- Reductio ad asburdum!

Reductio ad asburdum!

(An Aspect of 123 Agreement)
Part V

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 of India?

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 or Mauritius?

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 recent years?

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 [2003] 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 judicial organ." - Links on Shivakantjha - Links on Shivakantjha

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