foreign lands and cloud-castles? [ Who can doubt this wisdom when the experts in trade and services have demonstrated, through statistics and graphs, that the deluxe segments of homo economicus are fast developing cannibalistic taste for the Third Estate chickens?]

10.Can the Executive, through terms, oblige our country become a dumping ground to conserve the fruits of noxious deeds on or underneath our soil to alter the conditions of our existence to turn us morons or sick for whom life would be more agonizing than death?

11. Can, through some treaty terms, all wealth be turned into digital money to be amassed in the cyberspace, with their beams in the opaque tax havens, or in the banking system which has become a willing instrument under the rogue financial system of our times?

13. Can, through terms, our Executive conduct secret alliances and diplomacy to get inducted into strategic unlimited partnership, thereby driving our country headlong on the road to perdition leaking us our final annihilation the Third World War?

15. Can the Executive, through treaty-terms, override our Constitution, asserting shamelessly that it has some pocket of unlimited arbitrary power at international plane, which can be implemented under domestic jurisdiction by dragging issues under the executive field,; and where Parliamentary authorization is needed for implementation, it can be got done through pressure, persuasion, coercion, propaganda, public relations exercise, or ……? What is wrong if through treaty-terms we make the Constitution of India subservient to "The Law of Free Monarchies" of James I, or if we make the world's hegemone say " I am now the World's Leviathan" mightier than Charles XIV of France who said: "I am the State" (L'Etat,c'est moi)?

16. Can through treaty terms the Executive transgress all constitution limitations on its treaty making, derived from the peremptory norms prescribed under Articles 53, 73, 245, 373 of the Constitution arrogating to itself powers to do away with the Constitution as the Executive would survive when all other organs perish?

17. Can our Parliament, which is so sensitive for its sovereignty, allow itself to be turned redundant by the administrative acts of the Executive promoting the agenda of the corporate oligarchy?

17. Can our Superior Courts shy away from upholding the Constitution when it is under oath to ‘uphold' it come what may? Has not in Marbury v. Madison, the Chief Justice Marshall said in resonating words?:

"Why does a judge swear to discharge his duties agreeably to the constitution of the United States, if that constitution forms no rule for his government? If such were the real state of things, this is worse than solemn mockery. To prescribe, or to take oath, becomes equally a crime."

What should be done

In course of debate in Parliament, on July 21, 2008 Shri L K Advani, the leader of Opposition, suggested:

"But after this experience with the nuclear deal, I am of the view -- if the Government agrees – that the Constitution be amended so that in certain cases relating to security and in certain cases relating to the integrity of the country, the Parliament's approval must be sought before entering into a Deal."

A Seminar was organized by the National Working Group on Patent Laws on July 21, 2007. It was Seminar was inaugurated by the Former Prime Minister Shri I.K.Gujral and presided over by the Former Chief Justice of India Shri J.S. Verma. Valedictory address was delivered by Dr. Murli Manohar Joshi, M.P. and Special address was delivered by Shri D. Raja, M.P. [This humble self was one of the key speakers]. The Declaration issued unanimously by the Seminar made the following suggestions:

"9.1 The unanimous conclusions of the National Seminar are that the Government should introduce in Parliament a legislation stipulating that :

(i) all issues requiring multilateral and bilateral treaties shall be brought before Parliament indicating detailed parameters. Parliament may selectively refer the matter to Joint Parliamentary Committee on Treaties (JPC) for examination in consultation with knowledgeable experts and stakeholders. The proceeding of the JPC shall be published for debate in Parliament;

(ii) simultaneously, in appropriate cases the issues shall also be referred to the state governments for their opinion;

(iii) treaties which affect the federal structure will not be signed untill the state governments have given their opinion and parliamentary discussion has taken place in India;

(iv) Certain classes of treaties shall be acceded to only after Parliamentary ratification."

The National Commission to Review the Working of the Constitution has made a number of valuable suggestions after considering our Constitutional parameters: 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.

The Peoples' Commission on Patents Laws for India [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] 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." [ italics supplied].

This writer, in his book Judicial Role in Globalised Economy (2005), humbly made "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 that the power of Judicial 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." 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."


Lord Krishna tells us: there is no ‘matter'; everything is kriya alone. And kriya involves a prudent perception of kartavy, and steadfast performance of karma. So let us act to save our democracy, our Constitution, our culture, and thereby ourselves. Let the politicians act pro bono publico, let the judiciary be true to its salt, let the citizenry be vigilant and bold, let the law of karma and consequence operate inexorably, and let us save ourselves through our collective efforts, always keeping in mind what Vyasa said in the Mahabharat:

Sorrow which we share in common,
It is unwise to shed tears thereon;
It is prudent to find and forge some ways
To diagnose the cause to get rid of the ailment. - Links on Shivakantjha - Links on Shivakantjha

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