- 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:


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.


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

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 []. 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.


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.


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]


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.


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



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