Shivakantjha.org - Treaty-Making Powers of Executive: Need for Legislation and Enforcement of Constitutional Limitations
Treaty-making powers of Executive: Need for legislation and enforcement
of constitutional limitations
NEW DELHI, JULY 23, 2007 : GIVEN our expressed
keenness to become a global power in the years to come, India has been busy
signing all sorts of political and economic treaties, bilateral or multilateral,
virtually across all the continents. Talks are being held to conclude dozens
of economic treaties. Signing of Double Taxation Avoidance Agreements (DTAAs)
has become a monthly affair. The Indo-US nuclear treaty is in its final leg.
Even as the Union Govt which alone has the constitutional power to enter into
any sort of treaty at international plane, a seminar was last Saturday organised
by the ASSOCHAM to debate the treaty-making power of the Executive and the constitutional
limitations. A large number of legal and political luminaries participated in
this highly enlightening debate and freely aired their views.
Even as different speakers had their own set of views, the conclusive
remark made by the former Chief Justice of India, Justice J S Verma, was that
a time has come for the country to legislate on this issue like many other
matured democracies and clip the wings of the Executive within the constitutional
limitations. The Executive has got no 'hip-pocket' of unbridled powers to compromise
with either the sovereignty of the nation or the fundamental rights or features
of the Constitution. Articles 73 and Article 253 make it expressly clear
that the Executive can enter into any treaty provided that does not impinge
on any of the basic rights guaranteed by our constitution.
In this context, the former Chairman of the Atomic Energy Regulatory
Board, Mr A R Gopalakrishnan, said that the Indian industry and NRIs sitting
outside have substantial interests in pushing the nuclear deal, and US has enough
friends in this Indian segment who either don't understand or are not bothered
of its implications on national security.
He further added that this deal is not an isolated phenomenon
but a part of a well thought out and well engineered policy change of USA towards
India to bring India within its fold. Initially the deal was jumped onto
because it looked all rosy and very inviting but later when discussions started
it was realised it wasn't what it was shown to be and it was followed by separating
14 reactors for inspection by international watchdogs. The Hyde Act, an India
specific law, was passed to govern the nuclear relations with India which is
going to continue to do the same unless its amended some day. A close analysis
of this Act reveals that India has surrendered its freedom to undertake independent
scientific research in these areas and has also compromised with its future
energy plans.
Former Chief Commissioner of Income Tax and now a senior advocate
in Supreme Court Shiva Kant Jha said that treaty-making power does not involve
any sovereign function - Constitution makers have shown great insight and there
is clear control of legislature and constitutional organs over treaty making
power. Article 53 states powers of President are to be exercised subject to
constitutional limitations; Art.73 says that treaty making power is to be
exercised subject to constitutional limitations; treaty making power under Art.366
is subject to judicial review.
He further underlined that the entire constitutional scheme nowhere
gives any exclusive treaty making power to the Executive, and in fact, Entry
14 of Union List, which consists of matters on which the Parliament can legislate,
gives power to the Union Parliament to legislate on treaties. Formation at international
plane is very much subject to the provisions of the constitution and it's a
completely erroneous view that treaty making is the Executive domain and legislature
only can make treaty implementing laws because only if there is a valid treaty
can it be implemented and if it's in violation of provisions of the constitution,
then it can't be a valid treaty and there is no question of invoking Art.253.
This issue has till date not been exclusively dealt by the courts and there
is no concrete finding of the courts on it. He also referred to a PIL which
he has recently filed before the Delhi High Court where India signing WTO Treaty
has been challenged as violative of basic rights guaranteed by the Constitution.
Noted intellectual Dr Rajeev Dhawan, said that the US today is
at the helm of a largely unipolar world. From 1987 this process of predatory
treaties started with a view to subjugate the world, primarily the markets of
other nations. The Hyde Act contains provisions which call upon India to
behave responsively and to have policies in conformity to them - though
Mr Bush made a statement that his approval of the Act doesn't mean a approval
of the Statement of Policy as incorporated in the Act. But Mr Bush is not going
to be around for all times and subsequent incumbents may go back on such assurance.
The crux is that this Act which is going to govern the two country's nuclear
relations is heavily worded in favour of USA.
Moreover, he further argued that the nuclear energy is to be
looked through the Energy policy that we are pursuing and not in vacuum, and
our efforts towards nuclear energy should be in conformity with the policy and
as a part of it instead of a distinct energy source. Any executive power
exercised without legislation is a pure executive power and its established
law that exercise of executive power can't take away the rights of the citizens.
These treaties are indirectly affecting the rights of the citizens though a
view may be taken that the nexus between the treaty and infringement of rights
is too remote but nevertheless there is no doubt that these treaties affect
the rights of the citizens and in a substantial manner, whether in health, food
or energy sector. Just because exercise of this executive power i.e. treaty
making is foreign in nature can't be given free flow even when it affects the
rights of the people of the country because in essence its a executive power
being exercised which is subject to constitutional limitations. Legislation
is to keep a check on the executive and if the executive refuses to be checked
as far as treaty making power (TMP) is concerned, then there is serious flaw
in the Constitution. TMP is a 19 th century power that we are trying to fit
into the 21 st century mould, and we clearly see parliamentary accountability
incorporated in exercise of this power by the constitution framers. There has
to be some framework to discipline the executive with regard to their treaty
making power, and there is nothing in the Union List that prevents the parliament
to legislate to bring a framework to ratify all treaties before they are given
effect to so that no treaty can be implemented unless ratified by the parliament.
The CPI ideologue, Mr D Raja, said that the CPI has always taken
a stand that as far as the nuclear deal is concerned people of the country should
be taken into confidence, and whatever treaty is signed it should be approved
by the parliament. There should be a constitutional amendment to make it mandatory
that all treaties should be approved by the parliament. The way the whole
nuclear deal has been negotiated has been very disturbing and the parliament
has been kept in dark, he added.
To sum up this legalistic debate in simple words, one may say
that what is the need of the hour is a clear display of disciplined behaviour
and democratic behaviour from the Executive which needs to remind itself of
the fact that these treaties are no longer a pure diplomatic events, generally
'organised' to embellish the foreign relations with certain countries. Treaties
in modern times directly impact the bread and butter of citizenry in third world
countries, and it would be wiser if greater participation of all constitutional
institutions are encouraged. Before committing or tying down the future
of more than 1200 million people, it has to be a national decision by the Parliament
rather than the upbeat dialogue of a few career diplomats and arrogant politicians,
claiming copyright to wisdom and foreign relations foresights!
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