Shiva Kant Jha

D-86/3, Okhla Industrial Area, Phase - 1, New Delhi - 110 020 (India)
Phones: 4052 - 1796, Fax: 4052 - 1795 <wgkeayla@del6.vsnl.net.in>

Statement on Treaty Making Power

National Seminar on treaty making power of the Government was organized on July 21, 2007 by National Working Group on Patent Laws (NWGPL) - a group of thinkers and activists. Seminar was inaugurated by the Former Prime Minister Shri I.K.Gujral and presided over by the Former Chief Justice of India Shri J.S. Verma. Valedictory address was delivered by Dr. Murli Manohar Joshi, M.P. and Special address was delivered by Shri D. Raja, M.P. Legal luminaries and experts made presentations on the crucial issues relating to treaty making power of the Indian Government.

1.1 The Constitution envisaged the enactment of a parliamentary law enacted (Article 253, Entry 14, List I read with Article 246) to regulate the executive power of entering into treaties and their implementation. This was to operate as a check to ensure that no treaty would create enforceable rights in India without a legislation translating treaty obligations into law and incorporating them as part of the law of the land.

While respecting this incorporation theory, later on the Supreme Court laid down that some rights-enhancing treaties would be deemed to be part of the life and liberty provisions of the Constitution (See Vishaka, (1997) 6 SCC 241).

1.2 However, the constitutional dispensation envisaged by its makers did not obviate parliamentary and public discussion on treaties at the time they were being discussed, negotiated, acceded to and ratified. It was certainly an expectation that (a) all treaties would be properly discussed within India before any final commitment is made and (b) in any event, treaties could only be implemented by legislation in and by Parliament (which is known as the incorporation theory implying that unless a treaty is implemented by legislation, no rights will be created within India). The Constitution makers assumed that the treaty making power would be part of Parliamentary democracy and not stand above it.

1.3 However, the treaty making power has become a 'law' unto itself. The nature of the treaty making power in India needs to be understood. The treaty making power is a mere executive power. Like any other executive power, it is subject to parliamentary control and accountability. The power to make treaties is not specifically mentioned. It is implied from the general executive power in Article 73 of the Constitution. But the effect of the treaty making power is that it has the potential effect of collapsing legislative federalism so that Parliament can legislate on even State subjects to implement treaties.

1.4 What makes the treaty making power important is that if a multi-lateral treaty like the WTO is infringed by India, a dispute mechanism with awesome consequences is brought into play. Equally a treaty like the 123 Agreement on the Nuclear Deal will have external consequences. In future decades, the treaty making power will have an extensive and intensive effect on governance in India. This is a challenge for Indian democracy which has never been properly considered and needs immediate attention now so that future exercises of the treaty making power do not mortgage the interests of the nation by a signature of the pen which binds India even if there has been inadequate or no discussion on the treaty. If India is bound on critical issues globally by treaties, its sovereignty and integrity will automatically be affected.

1.5 It is necessary to emphasize that the treaty making power is an executive power. Like any other executive power, it is imperative that this power should be made accountable to Parliament. We need to evolve proper methods to create this accountability including (a) full disclosure of India's position to negotiating countries to state that the finalization of treaties cannot be made unless a transparent discussion takes place within Indian democracy; (b) devising a mechanism for an open discussion after placing all the information connected with the treaty in the public domain; (c) ensuring that the treaties and India's position in relation to them is placed before the public and Parliament before the signing of the treaty; and (d) providing for a full parliamentary discussion on the subject before a final commitment is made. At present there is no requirement of ratification by Parliament-for which-the Constitution would have to be amended if such approvals are to be made constitutionally mandatory. But there is no reason why a constitutional practice cannot be superimposed on the process of using the treaty making power so that this vast power is subject to democratic accountability.

2. While inaugurating the seminar Shri I.K. Gujral felt that the question of treaty-making power posed for debate in the seminar was extremely important. He suggested that based on the views of the experts the issues should be focused for discussion by other relevant forum for taking final view as to whether Parliament should have the right or government should have the right to decide important issues of national importance raised in international treaties. Justice J.S. Verma stated that our Constitutional philosophy is one of the participation of

all who mater in anything relating to governance. According to him, the proper governance does require people's participation and that of stakeholders. He strongly felt that there was no harm for knowing the views of all knowledgeable experts on important issues involved in international treaties. Participatory role of the people in the Parliamentary form of government underlines the need to democratize the process of treaty making.

3. Dr. A. Gopalakrishnan, Former Chairman, Atomic Energy Regulatory Board made a detailed presentation on Indo-US nuclear deal. He pointed out that in the past two-three years much has been written about the deal and the changed or revised American policy towards India. He felt that Government of India have not kept Parliament fully informed and that the public is almost in the dark. Our Parliament should get fully briefed of what is being done and that it should examine whether the deal is in the country's interest. He pointed out that American have found that the economic sanctions and technology sanctions did not have any impact on India after the conduct of the nuclear test at Pokhran in 1998. The new deal has a strong purpose of ensuring that given India's geo-political importance it can play a role in counter-proliferation in the Indian ocean. The strategic approach of US in the nuclear deal has to be understood in depth. It is in this context that Parliament should have a strong role to play in the formation of all important international treaties.

4. Prof. B.S. Chimni, Chairperson, Centre for International Legal Studies, Jawaharlal Nehru University and Co-convenor, NWGPL felt that through treaty making powers vested in the Executive substantive democracy was being undermined in the country. The policy space that the people of this country must have in order to improve their lives is no longer available to them. He pointed out that sovereign economic space was being ceded in treaties negotiated in favour of the international institutions like the World Trade Organisation, International Monetary Fund and the World Bank. He said that the treaty making power as is embodied in the Indian Constitution was framed at a time when members of the Constituent Assembly could not have envisaged that international treaties will assume the importance they have and treaty making power could be used to nibble the economic independence of the country. He envisaged a situation where the World Trade Organisation Appellate Body gives a certain interpretation on obligation under a WTO text and the highest Court in our country gives another interpretation on the same obligation. In that case, he thought, the interpretation of the World Trade Organisation Appellate Body would prevail. Thus in a way the judicial functioning of our Supreme Court gets undermined in favour of an international body. Prof. Chimni suggested that there was a need to categorized International treaties in terms of their significance. In the case of treaties which

are crucial and involve critical economic and social issues, Parliament must have an important role in their negotiation and ratification. What this role should be and the form it should assume, need urgent attention.

5. Shri S.K. Jha, Senior Advocate and Former Chief Commissioner of Income Tax dealt with the competence of the Central government to enter into such treaties as Double Taxation Avoidance Agreement and the Final Act of the Uruguay Round. He explained the details of the petition filed by him on the treaty making power of the government in the Delhi High Court. The court has issued the rule directing the Union Government to file counter affidavit by October 3, 2007. He also pressed for the need of changing the system of treaty making power which should be transparent and ensure involvement of all stakeholders. Debate in Parliament in order to ensure that national interest is safeguarded is absolutely necessary.

6. Dr. Rajeev Dhavan, Senior Advocate and Convener, Core Group, NWGPL, went into the root question on the nature of the executive power in the context of a new global situation. Explaining the status of the executive power in Indian constitutional law, Dr.Dhavan indicated that it was a mere executive power which could not subvert the Constitution itself. For practical reasons, the Supreme Court in Ram Jawayya's case, (1955), allowed the executive power to be exercised even if there was no legislation to sanction this exercise. However, the Supreme Court underlined that this power is subject to the discipline of parliamentary democracy and cannot upset the fundamental and other rights of the people. If parliamentary democracy fails to rein in this executive power, it will take over Indian governance and repose it in the hands of external international bodies. Dr. Dhavan pointed out that in the late 20th and 21st centuries, modern multi-lateral treaties are self-executing. They do not require implementation by statute. When Parliament did not enact amendments to the Patent legislation in India, to bring it in line with the TRIPs Agreement the WTO machinery raised dispute to ensure that the Indian legislature enacts the amendment to thwart both the right to food and health. However, Dr. Dhavan felt that the global governance today has to be understood in the context of the American empire which is one of the most powerful empires the world has ever produced and, which is as unscrupulous in its expanse than any other global power the world has known. From the dropping of the atomic bombs in 1945, America has ruthlessly attacked other nations, invaded their political sovereignty, misused the power of the United Nations and set up predatory treaties such as the WTO. Anxious to preserve itself, it has not signed the Kyoto Convention. The Nuclear Fuel Treaty emanating from the Hyde Act blantly states that India must adhere to and support America's foreign policy--including, by implication, America's hostility to Iran. India's democratic record on discussing treaties within India with the public and before Parliament has been abysmal. This is self-evident from the total failure of democratic involvement during the WTO treaty making process. We must evolve a practical way of disciplining the executive power. This can be achieved by (a) ensuring that all information in respect of certain classes of treaties be brought into the public domain for public discussion, (b) providing that a parliamentary committee scrutinizes the treaty making process on an active basis during negotiations and not just after the treaty is signed, (c) making it clear to other negotiating countries that any exercise of the treaty making power in relation to certain classes of treaties will necessarily be subject to the outcome of public and parliamentary discussion, (d) earmarking certain classes of treaties for ratification by Parliament. At present, the Constitution is silent on the subject of ratification. To make such ratification mandatory would require a constitutional amendment, but, as has been rightly pointed out, there is no reason why a healthy constitutional practice should not be created.

7. Dr. Upendra Baxi Senior Advocate and Former Vice-Chancellor, Delhi University in his paper on the subject stated that the power to make treaties, to ratify them, and to bring them into force ought to form an arena of rigorous, as well as vigorous public discourse, beyond the bouts of episodic interest in a democratic and republican form of constitution. He strongly advocated the need for change in the present system of treaty-making in our country.

8.1 Dr. Murli Manohar Joshi MP and Chairman of the Parliamentary Standing Committee on Commerce in his valedictory address observed that the treaty making power was misused during the Uruguay Round of GATT Negotiations by the government and such a major treaty was ratified without any worth-while debate in Parliament. To him the treaty making power is a serious question as it not only relates to trade, commerce or economic activities, but also it very seriously impinges upon the nuclear and agriculture research. The issue should be decided and examined with full microscopic and telescopic visions. Either Government should take initiative or the political parties could move private member bill to achieve the objective of change in the procedure of treating making both international and bilateral treaties or conventions.

8.2 Shri D. Raja, M.P. and National Secretary, Communist Party of India felt that there was a growing influence of international finance capital on our economic policies and growing influence of United States on our foreign policy. On Indo-U.S. Nuclear deal, he felt that there was a need that Parliament and people should be taken into confidence. He felt that WTO treaties were against our national interest particularly in agriculture. Similarly, he felt banking and insurance sectors are also being affected. He suggested that all political parties should consider the need to review the treaty making power of the government. Parliament and people should be taken into confidence in negotiating international and bilateral treaties.

9.1 The unanimous conclusions of the National Seminar are that the Government should introduce in Parliament a legislation stipulating that :

(i) all issues requiring multilateral and bilateral treaties shall be brought before Parliament indicating detailed parameters. Parliament may selectively refer the matter to Joint Parliamentary Committee on Treaties (JPC) for examination in consultation with knowledgeable experts and stakeholders. The proceeding of the JPC shall be published for debate in Parliament;

(ii) simultaneously, in appropriate cases the issues shall also be referred to the state governments for their opinion;

(iii) treaties which affect the federal structure will not be signed untill the state governments have given their opinion and parliamentary discussion has taken place in India;

(iv) Certain classes of treaties shall be acceded to only after Parliamentary ratification.

9.2 The issue of treaty-making power of the government was examined and commented upon by two high-level Peoples' Commissions and by the National Commission to Review the Working of the Constitution. Uptill now their recommendations have remained unimplemented by the government.

9.3 In case the Government of India fail to introduce an appropriate legislation in Parliament, the seminar appeals to all the political parties to take initiative and introduce private member bill so as to ensure that appropriate procedure is legalized in regard to treaty making in the future.

9.4 The petition filed in the Delhi High Court by Shri S.K Jha is expected to come up on October 3, 2007. Public interest groups and stakeholders should consider filing interventions in the Court in consultation with Shri S.K. Jha email skjha@shivakantjha.org. and phone no. 91-011-26953303.

(Justice J.S.Verma)	(Prof. Muchkund Dubey)	(Dr. Rajeev Dhavan)
Former Chief Justice of India	Former Foreign Secretary & Co-chairman NWGPL	Senior Advocate & Convenor, NWGPL

(B.K. Keayla)
Former Commissioner of Payments, GOI & Convenor, NWGPL