- India subjects itself to foreign jurisdiction

India subjects itself to foreign jurisdiction

(An Aspect of the 123 Agreement)
Part III

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 parts only:

" 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 18, 1977...."

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 world.

(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 U.S. 581 ]

(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 Globalised Economy.


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 (

"It is an unequal colonial treaty that openly subjects a potentially significant share of India's energy generating potential to future U.S. blackmail." - Links on Shivakantjha - Links on Shivakantjha

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