Shivakantjha.org - India subjects itself to foreign jurisdiction
India subjects itself to foreign jurisdiction
(An Aspect of the 123 Agreement)
By Shiva Kant Jha
WE all know that, bereft of all details, law
is the command of a determinate superior exercising sovereign power in a political
society inhabiting a specific territory. This power, in a democracy, resides
in people who create and sustain the organs of governance in accordance with
the constitutional norms and protocol accepted by that political society. If
a measure of auto-limitations is adopted in favour of some international organizations
created for the common pursuit for the promotion of some agreed aims for common
weal, it is no exception to the said rule. But if situations having grave domestic
impact are subjected to, or are modified, or are overridden, or even promoted
under crypto-psychic pressure (or arm twisting), it is a sad state of affairs,
which must be arrested at the threshold so that strategic decisions in critical
moments are not adversely compromised. Let us not become an illustration of
that slave's syndrome under which a freed slave puts on shackles of his own
as he is yet to learn what freedom means, and how much vigilance, foresight,
integrity are needed to protect and promote it.
Let us see some of the specific provisions of the 123 Agreement
before their sinister import is weighed and measured:
(i) "The Parties shall cooperate in the use of nuclear energy for
peaceful purposes in accordance with the provisions of this Agreement. 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." [Art. 2(1)]
(ii) 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. [Art 3(3)]
(iii) "......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.
The above provisions should be considered in the context of
provisions like those in Art. Article 10, Sections 2 and 3: to quote the relevant
" 2 . . .India agrees that nuclear material and equipment transferred
to India by the United States of America pursuant to this Agreement . . .
shall be subject to safeguards in perpetuity in accordance with the India-specific
Safeguards Agreement between India and the IAEA and an Additional Protocol,
when in force." [emphasis supplied]
"3 Nuclear material and equipment transferred to the United
States of America pursuant to this Agreement . . . shall be subject to the
Agreement between the United States of America and the IAEA. for the application
of safeguards in the United States of America, done at Vienna November
Now compare Art 2(1) of the Indo-US 123 Agreement with Art
2(1) of the US-China 123 Agreement in order to notice the patent differentia
of great significance: it says, besides what is set forth in the US-India 123
Agreement, something which our negotiators, it seems, missed to comprehend---
".............. The parties recognize, with respect to the
observance of this agreement, the principle of international law that provides
that a part may not invoke the provisions of its internal law as justification
for its failure to perform a treaty ." [emphasis supplied]
An overview of the constitutional regime in the USA and India
The US and India specific provisions as to the relationship
inter se the treaty law and domestic law are precisely thus stated
to put the precise issue under consideration in this article under proper perspective.
First, the provisions under the US State practice:
(i) In the United States the Constitution provides in Article
VI, cl. 2, that "all Treaties made, or which shall be made, under Authority
of the United States, shall be the supreme law of the land; and the judges
in every State shall be bound thereby, any thing in the Constitution
or Laws of any State to the Contrary notwithstanding." In India, the Constitution
is supremely supreme as under no circumstances the power of the State can be
used in contravention of the Constitution, vide the provisions of Articles 53,
73, 245, 372, and also Art 253 which contemplates a valid treaty .
(ii) In the USA the Agreements fall broadly in 3 classes:
(a) Agreements which are treaties stricto sensu , and are
done under the provisions of Art. II(2)(2) of the Constitution by the President
with the advice and consent of the Senate.
(b) The Executive Agreements are done not in accordance with
Art. II(2)(2), but under the authority of the President, but are for most
purposes under international law, treated as treaties, though they
do not have the supreme efficacy as contemplated under Art . VI. It deserves
to be noted that in 1972 a law was framed in the USA (the Case Act) which
required that all such Agreements were thenceforth to be submitted
to the Congress within 60 days of their entry into force..
(c) Agreements which are executed by the President and approved
and implemented by Act of Congress through enactments, to illustrate:
the recent trade agreements, including NAFTA, the United States-Canada
Free Trade Agreement, the United States-Israel Free Trade Agreement and the
Tokyo Round Agreement, the Uruguay Round Agreements, and now this Indo-US
Nuclear Deal with patent commercial and strategic interests in our dangerous
(iii) Indian Parliament has power to frame laws governing the
formation and implementation of treaties, but so long any
segment of power is not legislatively occupied under some specific enactment,
the Executive government can enter into treaties in exercise of the executive
power granted under Art 73 recognizing no fetters, but it must be exercised
"subject to the provisions" of the Constitution.
(iv) The principles of customary law are applied by the domestic
courts both in the USA and India
(v) Treaty provisions are not given effect by the domestic
courts unless they are 'self executing' in the USA or legislatively mandated,
and unless are they legislatively implemented in India if they confer
benefits or put burdens on the citizenry, or have adverse domestic impact.
(vi) (a) On the point of the overriding power inter se
treaties and statutes, Indian position is clearly different from that in
the USA. First the US position:
(1) If a State legislation conflicts with a treaty, the latter prevails.
(2) If a Federal legislation conflicts with a prior treaty,
the legislation prevails.
(3) If a Federal legislation conflicts with a subsequent
self-executing treaty, the treaty prevails.
(b) No Agreement can derogate from the Constitution [ Reid
v. Covert ILR 24 (1957)p.549.
(c) In case of resolving an ambiguity in the matters of statutory
construction the courts would surely try to interpret provisions in ways
as to save and promote international law.
(d) To avoid possible controversy the USA tends to grant
superiority to its domestic law over treaty by specific statutory provisions.
The enactment implementing the Uruguay Round Final Act stated
that "law to prevail in conflict". It said, "No provision of any of the
Uruguay Round Agreements, nor the application of any such
provision to any person or circumstance, that is inconsistent with any law of
the United States shall have effect." This point is very material in appreciating
the provisions under 123 Agreement. (e ) An Agreements mentioned at (ii) (a)
& (c) supra
have the force of a statute, hence a subsequent
Agreements prevail on former statute, but a subsequent statute prevails on former
Agreements [ Chae Chan Ping v. U.S., 130
(vii) The position in India can be thus summarized:
(a) As there is no legislation governing the formation and
implementation of treaty, the Executive government has arrogated
full powers to form an Agreement at international plane, and has developed
the art of implementing treaty terms by interjecting them under mask through
the executive decisions, and, where found essential, presenting a fait
accompli before Parliament to procure legislative changes through pressure,
persuasion, even deception.
(b) Our Superior Courts are yet to expound the remit and
ambit of the Central Government's Treaty-making power, though there are strewn
in some judgments some casual dicta which, perhaps, led a Division Bench of
the Supreme Court, as the Times of India of August 4, 2007 reports, to say
while dismissing a PIL: "The country can enter into any treaty with another
nations, It is beyond the realm of judicial review." It is submitted
that this observation is incorrect, and someday our courts may have to decide
the issue putting it under central focus.
Now the 123 Agreement: What is all this?
The following points deserve notice, and serious reflections:
(i) It is strange that whilst the Indo-US Agreement vis-à-vis
the USA is subject not only to the US federal statute and the Constitution,
but also to its administrative laws, directions, and regulations, besides obligations
under treaties existing and to be made .
(ii) It is true that analogous provision also exits in favour
of India, but this benefit is meaningless now and in the foreseeable future
as India turns out under the Agreement as a greedy recipient with the same zest
with which Faust craved manna from Mephistopheles (portrayed by Goethe in his
celebrated Faus t).
(iii) The U.S.-China analogous deal done in 1985 excludes the
relevance of the domestic laws by making express stipulations in Art 2.1 (underlined
above) which is what the Vienna Convention on the Law of Treaties says in Art
27: to quote : "A party may not invoke the provisions of its internal law as
justification for it its failure to perform a treaty. This rule is without prejudice
to Art 46". Art 46 permits deviation from this rule where there is a breach
of some manifest fundamental law governing treaty-making competence
. China scored over even these provisions under the Convention, as it excludes
this Art 46 too. I am convinced that the Chinese are the best appraisers of
problems, brilliant strategists, and do know the art and craft of how to make
the best in all situations.
(iv) The vital point is why our negotiators failed on points
on which China had succeeded despite all sorts of misgivings the US has about
China. This reminds me of the inapt handling by our government of matters whilst
negotiating the Uruguay Round Final Act. Indian government's approach in finalizing
this treaty, with greatest domestic impact with a long-term fall-out, was rightly
considered most distressing by the Peoples' Commission Report on GATT headed
by V R Krisna Iyer, O Chinappa Reddy, D A Desai, (all the former Hon'ble Judges
of the Supreme Court); and Rajinder Sachar (the then Hon'ble Chief Justice of
Delhi High Court); and also by me in a chapter entitled "The Uruguay Round Final
Act : A betrayal of the Nation" in my book entitled The Judicial Role in
There is time available even now to renegotiate on the point
discussed. At least let our Parliament frame law to provide a level-playing
field by enacting something of the sort of the Hyde Act. Some soul searching
is needed in public interest as we all stand before the bar of history. If no
step is taken in the matter I would see much wisdom in the editorial comment
in the Monthly Review (http://mrzine.monthlyreview.org/):
"It is an unequal colonial treaty that openly subjects a potentially
significant share of India's energy generating potential to future U.S. blackmail."