- 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. - Links on Shivakantjha - Links on Shivakantjha

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