Indo-US nuclear deal and Parliament

Amal Kumar Mukhopadhyay
The Statsman, 3 October

Can a government go ahead without having any parliamemtary sanction, that is, does the Constitution permit it to implement an international agreement it has enterd into without Parliament making a law in support of it?

Indian political parties are at the moment locked in a battle of words on the desirability of the Indo-US nuclear agreement.

On its sideline, however, there has sprouted another controversy the crux of which is: whether the Central government may go ahead with this agreement without having any parliamentary sanction, that is, whether the Indian Constitution permits the government to implement an international agreement it has entered into without Parliament making a law in support of it.

The position of those who prefer to give primacy to parliamentary sanction in the matter stands vindicated by a statement issued by Mr Justice VR Krishna Iyer and Mr Justice PB Sawant, former judges of the Supreme Court, and Mr Justice H Suresh, former judge of Bombay High Court, and published recently in a leading national daily. But are the arguments on the constitutional position, as presented in the statement, tenable? One wonders.

The three learned former judges are of the opinion that any action taken by the Union government to implement the present nuclear deal without Parliament having given the authority through enactment of a law would be unconstitutional. In support of their observation they cite Articles 73 and 253 of the Constitution and also Entries 6, 13 and 14 in the Union list of the 7th Schedule of the Constitution. Article 73(1) states that “the executive power of the Union shall extend ~ (a) to the exercise of such rights, authority and jurisdiction as are exercisable by the Government of India by virtue of any treaty or agreement”.

Interestingly, the learned judges in their statement focus only on Article 73(1)(a), ignoring the sub-clause (b), and interpret the former as establishing beyond doubt that before the Union government exercises its executive power, there must be a law enacted by Parliament on the subject concerned. The interpretation, however, seems to be faulty.

For, firstly, it disregards the purpose behind the insertion of Article 73. As the marginal note of Article 73 clearly indicates, the only purpose of Article 73 is to earmark the extent of executive power of the Union and, accordingly, Article 73(1)(a) lays down that the Union government may exercise its executive power only on matters on which Parliament is entitled to legislate. In other words, its only implication is that the powers of the Union government are coextensive with the powers of Parliament and not contingent upon the latter.

Hence to stretch one’s imagination to the extent of viewing Article 73(1)(a) as suggesting that the Central government may exercise its executive power on a matter only after Parliament has made a law on it virtually amounts to an act of infidelity to the letter and spirit of Article 73(1)(a).

It is also to refute the opinion of the Supreme Court for, in Ram Jawaya vs State of Punjab, 1955, Naraindas Indurkhya vs State of Madhya Pradesh, 1974 and Bishamber Dayal Chandra Mohan vs State of Uttar Pradesh, 1982, the court held that it does not follow from the Constitution that the executive is competent to function with regard to a subject only when there is already a law in existence, authorising such action.
Of course, the Union government cannot act against the provisions of a law which already exists. But, otherwise, for its functions it does not have to wait for any authorisation to be issued by a law made by Parliament.

Secondly, Article 73(1)(b), bypassed by the learned judges presumably for the convenience of proving their point, clearly implies that whatever “rights, authority and jurisdiction” are necessitated to honour and implement a treaty or agreement shall be exclusively enjoyed by the Union Government. Thus, as allowed by this Article, the Central government may very well go ahead with an agreement it has entered into with a foreign state without any law enacted by Parliament to authorise its move, and this holds good in the case of the present Indo-US nuclear agreement as well.

Of course, there is Article 253 which, according to the three former judges, leaves no doubt about the constitutional rule that treaties, etc, have to be translated into laws, before they are acted upon by the Union government. But this kind of interpretation really falls through as it is based on a reading of the Article, abstracted from its context. Article 253 says: “Notwithstanding anything in the foregoing provisions of this chapter, 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 decisions made at any international conference, association or other body.” The context of this Article is set by the first few words and, further, the chapter referred to in this Article deals with the legislative relations between the Union and the states. Therefore, the true purport of Article 253 is that the constitutional distribution of legislative powers between the Union and the states shall not restrict the power of Parliament to enact laws even on matters included in the state list for the purpose of implementing any treaty or agreement.

The Supreme Court, it may be added, interpreted Article 253 just in this way in Maganbhai vs Union of India, 1969 and Samant vs Union of India, 1994. But the three former judges obviously do not subscribe to this view as they opt for a truncated treatment of Article 253.

For a further evidence the learned judges point to Entries 6, 13 and 14 in the Union List, that deal respectively with atomic energy and mineral resources necessary for its production, participation in international conferences and the like and entering into treaties and agreements with foreign countries and their implementation. Their argument is that these three Entries empower Parliament to make a law in order to enable the Government of India to implement any nuclear agreement it has entered into with a foreign country. But, as held by the Supreme Court in Calcutta Gas Co vs State of West Bengal, 1962 and Harakchand Ratanchand Banthia vs Union of India, 1970, the Entries in the three lists of the 7th Schedule indicate only fields of legislation and not any powers of legislation.

Thus, the Union list is intended not to determine the authority of Parliament as against that of the Union government, but just to demarcate its jurisdiction from that of the state legislature. Accordingly, inclusion of Entries 6, 13 and 14 in the Union list only means that Parliament alone is competent to legislate on these items, whenever necessary, and not the state legislature. Hence it is a bad argument to say that Entries 6, 13 and 14 in the Union list make it imperative for the Government of India to have the sanction of a law enacted by Parliament before it proceeds to implement the nuclear deal with the USA.

(The author is a political scientist and former Principal of Presidency College, Kolkata)