Shivakantjha.org - Why is the Treaty Making Power important?
NATIONAL WORKING GROUP ON PATENT LAWS
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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.
Why is the treaty making power important ?
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
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.
Basic issues raised
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
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.
Impact of the Indo-US Nuclear Deal
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.
Impact of WTO and other 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
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.
The Treaty making power in the 21st century
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.
Need for Political initiative
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.
Need for change
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
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 firstname.lastname@example.org.
and phone no. 91-011-26953303.
(Prof. Muchkund Dubey)
(Dr. Rajeev Dhavan)
Former Chief Justice of India
Former Foreign Secretary & Co-chairman NWGPL
Senior Advocate & Convenor, NWGPL
Former Commissioner of Payments, GOI & Convenor, NWGPL
New Delhi July 21, 2007