- Seminar on "Treay Making Power at Assocham"

Comments on the proceedings on the Seminar on
"Treaty Making Power of Government held on July 21, 2007 at Assocham"

By Shiva Kant Jha

Assocham did something right but for somewhat wrong reasons. It organized the Seminar on "Treaty Making Power of Government: Strategic Concerns for Our Economy" on 21 st July, 2007 "with a view to promot[ing] the Indian economy and interests of the business segment".

Though, it seems, none ever learns from history, we know that business leaders are most comfortable with the members of the executive who, through dexterously contrived opaque system, are most ready to help them in countless ways. Parliament has, it is most distressing to note, declined over years, and public opinion in our country is shaped and conditioned by agencies which are remorselessly collaborating to build and manage a structure of deception under which our great Constitution stands debased and defiled. The citizenry, by and large, are absorbed in fishing their petty gains often as go-getters, but most often as adventures with an overdose of terrestrial prudence. What Bertrand Russell wrote of the declining days of a dying past civilization of the past is apt and deserved for our days also: "There seems no use in thrift, when tomorrow all your savings may be dissipated; no advantage in honesty, when the man towards whom you practise it is pretty sure to swindle you; no point in steadfast adherence to a cause, when no cause is important or has a chance of stable victory; no argument in favour of truthfulness, when only supple tergiversation makes the preservation of life an fortune possible." But such things do happen in every Sponsored State. And we are now trapped to become a Sponsored State. This plight of the nation takes our mind to the days of the Nawab of Awadh when, whilst the imperial forces were on his head, the Nawab was playing with pigeons. One recalls Middleton's Women beware Women (referred by T S Eliot , The Waste Land) who wrote about someone who played chess in his portico unmindful of the fact that inside the house he was being robbed and his wife raped! I narrated in the Seminar, while reflecting on the conditions prevailing in country, the story of two frogs. One, thrown in boiling water, could react and leap out to save itself; whilst the other, which enjoyed the cold water at first, and then went on adjusting to the increasing heat, died in the process of adjustment as it dissipated its energy in the process of adjustment, and lost the verve to leap out to save itself. The smile flickering on the face of the listeners proved that the import of the story was well caught.

The Seminar was in a collaboration with the National Working Group on Patent Laws which has, over the years. drummed into the ears of all that this nation feels betrayed both at the foreign fora, and in the cockpit of domestic politics. This collaboration was excellent as two distinct points of view were getting nicely yoked together. It must be viewed as a remarkable feat of Shri Suman Jyoti Khaitan and Shri B.K. Keayla. I am sure our country would benefit if they go ahead together with the concerns of our people in their collective consciousness. They deserve to be commended for initiatingdiscussion on this topic of greatest importance in this phase of economic Globalization.

I was not surprised when I did not find even a single leading light of the corporate, or to use a wider genus: the deluxe India present in the Seminar. Perhaps they know that in this phase of the Economic Globalization, the calculators, sophisters, and the motivated economists rule the roost as imperium stands wholly subjugated to Pax Mercatus. This is an inevitable consequence of an obvious mismatch between the institutions of the Economic Globalization and the organs of the political realm.

Shri I. K. Gujral, former Prime Minister, and Dr Murli Manohar Joshi, Chairman, Parliamentary Standing Committee on Commerce, drew at length on the treasure-trove of their experience to prove that though they acted with great vision, the WTO Treaty was imposed on us putting us under the duty to make our laws the Treaty compliant Yet they showed some zest to work for finding out ways not to allow the corporate oligarchy to subvert our Constitution through treaties. They reiterated their view that Parliament must have an effective role in the framing of treaties. Shri Joshi appreciated the need to legislate in exercise of the power under entry 14 of the Seventh Schedule to the Constitution of India. I hope their words would not go in vain.

The Seminar was presided over by Shri J. S. Verma, former Chief Justice of India. He expressed his unhappiness with the ways treaties are made, and suggested a Parliamentary enactment on treaty-making. He was not in favour of a Constitutional Amendment because this exercise might run into rough weather in getting the Constitution amended. Shri Verma planted some salutary seeds of good thoughts in the consciousness of the listeners.

Dr. A. Gopalakrishnan, a former Chairman, Atomic Energy Regulatory Board of Government of India, bled through words portraying the catastrophic Indo-U.S. Nuclear Deal which would not only cede our sovereign policy-making space, but would initiate a process to cripple this country in most spheres driving this country to become a pawn of an imperialist power politics in this unipolar world. He made his presentation of facts to prove that the pleas for the Deal are unsound and unworthy. He made the listeners believe that this Deal is no less gruesome than the pact which Faust had with Mephistopheles. The note of fatigue and frustration wrenched him all through his valourous presentation. He bewailed like Cassandra, but I wish his plight is not Cassandra-like. His words quiver and resonate in our mind Are we back, perish the thought, to the days of secret diplomacy conspiring for the Third World War?

Dr. Rajeev Dhavan, Senior Advocate, drawing on the armory of his forensic skill, made his words acquire wings to say what he has been saying over more than a decade. Our world is now on the cusp of a great era under the dominance of a hegemonial power providing patronage to the gladiators of the Economic Globalization. Whilst I cannot find fault with his burden of song, I hope he would test his propositions in the judicial arena where he plays assuredly a glamourous role. I would be glad if I get the benefit of his skill when my Writ Petition, already rule issued, comes up for judicial consideration.

Prof. B. S. Chimni, Chairperson, Centre for International Legal Studies of Jawaharlal Nehru University, delivered a suave speech in tone and temper bringing into mind the tone and temper that the Japanese Emperor showed after signing the Treaty of Surrender after being trounced and pulverized by atomic bombardment. His professorial veneer could not conceal his strong amour proper as an international lawyer when Michael Glennon writes that now the " whole frame-work of international law is just "hot air"; and also that "The grand attempt to subject the rule of force to the rule of law" should be deposited in the ashcan of history." Though well-known as a champion of what has come to be known as Third World Approaches to International Law , he couldnot come out of the market-friendly ethos of Harvard Law School , and Tokyo University . He said that domestic intrusion affecting people's rights can now be made through soft law. As things stand, if a treaty is made we have no option but to be subservient to that, no matter what our Constitution says. This assertion from an expert in international law , and international trade law was surely shocking, and it went against what all others felt and said. When I drew his attention to Art 46 of the Vienna Convention (to which he had himself referred), he brusquely brushed the point aside commenting that the Constitution is not a manifest document within the meaning of that Article. It was clearly beyond me. If the Constitution of India is not a manifest document fundamental for our polity, God alone knows which other document can that be. His professorial insight was denied to me, and most others like me. We do not believe that our world is now the oyster for the MNCs and their well-known benefactors.

Shri D. Raja, M.P said, in effect, that he and his comrades had done much to avert the imposition of the WTO Treaty but not with much success. He and his friends opposed the Indo-US Nuclear Deal but now it is going to be signed. He spoke with candour though his tone seemed morose as he could not get things done as he wished. He illustrated just what every Indian communist illustrates: a split personality. It is distressing that the art and craft of calculations are dear as much to the communists as to the capitalists under whatever version. The queer syndrome in our country is that the whilst the common Indians are surely socialists, our formal socialists and communists have lost their ways and moorings, many even turning into crypto-capitalists. Every citizen of Bharat is a socialist in the sense Krishna and Gandhi have expounded real socialism [vide the Geeta III. 12, III.20; III.25;IV. 21,23; V.18; and the several cantos in the Mahapurana teaching us the highest ideals as to property, production, equity, equality, justice, ethics, and the doctrine of the proper sharing of wealth for common weal to liberate us from greed, lust, and anger which are endemic in capitalism whether this version or that.]. To offer an unsolicited advice which is seldom welcome: our leaders should read and understand the Bhagavad-Gita , and the Bhagavad Mahapurana which would make their ideas, borrowed and original, polarize on the poles of action. Let the comrades really try to create conditions: when (to say in the oft-quoted words of Faiz:

Jab zulm-o-sitam ke kohe-garaa
rui ki tarah ud jaayenge.

[when the fog and mist of injustice,
will go into wind tossing to wither
like the shreds of cotton wool]

Mr Keayla had requested me speak to in the Seminar. He knew the content of my Writ Patition challenging the competence of the Central Government to enter into such treaties as the Double Taxaoon Avoidance Agreements, and the Final Act of the Uruguay Round Final Act. Some fragments from the petition pertaining to the treaty-making power and the validity of the WTO treaty were published for information of people by his NGO under the title, Final Act of WTO: Abuse of Treaty-Making Power. I was surprised to find its copy lying in the folder on every participant's table. I felt that some of my lapses would surely get hoisted and pricked in the Seminar ( but nothing of that sort happened). I told the listeners that the creatures of our Constitution cannot transgress limitation put by it on their competence. I paid tribute to the makers of our Constitution. Our Constitution subjects all powers, legislative or executive, to the prescribed constitutional limitations. It was stated that sovereignty is in the people, and it is primarily a matter of internal constitutional power and authority, conceived as the highest, underived power within the state with exclusive competence therein. I told them how the above-mentioned treaties violated express constitutional limitations, and so to that extent they were domestically invalid. As I saw a galaxy of talents before me, I felt that more light would be shed on the points under consideration. But nothing of that sort happened as democratic participation (through questions and answers) was almost missing as it normally happens in the IMF, World Bank, WTO, and in the affairs of our Executive government.

In effect, in the Seminar, the following three solutions to the problems under consideration were put forth:

(i) The Constitution should be amended to provide Parliamentary control on the Central Government's treaty-making power.

(ii) Parliament should frame law governing the treaty-making both in matters of treaty-formation and treat-implementation.

(iii) Our Superior Court should hold that no treaty can be made in breach of the constitutional limitations.

I submitted that all the three ideas are worth consideration. As to the feasibility of constitutional amendment, the former Chief Justice and Shri Joshi were right in observing that in view of the political constraints this course was not worth pursuing. The former Chief Justice and all others felt that a Parliamentary enactment could, under the prevailing circumstances, be the best solution.

I pointed out that the Bricker Amendments for constitutional change were moved in the U. S. A to ensure that the Constitution was not undone through treaty-making, and the proposed amendments got wide support, but also stiff opposition from the vested intersts. The Executive government was all against the proposed amendments. But this grave crisis was solved by the Supreme Court which in in Reid v. Covert (1957) declared that that the United States could not abrogate the rights guaranteed to citizens in the Bill of Rights through international agreements. Justice Hugo L. Black 's opinion for the Court declared:

There is nothing in [the Constitution] which intimates that treaties and laws enacted pursuant to [it] do not have to comply with the provisions of the Constitution. Nor is there anything in the debates which accompanied the drafting and ratification of the Constitution which even suggests such a result."

In our country also proposals for the amendment of the Constitution have been advanced off and on by some leaders. I agree that constitutional amendment in our country to tame the executive power would surely not delight the wielders of power, and all those who enrich themselves unmindful of the plight of people. In the USA too the executive government was all against Bricker's move. Power, when absolute, is most delicious for the executive, it matters not whether it is the 17 th century or the 21 st ..

It is good idea to frame an ordinary law so that Parliamentary control is effectively made on the treaty-making power. But even this course is not easy. In February, 1992, Shri M.A. Baby, Member of Parliament, Rajya Sabha gave a notice of his intention to introduce the Constitution (Amendment) Bill, 1992 to amend Article 77 of the Constitution of India providing that "every agreement, treaty, memorandum of understanding contract or deal entered into by the Government of India including borrowing under article 292 of the Constitution with any foreign country or international organization of social, economic, political, financial or cultural nature and settlements relating to trade, tariff and patents shall be laid before each House of Parliament prior to the implementation of such agreement, treaty, memorandum of understanding, contract or deal and shall operate only after it has been approved by resolutions of both Houses of Parliament". But the pursuit was fruitless. The only outcome of the whole rigmarole was the slings which Parliament received in the inapt speech made in opposition to the move. But now we are in 2007. I hope the bitter experience of recent years, and the way the Indo-U S Nuclear Deal is being forced on the nation may make our representatives wiser and more vigilant. Let us see if we learn from experience though most often either we gaze at stars or through crystals. It would be a distressing day if the nation, present in Parliament through their representatives, remains an inert body of on-lookers resigned to our destiny. We must oppose our government if on account of pressure or persuasion it enters some Hall of Mirrors wherein once the predatory victors had imposed the Treaty of Versailles on the vanquished State. Our Parliament has inherent right under the terms of our Constitution to assert its presence to compel the Executive government to come to senses. The U.S Congress showed great sagacity and political insight in rejecting the Treaty of Versailles from which cauldron emerged the evil forces which pushed Europe to a delirious destruction of the Second World. It was this decision of the Congress which saved America from President Wilson, "the blind and deaf Don Quixote". It was this refusal which saved Wilson from the culpable idiocies of Gorges Clemenceau of France, who had " one illusion -France; and one disillusion --mankind", and David Lloyed George of Britain, "this half human visitor of our age", who wove the web for the destruction of Europe through the Treaty of Versailles. Whilst Europe was busy making noose to hang itself, America was relaxing and equipping itself to become the master of the whole world, and now it has become that.

Now the Superior Court. The U S Supreme Court helped the nation to get over crises several times in the past: Marbury v. Madison (1803) is one, and Brown v. Board of Education of Topeka (1954) was another. The crisis emerging on the Bricker Amendments was over after Reid v. Covert . I think our Superior Court would provide a sollution most appropriate in the context of our times and within the frame-work of our Constitution. We hope someday our court will declare the supremacy of our Constitution. The issue is now on the anvil of the Hon'ble Delhi High Court. As incorrigible optimists we Hope that something good and great would come out. Concluding his Modern Democracies Lord Bryce had perceptively observed:


"Hope, often disappointed but always renewed, is the anchor by which the ship that carries democracy and its fortunes will have to ride out this latest storm as it has ridden out many storms before."

The deliberations at the Seminar ended "not with a bang but a whimper", yet the ideas broadcast would surely fructify as good solutions for our common weal. I would end this paper with what Vyasa said (and with which I began my An Edict of Assertions distributed in the Seminar):

Sorrow which we share in common,
It is unwise to shed tears thereon;
It is prudent to find and forge some ways
To diagnose the cause to get rid of the ailment.; - Links on Shivakantjha - Links on Shivakantjha

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