Shivakantjha.org - Treaty Making Power: The Context
Treaty Making Power: The Context
To provide a sound perspective for examining the constitutional validity and propriety of our executive government signing and ratifying the Uruguay Round Final Act, which set up the WTO, it is worthwhile to examine the ambit and reach of the Central Government's Treaty making power under of the Constitution of India, a subject yet not decided by any court by putting this issue under central focus.
Very often Maganbhai v. Union [ AIR 1969 SC 783 ] is considered as stating law on the point, but this view is incorrect for various reasons. The treaty-making power, as such, was not raised in that case. The dispute about the boundary between India and Pakistan in the Rann of Kutch, which had led to an armed conflict, was brought to an end by referring the dispute to an International Tribunal, by whose award both countries agreed to be bound. The issue was decided in view of the International Award. The observations on the treaty-making power were casual as the issue did not turn on Treaty-Making power. Two points are worth noting:
Neither the issues of constitutional limitations nor the governing principles of public international law were presented before the Hon'ble Court, nor were these even noticed by the Court.
The decision in Maganbhai can stand even if the judicial extraversion on the treaty-making power is respectfully ignored.
The observations of Lord Atkin in Attorney General for Canada v. Attorney General for Onterio were quoted with approval both in the majority judgment delivered by Chief Justice Hidayatullah and in his concurring judgment by Justice Shah in Maganbhai v. Union of India without taking into account the relevant provisions of our Constitution.
In Maganbha i the observation on Treaty-Making power is just an obiter. The learned Chief Justice commented:
“The Constitution did not include any clear direction about treaties such as is to be found in the United States of America and the French Constitutions.”
“ A Consultation Paper on Treaty-Making Power under
our Constitution” placed before the National Commission to Review
the Working of the Constitution perceptively observed ( in para 10):
‘If I may say, with the greatest respect at my command, the above statement of law does not appear to take notice of the effect of placing the treaty-making power in the Union List which necessarily means that Parliament is competent to make a law laying down the manner and procedure according to which treaties and agreements shall be entered into by the Executive as also the manner in which they shall be implemented. It bears repetition to say that under our Constitution, treaty-making power is not vested in the Executive or the President – as has been done in some other Constitutions. It is squarely placed within the domain of the Parliament. Theoretically speaking, Parliament can by making a law prohibit the Executive to enter into a particular treaty or a particular kind of treaties; similarly, it can also direct the Executive to enter into a particular treaty or may disapprove or reject a treaty signed and/or ratified by the Executive. It is a different matter that Parliament has not chosen to make a law in that behalf, leaving the Executive totally free to exercise this power in an unfettered and, if I may say so, in an unguided fashion.”
The most glaring mistake in Maganbhai was not to see the patent differentia which existed vis-à-vis the British Constitution and the Indian Constitution, and also to slur over the obvious analogy that exists between the Indian Constitution and the U.S Constitution, despite some procedural differences.
In Gujarat v. Vora Fiddali [AIR 1964 SC 1043] our Supreme Court held that in India Treaties occupy the same status, and adopt the same treaty practice as in the United Kingdom. The British Parliament which enacted G.I. Act, 1935 did not embody the American view of treaties in it. The existing law was continued by the G.I. Act,1935 by the Indian Independence Act 1947, and by our Constitution. But the Treaty-making power in the U. K. is an exercise of the Crown's Prerogative to the extent recognized as still subsisting by the courts and Parliament. Besides, the Crown is under no constitutional constraints (which over-grip our Central Government), and it possesses certain inherent powers which can be used at the international plane. But our Central Government is denied any such power as its powers are only constitutionally conferred powers. What differentiates our constitutional position from the British constitutional position went unnoticed.
Central Government's Treaty-making power: delineation of perspective
(a) General Treaty-making power
In Attorney-General of Israel v. Kamiar , President
(Justice Agranat) [ILR 44] perceptively observed:
“I will summarize what I have said by stating that the system in force in Israel for the conclusion of international treaties is similar to that which is characteristic of the English legal system and which was described by Lord Atkin in Attorney General for Canada v. Attorney General of Ontario  A.C. 326 at 347 in the following words:
‘Unlike some other countries, the stipulations of a treaty duly ratified do not within the Empire, by virtue of the treaty alone, have the force of law. If the national executive, the government of the day, decide to incur the obligations of a treaty which involve alteration of law, they have to run the risk of obtaining the assent of Parliament to the necessary statute or statutes. To make themselves as secure as possible they will often in such cases before final ratification seek to obtain from Parliament an expression of approval….Parliament …… has a constitutional control over the executive; but it cannot be disputed that the creation of the obligations undertaken in treaties and the assent to their form and quality are the function of the executive alone. Once they are created , while they bind the State as against the other contracting parties, Parliament may refuse to perform them and so leave the State in default. In a unitary State whose Legislature possesses unlimited powers the problem is simple. Parliaments will either fulfill or not treaty obligations imposed upon the State by the executive . The nature of the obligations does not affect the complete authority of the Legislature to make them law if it so chooses.”' [ emphasis supplied]
Israeli courts act in accordance with principles similar to those applied by English courts where a statute is in conflict with a treaty, a statute prevails…”
The observations of Lord Atkin in Attorney General for Canada v. Attorney General for Onterio [AIR 1937 PC 82], which emanated from Canada and , were quoted with approval both in the majority judgment delivered by Chief Justice Hidayatullah, and in his concurring judgment by Justice Shah in Maganbhai v. Union of India, should be read in the context of the facts of that case. Lord Atkin was stating law in the context of the British jurisprudence, and treaty practice. But he did say something which is of paramount importance for us whose Government is under constitutional limitations. He observed:
“But in a State where the Legislature does not possess absolute authority: in a federal State where legislative authority is limited by a constitutional document, or is divided up between different legislatures in accordance with the classes of subject matter submitted for legislation, the problem is complex . The obligations imposed by treaty may have to be performed, if at all, by several legislatures: and the executive have the task of obtaining the legislative assent not of the one Parliament to whom they may be responsible: but possibly of several Parliaments to whom they stand in no direct relation. The question is not how is the obligation formed, that is the function of the executive: but how is the obligation to be performed and that depends upon the authority of the competent legislature or legislatures. ” [ italics supplied]
The Privy Council in this case stated two things:
- The Privy Council stated the typical British approach in this case emanating from the Canadian jurisdiction “as the Executive Government and Authority of and over Canada is vested in the Queen.”
- The Privy Council held that legislation implementing an international convention was void as it contravened Sections 91 and 92 of the British North America Act, 1867.
Lord Atkin's distinction, between (1) the formation , and (2) the performance of the obligations created under a treaty, is correct and well understandable under the British constitution. Under the British Constitution the Crown is not a creature of the constitution, it is, of course, an integral part of the constitution. The British constitutional history is an expanded metaphor of the struggle conducted over centuries in the name of people against the absolute power of the Crown. Even this day there is nothing wrong in saying that the Crown has all the powers conceivable except those which it lost to Parliament and the courts in course of the country's grand and majestic constitutional history. It is, hence, understandable to think that the Crown has certain inherited and inherent powers. Treaty is done in exercise of prerogative power by the Crown as it concerns the Crown's foreign affairs. The exercise of this power was not of much consequence till the beginning of the 20 th century. The Crown had all the conceivable power at the international plane as it had not been tamed by any constitutional mandate. Hence the formation of a treaty at international plane was wholly in the Executive's province. In India the Executive possesses no extra-constitutional power. As a creature of the Constitution it is subject both in the matter of the formation of a treaty and the performamce of obligation, to the limitations placed by the Constitution and the law. Whether a member functions in Delhi, or Detroit, it must conform to the Rule of Law.
Even in the United Kingdom the predominant view is that even the Prerogatives of the Crown are under limitations. Despite the specifics of the unwritten and evolutionary constitution the treaty-making power of the Crown is not without limits.
The Crown still retains powers which Parliament or the Courts have not chosen to deprive it of. We call this prerogative power. Under our Constitution no such cobwebs of the past survive. In India the Executive would sink or swim in terms of the Constitution. But limitations on the prerogative of the Crown are now well recognized [ Laker Airways Ltd v. Department of Trade [1977 ] 2 All 2 All ER 182 at 192-193 even in the U.K. Quite recently the House of Lords set a limit to the war prerogative when it declared that, even in time of war, the property of the British subject cannot be requisitioned or demolished without making compensation to the owner of it: see Burmah Oil Co(Burma Trading ) Ltd v. Lord Advocate  2 All ER 348]. It has also circumscribed the treaty prerogative by holding that it cannot be used to violate the legal rights of a British subject, except on being liable for any damage he suffered: see Attorney-General v. Nissan  1 All ER 629 at 637] .
( b ) Treaty-making Procedure in the U.K, the U.S.A. and Australia: the latest trends
(i) The British Treaty-making Procedure
The British Treaty-making practice has been well explained by the House of Commons Information Office [http;//www.parliament.uk/directories/hcio.cfm 5 July 2006 ].
The effect this exposition is to point out:
The lack of formal parliamentary involvement in treaty-making differentiates the British Parliament from most other national legislatures. With few exceptions, most written constitutions stipulate that parliamentary approval of treaties is required before ratification for at least some categories of treaty.
The difference between UK and practice elsewhere is actually smaller than it appears and there are a number of conventions which ensure the scrutiny of treaties by Parliament
- Treaties with direct financial implications require the assent of Parliament because they affect revenue. The most common type are bilateral agreements to avoid double taxation. The texts are laid in the House of Commons in the form of draft Orders in Council and are occasionally debated.
- Treaties which stipulate Parliamentary approval - where an agreement is of a political nature and is known to be controversial, one or both of the governments involved may wish to safeguard its position by writing an express requirement for parliamentary approval into the text.
(iii) The effect of the acceptance (in October 2000) by the British government of the recommendations made by the Procedure Committee in its second report of 1999-2000, Parliamentary Scrutiny of Treaties was to grant the departmental select committees a greater role in the scrutiny of treaties. The Government undertook to provide a copy of any treaty laid before Parliament under the Ponsonby Rule, with an Explanatory Memorandum, to what it regarded as the most appropriate departmental select committee, so that the committee could carry out an inquiry if it so wished. The committee could choose to pass it on to another committee or committees if it thought this appropriate. The normal time for scrutiny by the committee(s) would still be 21 days, although “the Government would aim to respond positively” to requests for an extension. The Procedure Committee also recommended that the Government undertake to accept a recommendation made by the relevant select committee and supported by the Liaison Committee for debate on the floor of the House of a treaty requiring ratification and having major political, military or diplomatic implications.
The fundamental reasons at work under the British procedure
have been thus stated by Oppenheim [International Law Vol. I p. 60-61]:
‘The departure from the traditional common law rule is largely because according to British constitutional law, the conclusion and ratification of treaties are within the prerogative of the Crown, which would otherwise be in a position to legislate for the subject without parliamentary assent. Since failure to give any necessary internal effect to the obligations of a treaty would result in a breach of the treaty, for which breach the United Kingdom would be responsible in international law, the normal practice is for Parliament to be given an opportunity to approve treaties prior to their ratification and, if changes in law are required, for the necessary legislation to be passed before the treaty is ratified.”
The position under our Constitution is materially different. But, it is worth noting that in the U.K. the Crown takes Parliament under so much of confidence that the threats of later embarrassment is avoided. In our country Parliament is ignored.
It is submitted, that whatever role that the Crown still possesses in the U.K. has no persuasive effect under our Constitution rigidly subjecting all the State organs to constitutional limitations and discipline. The impact of the democratic governance was amply felt in Britain also as is clear from the ways the two World Wars were declared. The First World War came as though King George V still possessed undiminished the prerogative of Henry VIII. At 10.30 p.m. on 4 August 1914 the king held a privy council at Buckingham palace, which was attended only by one minister and two court officials. The Council sanctioned the proclamation of a state of war with Germany from 11 p.m. That was all [A J P Taylor, English History 1914-1945 (Oxford) p. 2]. But in the case of the Second World War it was the House of Commons which forced war on a reluctant British government. Parliament approved it. It meant the approval by the people of Britain. Sir Thomas Smith had said aptly the following about on Parliament as far back 1565!:
“And, to be short, all that ever the people of Rome might do either in Centuratis comitiis or tributes, the same may be done by Parliament of England which presenteth and hath the power of the whole realm, both the head and body. For every Englishman is intended to be there present, either in person or by procuration and attorneys, of what preeminence, state, dignity, or quality so ever he be, from the prince (be he king or queen) to the lowest person in England. And the consent of the Parliament is taken to be every man's consent”
(ii) The U S Treaty-making Procedure
In the United States Constitution provides in Article VI, cl. 2, that:
all Treaties made, or which shall be made, under Authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
Thus, all treaties made under the authority of the United States are to be the supreme law of the land, and superior to domestic tax laws [ Cook v. United States , 288 U.S. 102 (1933)].
In the United States the Uruguay Round Final Act, was accepted by adopting a democratic procedure. It was adopted by an enactment by the Congress after a comprehensive deliberations. It prescribed the mode of implementation, and it declared that in Section 3512 the Relationship of Agreements to United States by stating in clear words that United States “law to prevail in conflict”. It said, “No provision of any of the Uruguay Round Agreements, nor the application of any such provision to any person or circumstance, that is inconsistent with any law of the United States shall have effect.” It required the Trade Representative to oversee a Federal-State consultation process for addressing issues relating to the Uruguay Round Agreements that directly relate to, or will potentially have a direct effect on, the States. The Final Act was enacted. This procedure was, perhaps, adopted as the Congress has the constitutional authority to regulate commerce with foreign nations under Article 1 of the Constitution. It is felt that the U.S.A was conscious of the all embracing dimensions of the Uruguay Round Final Act which was not a treaty in the usual popular sense contemplated by the U.S Constitution in Art VI Cl 2. It is distressing that this practical prudence was denied to our authorities.
A distinction is made in the U.S.A. between treaties and agreements. It deserves to be mentioned that the Vienna Convention on the Law of Treaties applies only to treaties and not to International Agreements (Article 2)]. The agreements are generally Executive agreements entered into and signed by the President in exercise of his Executive power. There is a school of thought in the U.S.A. that such agreements are not ‘treaties' under the US Constitutional frame of reference. While adopting the Uruguay Round Final Act, they must have had in their mind what Justice Homes had said in Missouri v. Holland [252 US 416 91920] , after considering various aspects of Constitutional limitations, that even a treaty can run the risk of being struck by “some invisible radiation from the general terms of the Tenth Amendment.”
The above procedure deserves to be contrasted with the Procedure that was followed in India in ratifying the Uruguay Round Final Act. The Peoples' Commission on GATT ( consisting of by V.R. Krishna Iyer, O. Chinnappa Reddy, D.A. Desai and Rajinder Sachar, the former Judges of great distinction ) gives a comprehensive account how our government adopted the Final Act without Parliamentary approval, and without taking the nation in confidence. It was ratified through an executive act done under an opaque system.
(iii) Position in Australia
The Australian Constitution Act, 1900 creates a federal polity distributing powers between the Federal Government and the States. “ A Consultation Paper on Treaty-Making Power under our Constitution, placed before the National Commission to Review the Working of the Constitution perceptively summarizes the Australian position thus:
“Under Section 61 of the Constitution, the power to enter into treaties is an Executive power. ….Be that as it may, a practice has developed in that country whereunder Australia would not ratify a treaty or accept an obligation under the treaty until appropriate domestic legislation is in place in respect of treaties where legislation is necessary to give effect to the treaty obligations. Several proposals have been made by groups of parliamentarians to provide for greater overview by Parliament of the treaty-making power and also to identify and consult the groups which may be affected by the treaty. All of them are strongly critical of the lack of transparency in the treaty-making process. One of the NGOs in that country, namely, National Farmers Federation has suggested that not only the treaties should be laid on the table of the House before they are finalized but the text of the treaty should be accompanied by a statement clearly setting out the important treaty obligations being undertaken by the country thereunder, what effect the treaty will have on the Australian national interests including economic, social and environmental and the extent of consultation already held by affected groups and so on – impact assessment statement, if one can call it, for short. In May, 1996, the Foreign Minister made a statement to the House of Representatives outlining a new treaty-making process. According to this, the treaties will be tabled at least for 15 sitting days, after signature but before they are ratified, to allow for parliamentary scrutiny. This arrangement was to apply to both bilateral and multi-lateral treaties and to their amendments. Where however urgent action has to be taken, a special procedure was devised under which the Agreements will be tabled in the House as soon as possible with an explanation of reasons for urgent action. Further , the States will be consulted before entering into treaties and any particular information about the treaties will be placed before the Premiers and Chief Ministers' Department. The Government has also agreed in principle to append a statement indicating the impact of the proposed treaty to the papers laid before the House. A joint Standing Committee on treaties was established comprising Members of both Houses and consisting of Federal and State Officers who shall meet twice every year and consider and report upon the treaties tabled before the House.”
In Australia Art 50 of the Constitution provides that treaties containing provisions modifying or completing existing laws require for their validity the approval of the National Assembly, which at the time of giving approval may decide that treaty should be implemented by the promulgation of laws.
(iv) Constitutional Provisions in France, Ireland, Japan and South Africa, and others
Under the French Constitution the President is more powerful than the all other organs of the Government. Per Art 52 he can negotiate and ratify treaties. But Art 53(1) prescribes:
“Peace treaties, commercial treaties and treaties or agreements relating to international organization, or implying a financial commitment on the part of the State, or modifying provisions of a legislative nature, or relating to the status of persons, or entailing a cession, exchange or ad junction of territory, may be ratified or approved only by Act of Parliament.”
Art 54 of the French Constitution is of importance. It says:
“If, upon the demand of the President of the Republic, the Prime Minister or the President of one or other Assembly or sixty deputies or sixty senators, the Constitutional Council has ruled an international agreement contains a clause contrary to the Constitution, the ratification or approval of this agreement shall not be authorized until the Constitution has been revised.”
Like India, Ireland ‘accepts the generally recognized
principles of international law as its rule of conduct in relations with other
States [( Art 29(3)]. Art. 29 (5) and (6) of the Constitution prescribes the
“(5.1) Every international agreement to which the State becomes a party shall be laid before the House of Representatives.
(5.2 The State shall not be bound by any international agreement involving a charge upon public funds unless the terms of the agreement shall have been approved by the House of Representatives.
(5.3) This section shall not apply to agreements or conventions of technical and administrative character.
(6) No international agreement shall be part of the domestic law of the State save as may be determined by Parliament.”
Under Art 73 of the Constitution of Japan the Cabinet ‘concludes treaties. However, it shall obtain prior or, depending on circumstances subsequent approval of the Diet.”
Art 231 of the Constitution of South Africa provides detailed rules governing International Agreement: to quote--
“(1) The negotiating and signing of all international agreements is the responsibility of the national executive.
(2) An international agreement binds the Republic only after it has been approved by resolution in both the National Assembly and the National Council of Provinces, unless it is an agreement referred in sub-section (3).
(3) An international agreement of technical, administrative or executive nature, or an agreement which does not requires either ratification or accession, entered into by the national executive, binds the Republic without approval by the National Assembly and he Council within a reasonable time.
(4) Any international agreement becomes law in the Republic when it is entered into law by national legislation; but a self-executing provision of an agreement that has been approved by Parliament is law in the Republic unless inconsistent with the Constitution or an Act of Parliament …”
Oppenheim in his International Law [9 th Ed Vol I ‘Peace' pp. 56-81] has examined at length the treaty-making power and procedure of all the major countries of the world. His exposition suggests that in all major states important treaties are made with the approval of the legislative organ of the state.
( iv) Parliamentary control on Tax Treaties in the U.K. and the USA, Australia, and Canada
In the U.K. the Crown's power of treaty-making, and limitations thereon, have been thus stated in Keir & Lawson's Cases in Constitutional Law:
“There is no doubt that the Crown has full power to negotiate
and conclude treaties with foreign states, and that, the making of a treaty
being an act of State, treaty obligations cannot be enforced in a municipal
court… Can the Crown bind the nation to perform any and every treaty which
it makes? In general it seems that the Crown makes treaties as the authorized
representative of the nation. There are, however, two limits to its capacity:
it cannot legislate and it cannot tax without the concurrence of parliament”
In the U.K. the Tax Treaties are approved by a resolution of the House of Commons, which means, in effect, the British Parliament itself. This effect inevitable follows from certain provisions of the Parliament Act, 1911 similar to which we have incorporated in our Constitution. Pointing out this aspect of the matter Keir & Lawson points out the following in their Cases of Constitutional Cases [5 th Ed p. 54]:
“Once the House of Commons had, by the Parliament Act, 1911 (1 & 2 Geo. 5,c. 13), secured the full and exclusive control of taxation, there was no reason why taxation should not be levied at once under the authority of a resolution of the House”.
In the U.K a Tax Treaty is done through an Order in Council after a resolution is passed by Parliament, and is communicated to the Crown. If any provision under a treaty affects revenue, or the rights of the people, a statutory foundation must be provided. Its clear illustration is the Section 815AA ( Mutual agreement procedure and presentation of cases under arrangements), which was inserted in the British I.C.T.A., 1988 to provide a statutory foundation to Mutual Agreement Procedure part of a Tax Treaty.
In the United States , the Constitution provides in Article VI, cl.2 that all treaties “shall be the supreme law of the land; and the Judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding ”. Under the US practice the President of United States explains to the Senate the considerations involved in framing a tax treaty. The letters of Submittal and of Transmittal pertaining to the Indo-US tax treaty are comprehensively drawn for the full information of the mind of the Senate, and through that to the whole nation.
In Canada every Tax-treaty is an enactment under a separate Act. In Crown Forest Industries v. Canada (1995) 2 S.C.R. 802 the Canadian Supreme Court was considering the Canadian-US Tax treaty as done under the Canada-United States Tax Convention Act, 1984.
In Australia every Tax-treaty is specifically examined and integrated as a statute under the International Tax Agreements Act, 1953.
(c) Treaty-making power where the Government is a constitutional creature (as in India)
Lord Atkin, in Attorney General for Canada v. Attorney General of Ontario, was examining the British view about treaty-making. But he was quite conscious of the fact that in a country with a written constitution, like ours, a different set of considerations would need consideration. He mentioned this fact in so many words in his judgment itself.
The Executive under the Constitution of India is a creature of the Constitution, and, by way of constitutional logic, possesses no “inherent” sovereign power. This view is based on a mandatory norm recognized by international law also as would be evident from what Oppenheim's states in his International Law :
“Constitutional restrictions: It is well established as a rule of customary international law that the validity of a treaty may be open to question if it has been concluded in violation of the constitutional laws of one of the states party to it, since the state's organs and representatives must have exceeded their powers in concluding such a treaty…… For the United Kingdom, constitutional restrictions do not play a prominent part in the conclusion of treaties. … Article 45 [Art 46] of the Vienna Convention – probably reflecting rules of customary international law – allows a state (by way of exception) to invoke non-observance of its internal law as a basis for invalidating its consent to be bound by the treaty only if the rule of internal law relates to competence to conclude treaties, if it is a rule of fundamental importance, and if the violation is manifest, i.e objectively evident to any state conducting itself in the matter in accordance with normal practice and in good faith .”
Lord McNair states the legal position in the same way. But the first point in his “Conclusion” deserves a specific notice because of its contextual relevance: to quote--
“A treaty which is made on behalf of a State by an organ not competent to conclude treaties or that kind of treaty, or which fails to comply with any relevant constitutional requirements, such a consequent of a legislative organ, is, subject to what follows, not binding upon that State….”
“In International Law, nations are assumed to know where the treaty-making power resides, as well as the internal limitations on that power. J. Mervyn Jones in his article on “Constitutional Limitations on Treaty-making Power” examines the effect of constitutional limitations. Two important English writers support the view that constitutional limitations are completely effective under international law. It is time to give democratic orientation to international law. The New Encyclopedia Britannica aptly observes:
“ The limits to the right of the public authority to impose taxes are set by the power that is qualified to do so under constitutional law. ….. The historical origins of this principle are identical with those of political liberty and representative government – the right of the citizens.”
It would be contrary to our Constitution to grant the Executive “extra-constitutional powers”. David M. Levitan has put it felicitously when he observed: “Government just was not thought to have any “hip-pocket” unaccountable powers” [ The Yale Law Journal vol 55, April 1946 vol 3 p. 480]. The theory of inherent sovereign power is anachronistic, hence erroneous in the context of our type of polity we have set up under the Constitution of India. Examining the concept of Sovereignty Oppenheim observes:
“The problem of sovereignty in the 20 th Century. The concept of sovereignty was introduced and developed in political theory in the context of the power of the ruler of the state over everything within the state. Sovereignty was, in other words, primarily a matter of internal constitutional power and authority, conceived as the highest, underived power within the state with exclusive competence therein”
Under our constitutional frame-work the question of inherent power does not arise. The right question is: whether the government possessed the legal power to do what it has done. Prof. Laski observed :
“ We have to make a functional theory of society in which power is organized for ends which are clearly implied in the materials we are compelled to use. The notion that this power can be left to the unfettered discretion of any section of society has been reveled as incompatible with the good life. The sovereignty of the state in the world to which we belong is as obsolete as the sovereignty of the Roman Church three hundred years ago”.
In our days International Law and International Institutions have made great strides towards making the countries of the world good neighbours. Human rights have received such wide expansion and reorganizations that even the levy of income-tax has acquired a human right dimension. Our world has shrunk to become a global village. We are through a process of globalization. In this sort of the world invocation to sovereignty is meaningless. Any action and every action of a public authority is to be weighed on the calculus of rights and duties recognized under municipal law, and also under international law. Under our Constitution it is erroneous to hold that any organ of the State has any inherent Sovereign Power. This view brings to mind Hobbes' Leviathan: “The Leviathan or commonwealth is ‘an artificial man', sovereignty is its soul, the magistrates are its joints, ‘reward and punishment, by which fastened to the seat of the sovereignty every joint and member is moved to perform his duty, are the nerves that do the same in the body natural.” But this doctrine of inherent sovereign power of the Executive was tamed finally by the Bill of Rights whereunder it lost all many powers including the power over taxation, inaugurating an effective control of the Executive by Parliament.
The Report of the Peoples' Commission gives a graphic account of the constitutional limitations on Treaty-Making Power: to quote--
“The limitations on the exercise of the Treaty-making power flow from certain principles which are fundamental to constitutional governance of India. The first is the general principle of accountability which requires government to account to the people for every exercise of power through the aegis of institutions set up by or under the Constitution. Such accountability may be through the law which lays down norms which discipline and govern the exercise of the power. Where no such law exists –and none exists to discipline the exercise of the treaty-making power – the government is not free to do what it likes. Where the government chooses to proceed without serious recourse to any form of accountability, other institutions of governance cannot stand idle by. Where Parliament is rendered powerless, other institutions must secure this accountability to such measure as may be deemed necessary. Where something is done in secret, simply breaking the veil of secrecy may be enough. It all depends on the facts and circumstances. The second principle which is fundamental to the rule of law is that no person's rights can be altered without reference to ‘law'. If the executive simply interfere with the exercise of rights or alter them in any way other than de minimus infringement, this would constitutionally improper and call for the interdiction of judicial process. The third set constraints flow from the basic structure of the Constitution. Although the basic structure doctrine was first enunciated to contain an over-extensive use of power to amend the Constitution, the principles underlying the basic structure are also crucial aids to interpretation and
factors to be borne in mind when considering the exercise of the executive power.”
(d ) Art 73 of the Constitution of India
In terms of Art. 73 of the Constitution the executive power
of the Union extends to the matters with respect to which Parliament has power
to make laws. That power is co-terminus with the Union's legislative power under
entries 13 and 14 of List I of the Seventh Schedule 29a . Under Art. 53 of the
Constitution, the executive power of the Union vests in the President. The Constitution
requires that the executive power of the President must be exercised in accordance
with the Constitution. Article 73 is also “subject to the provision of our Constitution”.
It is true that Article 253 enables Parliament to make laws for implementing
any treaty agreement or convention with any other country or countries or any
decision made at international conferences, associations or other body. Article
73 (1) (b) provides for the executive power of the Union extends also in respect
of the exercise of such rights, authority and jurisdiction as are exercisable
by the Government of India by virtue of any treaty or agreement. Articles 253
and 73 (1) (b) both deal with an ex post facto situation,
that is, a consequential situation arising out of an international treaty, agreement
or convention already entered into. They confer the necessary power to make
and implement such treaty, agreement, etc., but nothing can be done contrary
to the Constitution of India: for example, the Union Government cannot barter
away the sovereignty of the people of India by entering into a treaty making
India a vassal of another country and then invoke Articles 253 and 73 (1) (b)
to implement the treaty. Such a treaty would be void ab initio being
repugnant to the basic features of the Constitution, namely, the sovereignty
of the people.
In India, exercise of all powers, executive or legislative, are under constitutional limitations. Our Constitution has not granted the executive any ‘exclusive' power to enter into a treaty or agreement. Our Constitution subjects the executive power of treaty making to the following two limitations:
It must not contravene our fundamental rights, and must not breach the basic features.
It must satisfy the existence of the conditions precedent in exercise of power under Art 253, i.e. there must exist an agreement done by the executive without transgressing constitutional limitations.
K. Ramaswamy, J said in S. R. Bommai v. Union of India (AIR 1994 SC 1918) : “The State is the creature of the Constitution”. In India the executive derives power to enter into treaties from Art. 73 of the Constitution. The executive government of our country possesses no inherent powers. It is true that exercising such powers the zone of the executive operation is co-terminus with the expanse of legislative power in view of the entries 13 and 14 of List I of the Seventh Schedule. But the exercise of these derivative powers is themselves under constitutional limitations.
This treaty making power is to be read with Art 253 of the Constitution, which allows Parliament to make laws implementing a treaty notwithstanding the fact that the subject matter of the treaty is contained in List II of the Seventh Schedule containing subjects within the legislative competence. But the executive power is, as per Art 53, to be exercised it in accordance with the Constitution. Though Article 253 does not mention that it is under constitution limitations yet on proper construction even this is under constitutional limitations. It contemplates “any treaty, agreement or convention”. If the executive enters into a treaty, agreement or convention in breach of the basic features of our Constitution, or the Constitution's mandatory mandate, then such an agreement, treaty or convention is constitutionally invalid: hence domestically inoperative and non est . Our courts, as the creatures of the Constitution, must uphold the Constitution by declaring such a treaty, agreement or convention bad. Ours is a written constitution under which all the organs of the polity are the creatures of written constitution: hence bound by its limitations, both express and implied. Our Supreme Court clearly stated in Ajaib Singh v. State of Punjab (AIR 1952 Punj. 309, 319) :
“Neither of Articles 51 and 253 empowers the Parliament to make a law which can deprive a citizen of India of the fundamental rights conferred upon him”.
(e)A miscomprehension which must be removed.
The simplistic view, adopted by many under the influence of the British constitutional practice, is that a Treaty is not a matter of domestic concern unless it affects:
(a) the law of the land, and
(b) the vested rights protected under the law.
These issues are to be considered under the parameters of the Constitution of India:
The Executive power, under our Constitution, is co-terminus with the powers of Parliament. But the Executive power, too, must be exercised not de hors the constitutional provisions. No Treaty can authorize, even in the realm of the exercise of the Executive power, to ride roughshod over our Constitution's commitments to the nation. In most matters the exercise of the Executive power “are not far removed from legislation”(Jayantilal Amritlal AIR 1964 SC 648). Hence the exercise of the executive power cannot avoid constitutional limitations.
The Executive can coerce our Parliament to implement a Treaty provisions by hoisting the dread of India's international delinquency. Chapter and verse can be quoted from the text-books of International Law and the decisions of the international tribunals to mesmerize and coerce our representatives.
Executive can subject our country to several international and domestic commitments of momentous consequences. Every student of history knows that the Weimer Constitution of Germany was destroyed by the covert and overt maneuverings of the Executive Government. Perhaps, perish the thought, the bell is tolling for our Constitution too.
- The Report of the Peoples' Commission on GATT has rightly summarized the correct constitutional principle when it said :
“The Constitution makers intended the government to be possessed of an executive power which is wider than the narrower duty to give effect to legislation (see Ram Jawawayya Kapur v. UoI AIR 1955 sc 549). But in exercise of this wider power, the rights of citizens cannot be taken away without specific legislative sanction and authority ( Bijoe Emmanuel AIR 1987 SC 788).This rule is fundamental and a necessary adjunct to the recognition of a wide executive power. Equally, in normal circumstances, it is somewhat sanguinely assumed that all exercises of the executives power would be consistent in a manner consistent with the principles of the basic structure of the Constitution. But, normal times tread unwarily into abnormality. That is why the touchstone of the basic structure has been inducted to discipline the exercise of even those special exercises of
sovereign power such as the imposition of President's Rule and the like (see S.R. Bommai (1994) 3 SCC 1; …. The older view that the exercises of executive power are immune from judicial review has now correctly been abandoned (see Central for Civil Services Union v. Minister of Civil Service (1984) 3 All ER 935).”
It is often said that the treaty provisions, when they offend a law, or cause prejudice to the vested rights of people, require Parliamentary consent for implementation. But the executive has open to it vast areas wherein it is free to implement treaty terms by purporting to exercise its powers in the executive realm which is much wider than the conventionally conceived legislative realm. It is submitted that this sort of fine distinction is, under the present-day polity, totally otiose and anachronistic.
The point emerges very clear through the fact that despite the laws protected under the 9 th Schedule to the Constitution, the Government is liberally granting corporate zamindaris by facilitating the acquisition by the big corporations, almost free, huge plots of land even by uprooting many humble citizens.
(f) No Power to the Executive at the International Plane.
It is worthwhile to consider a specific constitutional question:
what was the understanding at the time the Constitution was drafted, and what
emerges from the various provisions of our Constitution? The Constitution vests
executive power in the President but he is not in the position in which he,
as Professor Woodrow Wilson noted, ''has the right, in law and conscience, to
be as big a man as he can'' and in which ''only his capacity will set the limit.''
In India it is wrong to think that powers of external sovereignty passed from
the Crown to our Republic of India. Our Constitution does not grant our Executive
any external sovereignty through affirmative grants. Under our Constitution
it is wrong to think that power over external affairs, in origin and in its
essential character, is different from that over internal affairs. The President
speaks or listens as a representative of the nation but only within Constitutional
limitations. The Executive under our Constitution cannot preempt law. If this
is allowed to happen, our Constitution may be driven by the Executive to commit
suicide by its own boot-straps; and our Democracy will come to an end. The Constitutional
limitations within which all Executive power is to be exercised are set forth
itself. The Sovereign status of the Constituent Assembly had been boldly acknowledged
by the great Indian leaders. Granville Austen very perceptively observed:
“ Gandhi expressed the truth first ---that Indians must shape their own destiny, that only in the hands of Indians could India become herself –when in 1922 he said that Swaraj would not be a gift of the British Parliament, but must spring from ‘the wishes of the people of India as expressed through their freely chosen representatives'. Twenty-four years later these words were repeated during the opening session of the Constituent Assembly; they were, some said, the Assembly's origin; all agreed that they were its justification.”
“The Assembly was the people's. As Nehru said, the British could now dissolve the Assembly only by force. ‘We have gone through the valley of the shadow, and we will go through it again for true independence, he said.”
Jawaharlal Nehru had declared that India's constitution-making could not be “under the shadow of an external authority”. The Cabinet Mission had come to New Delhi to help the Viceroy set up in India a machinery by which Indians could devise their own constitution. Our Constitution was not to be one written in the colonial office of the imperial powers and passed by the British Parliament. Austen aptly points out that the desire for a “home-made' constitution is the source of what K.C. Wheare has named the “principle of constitutional “ autochthony”, or desire for a constitution sprung from the land itself (Wheare, Constitutional Structure of the Commonwealth p. 89). The Constituent Assembly arrogated to itself an absolute authority to control its being. It declared:
“The Assembly shall not be dissolved except by a resolution assented to by at least two-thirds of the whole number of members of the Assembly.”(Constituent Assembly Rules of Procedures: chap. III, Rule7)
The unique character of our constitution-making revealing its sovereign competence in constitution-making ( in contradistinction to its acknowledgement that whilst acting as a legislative body under the federal system of the 1935 Act. Austen says:
“India was an emergent , formerly colonial territory, where a sovereign people framed their Constitution in a Constituent Assembly while at the same time working a federal government that pre-existed independence --the federal system of 1935 Act.”
The Indian Independence Act came into effect on 15 August 1947, merely recognizing what was fait accompli . In terms of Public International Law it was a mere recognition of cognitive nature by a defunct and uprooted foreign power. The Act did not grant sovereign status to us either in domestic sphere or at the international plane.
Our Constitution organizes and distributes the whole of the State power through its well-knit structure leaving the Executive with no hip-pocket with reserve power outside the ken of the Constitution. This deduction is amply borne out by the provisions of our Constitution viz.:
Art 53(1) The Executive power of the Union shall be vested in the President and shall be exercised by him either directly or through officers subordinate to him in accordance with the Constitution.
Art. 73 Extent of executive power of the Union. ---(1) Subject to the provisions of this constitution , the executive power of the Union shall extend…….
Art. 245 Extent of laws made by Parliament and the Legislatures of the States.---- Subject to the provisions of this Constitution , Parliament may….
Art. 372. Notwithstanding the repeal by this Constitution of the enactments referred to in article 395 but subject to the other provisions of this Constitution, all the law in force in the territory of India immediately before the commencement of the Constitution shall continue in force therein until altered or repealed or amended by a competent Legislature or other competent authority.
David Levitan, examining an analogous issue in the context of he U S Constitution, struck an apt note by highlighting the reductio ad absurdum of the argument when he so perceptively said:
“Were one to assign binding effect to the more sweeping statements on the scope of the external powers, then, it would appear that treaty provisions even violative of of substantive phrases of the Constitution , i.e., the bill of rights, or the Fifth Amendment, would be binding on the United States.” [ The Yale Law Journal VOL 55, April, 1946 No 3 page 467 referring to Law of Treaties, Harvard Draft (1935) 29 Am. J. Int L (Supp.) art 24; and W.B. Cowles, Treaties and Constitutional Law (1941)].
Reflecting on the idea of “inherent power” of the government at the international plane, David M. Levitan further observes:
“Regarding the “inherent” powers doctrine, it is well to add, that though the existence of such powers has sometimes been referred to by the courts and by writers on public law, there is little justification for the perpetuation of such a theory. Its introduction was contrary to the spirit of a written constitution, Whether or not a written constitution is the most desirable basis of government, as long as we live under such a document there appears little room for the theory of “inherent” powers. Instead a liberal and broad interpretation of such provisions is more in harmony with our philosophy that the Constitution limits governmental authority. The argument that the interpretation and reinterpretation of constitutional phrases in the light of modern conditions makes little more than a fiction out of the notion that we are living under the Constitution, will not be denied. Our government should continue to meet the ever changing needs of the people within the frame-work of the general philosophy of the supreme Constitution with some specific prohibitions.”
Michael D. Ramsey revisits the Inherent Powers Theory, and concludes his exposition ( again in the context of the US Constitution):
“In short, the drafters (of the Constitution) thought about foreign affairs powers as they did other powers. Foreign affairs powers were granted to the national government, or denied to the states, by the terms of the national government's governing document. Careful attention to detail was required to achieve the best allocation of powers between the national government and the states. This is confirmed by the language of both the Articles and the Constitution, by practice under the Articles and by the drafters' own explanation of what they had written. They had no idea of an inherent division of powers into “external sovereignty” and “internal sovereignty” that automatically governed which powers would be held by the national government and which by the states, but were groping for the right balance in a very real, practical manner--- carrying over allocations from the Articles to the Constitution where they seemed to work. And making adjustments where problems had arisen.” [“The Myth of Extra-constitutional powers” in William & Mary Law Review Vol 42 No. 2 , Dec. 2000 at p. 431]
He points out that the U S Constitution was not drafted with a background assumption of ‘inherent powers' in foreign affairs. He found it clear from the following pointers:
First, the constitutional text itself delegates and allocates core foreign affairs powers directly, which would be unusual if inherent powers were widely assumed.
Second, the drafters explained the foreign affairs powers of the national government under the new Constitution as grants of power, not as confirmations of existing inherent powers . No one suggested that the Constitution's grants of foreign affairs powers were superfluous, although members of the constitutional generation were quick to point out superfluous provisions in other contexts.
Third, the Articles of Confederation- an important model for the Constitution in the foreign affairs area- had no concept of inherent foreign affairs powers. The text of the Articles did not grant Congress certain key foreign affairs powers- such as the power to regulate foreign commerce and the power to enforce treaties and the law of nations- and Congress therefore thought it lacked these powers. No one suggested that Congress had these powers inherently. The only remedy for Congress' lack of textual foreign affairs powers was thought to be amendment, a strategy pursued piecemeal and without success in the mid-1780s, and ultimately accomplished by the Constitution's grant of broader textual powers.
The American Constitution, which provided us with a model of a written constitution with fundamental rights [and the borrowings wherefrom are so evident in our Constitution (especially in Art 14),] provides an appropriate perspective for comprehending constitutional issues under our Constitution. The Attorney-General, addressing the court in the Five Knights' Case ( one of the state trials of Stuart England ) for the Crown asked, “Shall any say, The King cannot do this? No, we may only say, He will not do this.”[Howell's State Trials 45 (1627)]. It was precisely to ensure that in the American system one would be able to say, “The State cannot do this,” that the people in America enacted written Constitution containing basic limitations upon the powers of government. We have done precisely the same under our Constitution.
(g) Light from Hamdan v. Rumsfeld, Secretary of Defense , et al decided by the U.S. Supreme Court on June 29, 2006
The United States Supreme Court has in its decision dated June 29, 2006 (No 05-184. 2006 has made out propositions, inter alia, these:
"It supports the proposition not only that these military commissions are inconsistent with federal statutes and U.S. treaty obligations, but also with the broader basic principle that mere assertions of military necessity are not sufficient to overcome serious judicial review of a president's conduct."
(ii) ‘ The Court's conclusion ultimately rests upon a single ground: Congress has not issued the Executive a "blank check." Cf. Hamdi v. Rumsfeld, 542 U. S. 507, 536 (2004) (plurality opinion)'. [ Justice Breyer , with whom Justice Kennedy , Justice Souter, and Justice Ginsburg join, concurring.]
The Court upheld its commitment to uphold constitutional protection and international human rights.
The Court showed no appreciation for the fact that the Congress and
the President might well know more than the Judges do about the security needs of the U.S.
The Detainee Treatment Act, 2005, which included a provision that ‘no
court, justice, or judge' had jurisdiction to hear application for habeas corpus from any prisioner detained at Guantanamo, could not stand in the way of the Court in exercising the power of Judicial Review.
The Court rejects the view that it is the President, not the Court, who has expertise to decide an issue of the type considered in Hamdan.
United States v. Curtiss-Wright Export Corporation is referred only in the dissenting judgment. The general tenor of the Court's judgement strikes a note clearly different from that in curtiss- Wright
But much before this decision in the Youngstown Sheet and Tube Co v. Sawyer [343 U S 579 (1952) ], the concept of the ‘Executive Power” was extensively considered, and multiple opinions were delivered. During the Korean War President Truman had seized certain steel industry in the throes of strike. It was defended as an exercise of ‘executive power' including the power wielded as the Commander-in-Chief. Six-to-three the Court rejected this argument, and held the seizure void.
(h) Constitutional provisions governing the Tax Treaties.
Art. 265 of our Constitution says : “No tax shall be levied or collected except by authority of law.” Law refers to a valid law. In the context of Article 265 of the Constitution it means an Act of the Legislature. In its import it states the British position resting on the Bill of Rights that “TAXATION in England must be authorized by statute.” Hood Phillips aptly says:
“It was supposed to have been settled by Magna Carta and by legislation in the reigns of Edward I and Edward III that taxation beyond the levying of customary feudal aids required the consent of Parliament.”.
(2) of the Parliament Act 1911 with only one change that for “repeal” used in the UK Act, Article 110 (1) (a) uses the expression “abolition.” On this point our Constitution prefers the comprehensive definition of the terms pertaining to taxation than the Government of India Act, 1935 used in its section 37. Article 109 of the Constitution of India deals with the special procedure in respect of Money Bills. The Parliament Act, 1911 of the UK put an end to the power of the House of Lords to amend or reject a Money Bill. After this act they can cause delay for a period no more than a month. Under our Constitution a Money Bill originates only in the House of the People. The Council of States has no competence to reject or amend a Money Bill : only suggestion can be made which the House of the People may accept or may not accept. But this must be within 14 days of the receipt of Bill otherwise the Bill is deemed to have been passed by both Houses at the expiration of period of fourteen days from the date of the receipt of the Bill. The Government of India Act 1935 did not draw up distinction between Money Bills and other Financial Bills. The Constitutional provisions in our country establish full and exclusive authority of our Parliament in matters of taxation . In effect the full and exclusive authority in matters of taxation is of the House of the People, as it is in the United Kingdom. It is a constitutional principle of highest importance that neither we can be taxed through an executive fiat, nor untaxed through an executive concession. To tax or to grant exemption form the two facets of the same thing.
In all the major countries, which have adopted OECD Model of tax- treaties, such treaties are done with legislative approval. It is worthwhile to quote Klaus Vogel who states [Klaus Vogel on Double Taxation Conventions ( 3 rd . ed. Kluwer Law) pp. 23-25]:
“In parliamentary democracies, the executive ordinarily must obtain the consent of parliament to conclude important agreements…”
( i )The International Law observation-post.
Our Raw Realities
The profile of the political structure of the world shows that it consists of sovereign States at different levels of political integration, socio-economic attainments, socio-political morality and cultural achievements. Some of them have vast potentialities of development whereas many others have not much scope to do so on account of poor natural and human resources. The countries less endowed with resources are ironically more prone to assertions of their sovereignty. Many of them tried, in varying measures, to turn their countries into spheres of darkness where the possessors of the ill-gotten wealth can find best places to keep that un-noticed by those who are swindled. Many of such States are the members of United Nations, and are the recognized players in international politics because of their sovereign status. The tsunami of economic globalization has subordinated the political realm to the economic realm established under the overweening majesty of Pax Mercatus. Geza Feketeluty has brought out this reality thus:
“Clearly, the reality of globalization has outstripped the ability of the world population to understand its implications and the ability of governments to cope with its consequences. At the same time, the ceding of economic power to global actors and international institutions has outstripped the development of appropriate global political structures.” [ 2001 Britannica Book of Year Book p. 191].
In the last five decades of the 20 th century great strides were made in the sphere of public international law. At the time of Dutch jurist Hugo Grotius the States that mattered were only a few. The rules resembled the rules of game in which sharp practices were the privileges of the mighty. The range of the subjects of international law has remarkably increased in the recent decades. With the break-up of colonialism in the post-Second World War era, a host of new States have emerged. New States are being minted even now. But a most dominant theme is that international law is being shaped by the desires of the mighty States to suit their interests in furtherance of their own economic gains; and for other geopolitical reasons. International organizations have acquired international personality. With the onset of the economic globalization, the economic organizations and institutions, like the IMF, World Bank, and the World Bank emerged as international persons. Because of their enormous power, they are in a position to condition the evolution of international law after their heart's desire. As they exist to protect and advance the interests of the corporate imperium , this results in the triumph of Pax Mercatus . This sort of system is bound to be both opaque and undemocratic. We are duty-bound to reflect on this emerging scenario from the observation-post of our Constitution, and the general principles of civilized jurisprudence.
In this world we are faced with complex nerve-wrecking problems. Our executive may through its commitments at the international plane, give rise to international customary law on a particular point; or may make our country party to a treaty having domestic or extra-domestic impact. This situation is likely to be worse as the institutions of economic globalization are clearly in a position to call the shots. Under such circumstances we must uphold our Constitution. No norm of international law can be so forged or evolved as to enable the executive to defile or deface our Constitution. It is hoped that our Supreme Court would uphold our Constitution against the onslaughts by the lobbyists of international law of this neo-classical phase. Long before this situation, Georg Schwarzenberger had noticed this phenomena when he laconically said:
“The doctrine of the supremacy of international law over municipal law appeals to the amour proper of international lawyers and has its attractions de lege ferenda. In lex lata , it corresponds to reality on the –always consensual—level of international institutions, in particular international courts and tribunals.” [ A Manual of International Law 5 th ed pp. 46-47].
The new realities of this phase of Economic Globalization have been well described by Prof. Sol Picciotto of the Lancaster University with whom this author had the privilege of discussing the subject at length [Sol Picciotto, “International Law: the Legitimation of Power in World Affairs” in The Critical Lawyers Handbook 2(Pluto Press 1997) pp. 13-27] :
“ Significantly, the new wave of debate in the 1980s, as writers from various perspectives have sought to rethink the nature and role of law in international affairs, pre-dated the major changes in inter-state relations which occurred in the 1990s. Much of the writing on international law in the 1970s accepted a functionalist and even instrumentalist view of law, arguing for an adaptation of law to the changed 'realities' of international society, especially the creation of many new states by decolonization.”
Then Prof Picciotto mentions the crude realties of the present-day international geo-politics: he says -
“ Thus, especially in the hands of the dominant Yale theorists of the Lasswell-McDougall school, it tends to result in apologia for the perspectives of authoritative decision-makers, and especially of US foreign policy-makers, cloaking their policies in value-justifications based on generalised concepts of the human good.”
It appropriate to sound a note of caution in any reliance on Art. 51 of the Constitution which directs the State to “foster respect for international law and treaty obligations in the dealings of organized peoples with one another.” The norms of International Law in order to be recognized such norms must receive judicial recognition by our Constitutional Courts. No rule can be recognized as a rule of international law unless it is judicially so recognized . This is required most in our time when the astute players of the dominant economic realm shape the present-day international law. It becomes the duty of our constitutional courts to preserve and maintain the supremacy of our Constitution and the law. Realities of the Economic Globalization requires now, as never before, that while formulating our view as to International Law in the context of Art. 51 of our Constitution, we should take into account the realities which are quite often created and shaped through the Art of Corruption and the Craft of Deception. After all it is for our Superior Courts to ascertain which norms should be treated the norms of customary international law. Lord Alverstone CJ said, in West Rand Centrla Gold Mining Co v R  2 K.B. 391 that ‘the international law, sought to be applied must, like anything else, be proved by satisfactory evidence which must shew either that the particular proposition put forward has been recognized and acted upon by our own country….' And Lord Atkin said in Chung Ch Cheung v. R [ (1938) 4All ER 786 at p. 790]:
“….so far at any rate as the courts of this country are concerned, international law has no validity save in so far as its principles are accepted and adopted by our own domestic law”.
(l) Certain dicta of our Supreme Court are clearly obiter, and per incuriam
Certain observations made by our Supreme Court on the Treaty-making power are both obiter and per incuriam : to illustrate -
(a) In Maganbhai Ishwarbhai Patel v. Union of India. After relying on the following observation of Lord Atkin in Attorney General for Canada v. Attorney General for Onterio, Which our Supreme Court quoted in extensor :
“It will be essential to keep in mind the distinction between (1) the formation, and (2) the performance, of the obligations constituted by a treaty, using that word as comprising any agreement between two or more sovereign States. Within the British Empire there is a well-established rule that the making of a treaty is an executive act, while the performance of its obligations, if they entail alteration of the existing domestic law, requires legislative action.”
our Supreme Court observed:
“The executive is qua the State competent to represent the State in all matters international and may by agreement, convention or treaties incur obligations which in international law are binding upon the State. But the obligations arising under the agreement or treaties are not by their own force binding upon Indian nationals.”
(b)In Union Of India v. Azadi Bachao Andolan [(2003) 263 ITR 706 SC], a Division Bench of this Hon'ble Court, per Justice B.N. Srikrisna, observed:
“The power of entering into a treaty is an inherent part of the sovereign power of the State. …. The executive power of the Union is vested in the President and is exercisable in accordance with the Constitution. …”
These above observations are per incuriam for reasons, inter alia , the following:
(1) This Hon'ble Court went wrong in relying on Lord Atkin's observations as the Privy Council was considering the British position, and not the provisions analogous to what we have under our Constitution. He himself made this reservation by observing:
“ In a unitary State whose Legislature possesses unlimited powers the problem is simple. Parliaments will either fulfill or not treaty obligations imposed upon the State by the executive .
(2) It is a patent mistake to consider the Executive as the exclusive repository of unbridled power at the international plane in entering into a treaty, or an agreement, or arrangement. It is correct that every State possesses treaty-making capacity. The Executive is as much an organ of the State as is the Legislature or Judiciary. It is true that the Treaty-making capacity is generally exercised by the Head of the State or its government. But both the domestic law and international law treats the Executive as an authorized organ which can run the risk of acting without capacity if it goes in breach of the constitutional limitations on its capacity. Oppenheim observes:
“If the Head of State ratifies a treaty without first fulfilling the necessary constitutional requirements (as, for instance, where a treaty has not received the necessary approval from Parliament of the state), his purported expression of his state's consent to be bound by treaty may be invalid.”
(3) “It is well established as a rule of customary international law”, says Oppenheim, “ that the validity of a treaty may be open to question if it has been concluded in violation of the constitutional laws of one of the states party to it, since the state's organs and representatives must have exceeded their powers in concluding such a treaty.. Such constitutional restrictions take various forms.”
(4) Art. 53 of the Vienna Convention states that if a treaty which at the time of conclusion conflicts with peremptory norm of international law, it would be void. And Article 45 of the Vienna Convention – probably reflecting rules of customary international law – allows a state (by way of exception) to invoke non-observance of its internal law as a basis for invalidating its consent to be bound by the treaty only if the rule of internal law relates to competence to conclude treaties, if it is a rule of fundamental importance, and if the violation is manifest, i.e objectively evident to any state conducting itself in the matter in accordance with normal practice and in good faith .
(5) Nothing turns on the concept of “inherent sovereign power” theory because sovereignty inheres in our Constitution, and it is essentially, as Oppenheim says, “ a matter of internal constitutional power”. Oppenheim, while analyzing what Sovereignty means in the 20 th century, observed:
“Sovereignty was, in other words, primarily a matter of internal constitutional power and authority, conceived as the highest, underived power within the state with exclusive competence therein”
(6) Nothing turns on the idea that power of entering into a treaty is an ‘inherent part of the sovereign power of the State”. The sovereign power of our State is structured under the Constitution. We have permitted the Executive to exercise Treaty-making power ‘subject to the provisions of this Constitution”. Even if our Parliament wants to play its legislative role (as was done by the U.S Congress in making the Uruguay Round Agreement Act ), it must act ‘subject to the provisions of this Constitution”. The Executive cannot, transgress fundamental constitutional limitations.
(7) If the Executive is granted unbridled power at the international plane to act as the legitimate surrogate of the State itself, the consequences would be disastrous. If it so happens, perish the thought, the Executive, already subservient to corporate imperium under the U.S hegemony,may through Treaty terms do away with our Supreme Court ( this reductio ad absurdum has already taken place to some extent) can grant legislative powers to the creatures beyond our ken, and constitute corporate oligarchy on the wreck of our democracy. This Petitioner quotes again what Bronowski said in the Ascent of Man :
“There are many gifts that are unique in man; but at the centre of them all, the root from which all knowledge grows, lies the ability to draw conclusions from what we see to what we do not see.”
(8) Even the U S Supreme Court has observed in Hamdan's Case , decided in June, 2006 that ‘ The Court's conclusion ultimately rests upon a single ground: Congress has not issued the Executive a "blank check. [ Justice Breyer , with whom Justice Kennedy , Justice Souter, and Justice Ginsburg join, concurring.]
(9) ‘A number of states in their constitutions have made express provision for limitations on their national sovereign powers in the interest of international co-operation. These provisions are to the effect that certain sovereign rights and powers of the state may be limited in connection with international organiztions, or may be conferred upon or transferred to international organizations. This has particularly become necessary in some states whose constitutions provide for certain rights and powers, for example the power to legislate, to be exercised only by organs of the state: by becoming a member of an international organization which can in some degree be said to be exercising such powers, the state, in absence of a provision envisaging a transfer of those powers, could be said to be acting unconstitutionally and the resulting exercise of the powers by the organization could be said to be ineffective within the state.'
Under the Constitution of India there is no provision for limitations on the national sovereign powers of our State.
(10) While appreciating the above-mentioned points, none should lose sight of a historic fact that if Parliament ends, if this Court goes, the Executive would lose nothing, rather it would gain everything that it lost over centuries of democratic struggle. Even if Parliament goes or becomes inert, even if our Superior Courts lose everything which has made them the protectors of the Constitution ( and so of democracy), the Executive would remain embodying in itself all the legislative and judicial powers as it was during the times of the Stuarts or before. After a lot of research this Petitioner submits that at present there is a global conspiracy against democracy of the sort our Constitution contemplates. Power is most delicious to the executive. There is nothing like a ‘ democratic executive'. Lust of power is chronic. The lust begets enchanting delirium that the wielder of power is the wisest. Then the go-getters abound. Constitutional discipline is subverted. The learned ignoramuses become grand wordsmith for them. History tells us that when such things happen democracy and constitution expire. A Constitution tames the executive by subjecting it to the Rule of Law.
(m) The Ambit of Art 253 of the Constitution
Shah J. in his separate but concurrent opinion in Maganbhai observed:
“The effect of Article 253 is that if a treaty, agreement or convention with a foreign State deals with a subject within the competence of the State Legislature, the Parliament alone has, notwithstanding Article 246(3), the power to make laws to implement the treaty, agreement or convention or any decision made at any international conference, association or other body. In terms, the Article deals with legislative power; thereby power is conferred upon the Parliament which it may not otherwise possess. But it does not seek to circumscribe the extent of the power conferred by Article 73. If, in consequence of the exercise of executive power, rights of the citizen or others are restricted or infringed, or laws are modified, the exercise of power must be supported by legislation : where there is no such restriction, infringement of the right or modification of the laws, the executive is competent to exercise the power.”
It is most respectfully submitted that as the aforementioned observation is obiter . The Supreme Court did not consider the following relevant points:
The point to be seen is whether the Executive is free from all constitutional limitations when it signs and ratifies a Treaty. If it is even then subject to constitutional limitations, any departure by it from the peremptory constitutional norm affecting competence, would surely render the Treaty ultra vires .
As the exercises of all legislative power, and all executive power are subject to constitutional limitations, the exercise of such powers, with reference to Art. 253 would clearly be subject to constitutional limitations.
If a treaty or Agreement at any international deliberative forum is done in breach of fundamental constitutional limitations, such a Treaty or Agreement is ab initio void: it dies at its nativity itself. Hence nothing survives to be given an effect under Art. 253 of the Constitution. The logical principle that nothing comes out of nothing ( ex nihilo nihil fit ) applies.
In Ajaib Singh v. Punjab AIR 1952 Punj 309 (321) [ reversed on other points in, by State of Punjab v. Ajaib Singh AIR 1953 SC 664] held that despite Art. 253, other provisions of the Constitution , such as Fundamental Rights, cannot be violated in making laws. Again, no cession of Indian territory can be made without amendment to the Constitution.
Assuming arguendo that a Treaty or Agreement is valid, yet the Executive power would not extend to implement it by invoking Art. 253 the Constitution, as it cannot be contemplated that it was ever contemplated that the federal features can be knocked down by side winds.
(n) Universal Notice Presumed
It has been submitted, on the authority of Oppenheim's International Law , that even in the matter of treaty-making constitutional limits of competence cannot be transgressed. Besides International law permits no derogation from jus cogens . Art. 53 of the Vienna Convention states that if a treaty which at the time of conclusion conflicts with peremptory norm of international law it would be void. The doctrine that fraud unravels is the very jus cogens in the jurisprudence of international law. “Because of the importance of rules of jus cogens in relation to the validity of treaties, Article 66(a) of the Convention provides for the compulsory jurisdiction of the International Court of Justice (unless the parties agree to arbitration) over disputes concerning the interpretation or application of Article 53.”
In International Law, nations are assumed to know where the treaty-making power resides, as well as the internal limitations on that power [ Seervai, Const. Law of India Vol I pp. 306-307]. J. Mervyn Jones in his article on “Constitutional Limitations on Treaty-making Power” examines the effect of constitutional limitations  35 American Journal of International Law p. 462. Two important English writers support the view that constitutional limitations are completely effective under international law (Hall and Oppenheim). It is time to give democratic orientation to international law. The New Encyclopedia Britannica aptly observes:
“The limits to the right of the public authority to impose taxes are set by the power that is qualified to do so under constitutional law... The historical origins of this principle are identical with those of political liberty and representative government—the right of the citizens.”
It would be contrary to our Constitution to grant the Executive “extra-constitutional powers”. David M. Levitan has put it felicitously when he observed: “Government just was not thought to have any “hip-pocket” unaccountable powers”. Willoughby has pointed out that the foreign states are held to have a knowledge of the location of treaty making powers. [Willoughby's The Constitutional Law of the United States , p. 528, ] The effect of the elaborate discussion by Willoughby is thus stated by H.M. Seervai : “In International Law, nations are assumed to know where the treaty-making power resides, as well as the internal limitations on that power. [Seervai's Constitutional Law of India , vol- I, pp. 306-307] This rule puts all the contracting parties under public notice of the manifest constitutional limitations. It is a manifest limitation under our Constitution as much under the British Constitution that a treaty affecting taxation can not be done in exercise of power under the executive domain.
Under a democratic polity structured under constitutional limitations, the Executive would not be competent even at the international plane to incur obligations which can expose the State to the commission of defaults under international law. There is a vast jurisprudence on the Principle of International Responsibility The widely known and implemented rules are: “(1) the breach of any international obligations constitutes an illegal act or international tort, and ( 2 ) the commission of international tort involves the duty to make reparation.” But to-morrow there may emerge, or be created, international criminal jurisprudence to take punitive actions for breach of such obligations. And it may not be mere morbid phantom of surcharged brain to think some day a foreign power to protect the interests of some MNCs may exercise power, overt or covert, to pressurize our country with coercion and sanctions on the ground of the breach of treaty obligations incurred by the Executive. No democratic polity in the present globalized world would consider it proper .
(o) On Parliamentary Approval
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”. Shri Baby spoke passionately in support of the said Bill. Shri
Pranab Mukherjee, M.P. argued, and stressed the following points:
Parliamentary approval leads to complications. He referred to the Treaty of Versailles, negotiated by President Wilson, which was rejected by the U.S. Senate.
If two treaties signed between India and Nepal on harnessing water resources of Mahakali and other rivers and the other with Bangladesh on sharing of the Ganga waters would have been referred to Parliament, it would have been extremely difficult to obtain such approval or ratification in the prevailing circumstances.
GATT/WTO Agreements, signed and ratified by the Government of India, can be implemented only by Parliament by making a law in terms of the agreement as provided by Entry 14 of List I of the Seventh Schedule to the Constitution read with article 253.
The Parliament is not so constituted as to discuss the international treaties and agreements in an effective manner.
One of the reasons for the success of European Union and ASEAN as ‘economic blocs' is that the decision makers of the constituent countries, i.e. their executives, are by and large free to take decisions in matters of common interest.
Under our present system of Parliamentary Government, executive has to render continuous accountability to Parliament; and that the Parliament can always question the acts and steps taken by the Government.
Each one of the aforesaid points are absurd amounting not only to the contempt of Parliament but an insult to India's citizenry who are present in Parliament through their Representatives. Though such comments deserve to be dismissed from any serious consideration, yet as an act of deference to the speaker, and also to show how with what little awareness great issues are handled, it is worthwhile to advert to them economizing with words, but not with truth:
Under t he Treaty of Versailles, which concluded the World War I, Germany was put on the mat under the spiky boots of the rapacious victors. After vivisecting Germany, the victors stripped the great country of its honour. ‘Article 227 through 230 gave the Allies the right to try individual Germans, including the former emperor, as war criminals.' And Japan signed the Treaty of Surrender, after being trounced and pulverized after atomic bombardment, on September 2 in Tokyo Bay aboard the battleship USS Missouri concluding the World War II. Humiliation of the nation was accepted in the mood of utter frustration, and sheer helplessness. Such treaties as these are done on the wreck of constitutions. The vanquished nations owe their existence of Statehood to the mercy of the rapacious victors. It is, hence understandable, why the western jurists (including Oppenheim) ignore the Treaty of Versailles from their work on treaties. Such treaties are not treaties; they are the ruthless impositions of cruel terms on hapless nations.
Under t he Treaty of Versailles, which concluded the World War I, Germany was put on the mat under the spiky boots of the rapacious victors. After vivisecting Germany, the victors stripped the great country of its honour. ‘Article 227 through 230 gave the Allies the right to try individual Germans, including the former emperor, as war criminals.' And Japan signed the Treaty of Surrender, after being trounced and pulverized after atomic bombardment, on September 2 in Tokyo Bay aboard the battleship USS Missouri concluding the World War II. Humiliation of the nation was accepted in the mood of utter frustration, and sheer helplessness. Such treaties as these are done on the wreck of constitutions. The vanquished nations owe their existence of Statehood to the mercy of the rapacious victors. It is, hence understandable, why the western jurists (including Oppenheim) ignore the Treaty of Versailles from their work on treaties. Such treaties are not treaties; they are the ruthless impositions of cruel terms on hapless nations.
- Under t he Treaty of Versailles, which concluded the World War I, Germany was put on the mat under the spiky boots of the rapacious victors. After vivisecting Germany, the victors stripped the great country of its honour. ‘Article 227 through 230 gave the Allies the right to try individual Germans, including the former emperor, as war criminals.' And Japan signed the Treaty of Surrender, after being trounced and pulverized after atomic bombardment, on September 2 in Tokyo Bay aboard the battleship USS Missouri concluding the World War II. Humiliation of the nation was accepted in the mood of utter frustration, and sheer helplessness. Such treaties as these are done on the wreck of constitutions. The vanquished nations owe their existence of Statehood to the mercy of the rapacious victors. It is, hence understandable, why the western jurists (including Oppenheim) ignore the Treaty of Versailles from their work on treaties. Such treaties are not treaties; they are the ruthless impositions of cruel terms on hapless nations.
“Here another great constant in economic life: as between grave ultimate disaster and conserving reforms that might avoid it, the former is frequently preferred”.
How can this great nation be allowed to become, through an executive act, a foreign country's, or institution's bleating little lamb tagged behind on a lead , pathetic and supine, consoling herself with an idea, minted in a much different context, that the executive is absolute at an international plane?
That it was wrong to say that the other treaties to which he referred could not have been considered by Parliament. The real problem with the Executive Government, like the passionate misdirection of Wilson, was that it wanted them to be done somehow for purposes not all worth appreciation. History proves that Parliament and people are right more often than the Executive with its hubris for power. The criticism, hence, is totally misconceived.
No comments is worthwhile. The Executive government can implement treaty obligations within its executive field which is much wider than the legislative field. Besides, through treaty commitments the Executive can coerce Parliament to fall in line with it. Such things, in the context of the Uruguay Round Final Act, have already taken place. The haplessness with which our Parliament enacted Amendments to the Patent Act is a case of point. We lost our case before the WTO's DSB, and its Appellate Forum. Our Parliament had to bend. Virtually it ceased to be sovereign. Again, we removed the Quantitative Restrictions on agricultural products after having lost Case before the DSB and its Appellate Forum. These are the well-known instances. Many things much worse might be happening under the opaque administrative syste.
Whenever the WTO is criticized for being an undemocratic institution, its proponents stress eloquently that the Uruguay Round Final Act was accepted by the nations with the approval of their democratic legislative agencies. This is a dressed-up argument. There are good reasons to believe that our Executive imposed on the nation a treaty about which itself did not know much.
The idea that Parliament is not so constituted as to discuss the international treaties and agreements it is not correct. If Britain could deliberate in its Parliament whether it was right to declare a war, there was no reason why the text of the Uruguay Round Final Act couldn't have been placed before Parliament for an in-depth scrutiny, or why the text of the Indo-US Nuclear deal cannot be examined threadbare by our Parliament. It has already been pointed out how decision to go the Second World War was taken by Parliament, and not by the Crown. A.J.P. Taylor describes the difference between the ways the First and the Second World Wars were declared by the U.K. Besides Shri Pranab Mukherjee's argument brings to mind what the destroyers of the Weimer Constitution had said about Parliament, or what Bismarck said about the German Diet before it was all gloom.
What would facilitate the formation of an economic bloc is a pet idea of the corporate conspirators ruling the Economic Realm, which in this era of the Bretton Woods institution and the Washington Consciousness, has subjugated the Political Realm. The argument smacks of the smugness of the compradors who work for the neo-colonialists, and neo-capitalism.
If our Constitution would have trusted the Executive wholly it would not have made it an institution with granted powers, and it would not have prescribed the Fundamental Rights. In this era of Economic Globalizaton, the executive leadership in Parliament may mean nothing but the triumph of corporate oligarchy. True there was a phase when the executive led Parliament. Now the executive is itself led by the corporate imperium.
Such criticism should not have been inflicted on Parliament by one who evaluated the Treaty-Making Procedure under our constitutional frame-work with reference to the Treaty of Versailles. The nation knows what is wrong with our Parliament, and surely
some day, ways would be found/forged to set the institution right. But this does not prove the point Pranab Babu was making. It is true that things are moving from bad to worse. This is inevitable, says Erich Fromm in his The Sane Society , in the mass society which turns man into a commodity; ‘his value as a person lies in his saleability..'. This is also inevitable in capitalism as, says Tawney in his Acquisitive Society , capitalism is, at bottom, incompatible with democracy. This is also because of the compradors and the lobbyists, about whom Vance Packard wrote his triology: The Hidden Persuaders , The Status Seekers , The Waste Makers, rule the roost. This is also because the Rise of the Meritocracy, about which Michael Young has written setting his account in 2034, has led to trends towards eugenic nonsense and monstrosities, which would create the new lower classes –by definition stupid --- without leadership worth the name , and that the new IQ-rich upper classes would soon devise ways to keep themselves in power. The waxing corporate imperialism has already made our best talents exportable merchandise, and our nation would have to manage with left-overs. Even if all these happen our hope is only through Parliament. In 1915 Einstein wrote to Lorentz in Holland “that men always need some idiotic fiction in the name of which they can face one another. Once it was religion, now it is the State”. On scanning the present realities, shouldn't we say: “Once it was religion, then it was the State, now it is the Market, Pax Mercatus”. Market is ruled by corporate oligarchy with which, as indicated by the treaties being done, our government has a clear symbiotic relationship.
That sidetracking Parliament and people in a democratic country, with a structured constitutional polity, is not only a betrayal of the people's trust reposed through the Constitution, but is also a tale of evasions of reality. Our Constitution has not enacted the ideas of a Friedeich von Hayek, or a Milton Friedman in the solemn and sonorous words of the Preamble, the Fundamental Rights and the Directive Principles of State Policy.
Our nation tolerated with almost tongue-tied patience the Uruguay Round Final Act, for which even our Executive expressed some insincere remorse. But the fortitude of our people, and the melodrama of the Executive have facilitated the conclusion of a Treaty no less momentous, for good or bad, for our country: the Singapore Comprehensive Economic Cooperation Agreement (CECA) which deals with subjects as comprehensive and as important, as those dealt with in the Uruguay Round Final Act:
Trade in Goods, Rules of Origin, Customs, Mutual Recognition Agreement on Conformity Assessment, Investments, Trade in Services, Air Services, Movement of Natural Persons, E-Commerce, Intellectual Property Cooperation, Science & Technology Cooperation, Education, Media Cooperation, Dispute Settlement, any many others.
The strategy is to establish the government of the rich, by the rich, and for the rich by destroying the stature of this Republic, by diluting its constitutional commitments. China created Two Systems in one country through steps like SEZ, our Government is creating Two Indias in one country by resorting to steps which include grant of corporate zamindari exempt from the operation of various laws. Besides, the CECA establishes a clear subservience to the WTO institutions, and it goes to adopt analogous Dispute Settlement mechanism, Disputes pertaining to the DTAA can also agitated before the Council of Trade in Services by either country as per the footnote to Para 3 of Article XXII of GATS.
But our citizenry has hope from people and its highest Court of Justice. Concluding his Modern Democracies (Vol II p. 670 ) Lord Bryce 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.”
(p ) CONCLUSION
(i) Recommendations by the National Commission to Review the Working of the Constitution
The National Commission to Review the Working of the Constitution has made a number of valuable suggestions after considering our Constitutional parameters: a few of them are set forth as under:
The first thing that should be done by Parliament is to make a law on the subject of “entering into treaties and agreements with foreign countries and implementing of treaties, agreements and conventions with foreign countries” as contemplated by Entry 14 of List 1 of the seventh Schedule to the constitution. The law should regulate the ‘treaty-making power' (which expression shall, for the purpose of this discussion, include the power to enter into agreements and the implementation of treaties, agreements and conventions).
There is an urgent and real need to democratize the process of treaty making. Under our constitutional system, it is not the prerogative (if we can use that expression) of the Executive In a democracy like ours, there is no room for non-accountability.
The power of treaty-making is so important and has such far-reaching consequences to the people and to our polity that the element of accountability should be introduced into the process.
The exercise of power must be open and transparent (except where secrecy is called for in national interest) – what was called by President Wilson of USA, “open covenants openly arrived at”.
We may have already suffered enough by entrusting that power exclusively to the Executive. They do not appear to have been vigilant in safeguarding our interests, at least in some instances.
Law must provide for clear and meaningful involvement of Parliament in treaty-making. As has been done in some countries, there must be constituted a committee of Parliament to whom every treaty/agreement/convention proposed to be signed and/or proposed to be ratified shall be referred.
While placing the draft/signed treaty before such committee, a statement setting out the important features of the treaty/agreement, reasons for which such treaty/agreement is proposed to be entered into, the impact of the treaty/agreement upon our country and upon our citizens, should be clearly and fully set out. The committee would be a statutory committee clothed, of course, with all the powers of a Parliamentary Committee.
As a matter of fact, it would equally be desirable if the law made by the Parliament categories the treaties/agreements/conventions/covenants viz., (a) those that the executive can negotiate and conclude on its own and then place the same before both Houses of Parliament by way of information. In this category may be included simple bilateral treaties and agreements which do not affect the economy or the rights of the citizens; (b) those treaties etc. which the executive can negotiate and sign but shall not ratify until they are approved by the Parliament. Here again, a sub-categorisation can be attempted: Some treaties may be made subject to approval by default (laying on the table of the House for a particular period) and others which must be made subject to a positive approval by way of a resolution; (c) important, multi-lateral treaties concerning trade, services, investment, etc. (e.g. recent Uruguay round of treaties/agreements signed in 1994 at Marrakesh), where the Parliament must be involved even at the stage of negotiation. Of course, where a treaty etc. calls for secrecy, or has to be concluded urgently, a special procedure may be provided, subject to subsequent Parliamentary approval consistent with the requirements of secrecy.'
The Constitutional Review Commission made two very relevant suggestions:
‘The Parliament may consider enacting suitable legislation to control and regulate the treaty-power of the Union Government whenever appropriate and necessary after consulting the State Governments and Legislatures under article 253 “for giving effect to international agreements'.
- In order to reduce tension or friction between States and the Union and for expeditious decision-making on important issues involving States, the desirability of prior consultation by the Union Government with the inter-State Council may be considered before signing any treaty vitally affecting the interests of the States regarding matters in the State List.
(ii) Suggestions on Treaty-Making Procedure given by the People's Commission
The Peoples' Commission on Patents Laws for India [Chairman: Shri I. K. Gujral, a former Prime Minister of India]. made the following suggestions on the Government's treaty making power:
“In the light of the above, it is recommended:
Whilst the treaty making power (Article 73 read with List 1 entries 13 and 14) vests in the Union and requires legislation in order to translate the treaty into validly enforceable law (Article 253), the treaty making power cannot be seen as a law unto itself, but must operate within the discipline of the Constitution. This is all the more important because the world is being increasingly governed by treaties, which are being enforced through their own mechanisms, and by intense social, economic and political pressure.
The discipline of the Constitution requires that the Union government, which is the exclusive repository of the treaty making power, cannot, and should not, enter into treaties which undermine the Constitution.In particular, treaties would be violative of the Constitution if they affect or infringe fundamental rights or affect matters which are in the exclusive concurrent domain of the States (Lists II and III) or affect the secular and socialist dimensions of the Constitution (see Preamble and Articles 38, 39 and 51 of the Constitution amongst other articles of the Directive Principles).
Procedurally, before a treaty (especially a multilateral treaty) is signed it is imperative that it should be (i) placed for discussion before parliament with full particulars (ii) placed within the public domain for discussion (iii) circulated to the States for their opinion and discussion and (iv) not confirmed until and unless this discussion is over. This exercise necessarily needs to be repeated as further issues arise in respect of any one treaty.
Parliament needs to set up a special treaties committee which earmarks treaties for consideration and ensures that the public, federal and parliamentary process is compiled with specially listing areas for confirmatory procedures.
There is nothing in the Constitution which forbids this process being regulated by statute which should be enacted.” [ italics supplied].
(iii) This Petitioner's Suggestions on valid Treaty Making Procedure
This author makes the following suggestions for bringing about changes in our Treaty-making procedure:
Treaties which modify or override the domestic laws must be ratified only after Parliament's approval through a legislation, or on a resolution by the Lok Sabha (the way a tax treaty is done in the U.K.).
Treaties of domestic operations, affecting the areas for legislative operations under the entries in the Seventh Schedule, should be ratified only after Parliamentary approval is accorded or the bill is enacted as an Act.
Treaties affecting constitutional provisions, other than those affecting the basic features of the Constitution should be made only after obtaining an advisory opinion of the Supreme Court thereon as to its constitutional validity.
Treaties, which affect the basic features of our Constitution, should be subjected to popular referendum, after obtaining the opinion of the Supreme Court thereon, before they are ratified.
The following two comments are also worthwhile:
If the procedure of reference to the Supreme Court is to be avoided, then a treaty should be ratified after Parliamentary approval accorded in each House by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting.
Our Constitution does not prescribe recourse to referendum. But people's claim that such treaties be decided through a referendum emanates from the very fact that ‘We, the people' have adopted, enacted and given to ourselves the Constitution. Whatever protocol of referendum is chosen it must be an effective plebiscitary device to support the terms of a contemplated treaty. As Chief Justice Marshall could hold in Marbury v. Madison that the power of Judicial Review emanates from the judicial oath taken under a written constitution with entrenched rights, so should our courts and our Parliament see the legitimacy of this procedure in the fact that, when all is said, political sovereignty inheres in the people of India.
The adoption of the above-suggested procedure would help our country to withstand the pressures to which it is subjected in handling the international negotiations. If a particular draft treaty is not approved per procedure described above, the government would have no option but not to proceed further. “This would put the onus on the rest of the members of the WTO to accommodate us and modify the take-it-or-leave-it character of the Uruguay Round package.” This would make the process of treaty making transparent, and democratic. This would help our government to answer effectively the predatory international financiers that the executive government of India works under constitutional limitations, which it cannot evade. An idea must be drummed into the ears of all, that obligations under a treaty should neither be created in darkness, nor carried out under an opaque system. This would put every body under notice that ratification as such does not entitle anybody to any legitimate expectation before the treaty's incorporation into domestic law as per procedure suggested. This procedure would inhibit the executive from taking things for granted.