Shivakantjha.org - Reductio ad asburdum!
Reductio ad asburdum!
(An Aspect of 123 Agreement)
By Shiva Kant Jha
THIS article examines the view of the Supreme
Court observed, in casual obiter, while dismissing a Writ Petition, which sought
judicial intervention in the matter of the 123 Agreement; and also the view
of Mr Somnath Chatterjee, the Speaker of our Lok Sabha, on the Executive Government's
Treaty-Making power, and the feasibility and reach of the judicial and Parliamentary
controls on such power:
(a) The Supreme Court of India: "The country can enter
into any treaty with another nations, It is beyond the realm of judicial review."
(Reported by a National Daily on August 4, 2007.)
(b) Shri Somnath Chatterjee, Speaker of Indian Parliament:
"Chatterjee ruled that the Constitution had give the Union
government sovereign rights to enter into international treaties. His ruling
was that the government does not need parliamentary ratification of these
treaties." (Reported by a pink Daily on August 18, 2007)."
When an ordinary citizen ventures to examine the views of persons
at such lofty Olympian high, he is flabbergasted, and knows not how to do it:
the words of John Milton (in Paradise Lost ) creep in mind to liberate
and enmesh at the same time: it is not unnatural if he shrinks on the edge of
......that Serbonian Bog,
'Twixt Damiata and Mount Casius old,
Where armies whole have sunk.
But how to go about this exercise? I ask myself; and I have felt
that I should test their logic on the touchstone of the ancient logical maxim:
reductio ad absurdum. 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 think
how one in lucid moments even thinks of posing such questions. 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. To avoid repetition, I would refer
the above 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 constitutional organs of the Republic
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
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
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."
Baba Tulsi Das had taught us : Never ruminate through
gloss on points unsavoury, and shocking. I seek his pardon for deviating from
his counsel. I have done this out of sheer pang at lack of sensitivity to, and
perception of, the present Economic Globalization in which the wielders of the
market forces rule causing a terrible mismatch to which Geza Feketekuty
refers in these words:
"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."
It is submitted with greatest respect that the 'questioned views'
are grossly wrong, and productive of much public mischief. I would like
to observe that :
(a) 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.
(b) Our Parliament is an institution in which the nation is present
through the people's representatives. It was so when Sir Thomas Smith said
about Parliament in 1565:
"For every Englishman is intended to be there present ...
And the consent of the Parliament is taken to be every man's consent"
The position continues to be the same even now (despite the fact
that most of our representatives have not given good account of themselves).
Parliament is endowed under our Constitution with power to become a version
of the Constituent Assembly with powers to amend even the Constitution. Laws
LJ, in Thoburn v Sunderland City Council  QB 151, said: "Parliament
cannot abandon its sovereignty..."
(c) The judiciary is duty-bound to 'uphold' the Constitution
for interpreting which it has an exclusive competence to interpret what our
Constitution means. If any organ created by the Constitution subverts it, our
Superior Courts must intervene to set things in order. Our Supreme Court has
very aptly said in a recent Case ( Raja Ram Pal vs. Hon'ble Speaker, Lok
Sabha & Ors) : "That the Constitution is the Supreme lex in this Country,
is beyond the pale of any controversy. All organs of the State
derive their authority, jurisdiction and powers from the Constitution and owe
allegiance to it. This includes this Court also which represents the