THE DEBATE HASN’T ENDED - Those against the nuclear deal may approach the apex court again

Ashok Mitra
The Telegraph, 26 October

The Lok Sabha was adjourned in the last week of August following raucous acrimony over the issue of parliamentary prerogative to decide the rights and wrongs of a foreign treaty signed by the government. The debate is currently in a limbo. That does not mean that it has lost its relevance.

The speaker of the Lok Sabha, apparently, has no doubt in the matter. In terms of Entry 14 of the Union list in the Seventh Schedule of our Constitution, “entering into treaties and agreements with foreign countries and implementing of treaties, agreements and conventions with foreign countries” are a prerogative of the Union government. This prerogative, the speaker must have assumed, is absolute; Parliament can at best debate various aspects of a treaty entered into with a foreign country, but cannot vote on it; till as long as the government has the confidence of Parliament, it can go ahead and sign treaties and agreements with foreign governments and international agencies.

There is a problem though. For the Union list defines the ambit of authority of not just the executive, but also that of the legislative body at the Central level. That legislative body is Parliament. Since Parliament has the power to legislate on a subject covered by any entry in the Union list, it arguably should have the right to give its opinion on each and every aspect of it. This particular argument would seem to gain further ground from the contents of Article 253, which reads, “… Parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body.” The purport of the article is abundantly clear. In case a treaty signed by the government with a foreign country entails any legislation for its implementation, Parliament has to come into the picture; if Parliament refuses to pass the necessary legislation, the treaty would be still-born. The legislature, it follows, has a say in the matter of signing a foreign treaty; the executive cannot appropriate for itself the role of the sole arbiter of its merits.

The debate will of course not end here. Those favouring conferment of absolute authority on the executive to enter into treaties with foreign countries are likely to interject: in several instances signing a foreign treaty does not call for either fresh legislation or amendment of an old one; Parliament can therefore be conveniently bypassed. The 123 Agreement, it will be maintained, is one such instance. An immediate rejoinder could, however, be forthcoming. Parliament’s prerogative, it might be asserted, cannot be compartmentalized: if it can sit in judgment on some foreign treaties, it would be odd to suggest that some other treaties are beyond its domain; the right to reject a treaty should imply that Parliament also has the corresponding right to approve a treaty; if such approval is not sought from it, the treaty must be considered ultra vires of the Constitution.

At this juncture, partisans arguing on behalf of the executive could well seek refuge in precedents. There has been not a single occasion since the Constitution was introduced for Parliament to contest the right of the executive to enter into foreign treaties; what has not happened in the past cannot be allowed to take place now.

Seemingly checkmated, those unhappy with the 123 Agreement might choose a different line of attack. Barring the Marrakech Treaty of 1994, which ushered in the regime of the World Trade Organisation, no other treaty signed in the past had affected the nation’s sovereign status. The WTO treaty did encroach substantially on our economic independence, but since the two major national parties, the Congress and the Bharatiya Janata Party, had agreed to this erosion of suzerainty, the conscientious objectors were in a hopeless minority in Parliament. The situation, it is maintainable, is qualitatively different in the present case: a decisive majority of the members of the Lok Sabha are opposed to the provisions of the 123 Agreement; to put it into operation without taking into account the opinion of the parliamentary majority would be outrageous. A couple of supplementary arguments too might be added. To surrender either the whole or a part of our sovereignty would supposedly make nonsense of the Constitution’s Preamble, which proclaims India to be a sovereign republic. Also breached in the process would be a Directive Principle of State Policy — enunciated in Article 51, ordaining the State “to maintain just and honourable relations between nations”, since the 123 Agreement, as far as India is concerned, is neither just nor honourable. New Delhi’s retreat from signing the gas pipeline agreement with Iran and Pakistan, the suggestion would be put forward, was an early omen; once the 123 Agreement goes through, things would be much worse.

Committed opponents of the Agreement would like to stir things up at this stage. In case the 123 Agreement, read together with the Hyde Act, is prima facie incompatible with the Preamble to our Constitution as well as with the Directive Principle of State Policy referred to in Article 51, would it not actually damage the basic structure of the Constitution? It might not prove altogether easy to quell apprehensions along these lines expressed with great rigour.

The Supreme Court of India has till now been reluctant to consider the issue of parliamentary jurisdiction over foreign treaties and declined to entertain writ petitions in this regard. Once the issue is linked to the basic structure of the Constitution, the possibility at least exists that the nation’s highest judiciary might take a somewhat different view of the matter. But there is an equal possibility that it might not.

Developments in more recent weeks appear to have led to a cooling off of New Delhi’s determination to rush with the implementation of the 123 Agreement, irrespective of the sentiments of the parliamentary majority; there are evidently differences within the ruling alliance; some of the coalition partners have broken the prime minister’s heart. Coaxing and cajoling nonetheless continue from the Washington DC-end. One story that is afloat need not be taken altogether light-heartedly: George W. Bush is reportedly anxious to ‘consummate’ the nuclear deal he has signed with the Indian prime minister before coming March, when the first primary polls take place for choosing the next president of the United States of America.

Whatever the domestic political realities, those heading the government in New Delhi could therefore be under pressure till the very last moment to make a final attempt to finalize the Agreement notwithstanding widespread reservations in different quarters, including among important constituents of the United Progressive Alliance itself. Those dead set against the Agreement may therefore owe it to themselves to approach the nation’s highest judiciary for reconsideration of its earlier position; a fresh writ petition could be filed seeking the Supreme Court’s view on the entire range of issues. To checkmate any pre-emptive move on the part of the government, the court might be further requested to clamp an interim directive on the executive authority to not implement the 123 Agreement till as long as it has not given its verdict.

The town cynic is going to pop in here and shoot the question: what is the point of such jurisprudence-fetishism; has not the salt itself already lost its savour? Maybe he is right. But which direction do we then turn?