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PUCL Bulletin, Novembsr 2006

Treaty making power of a government

-- By Rajindar Sachar

Recently question has been raised the question whether constitution should not be amended to provide that the Parliament should have a role in pre-ratification in the treaty making power of the Central Govt. Now, Entry-14 of the Seventh Schedule of the Constitution empowers the Parliament of entering treaties with foreign powers. But Article 73 of the Constitution provides that the executive power of the Central Govt. shall extend to the matters with regard to which Parliament has power to make laws. As per present law at the stage of entering into treaty with foreign power, like the recent Indo-US Nuclear Agreement, executive is under no obligation to have parliament’s approval.

The serious consequences are visible to everyone – parliamentarians learn from rumours and newspaper reports as to what are the exact terms. As against this, the embarrassing situation being reported in the press daily how publicly the Senate of USA is discussing the agreement – and many of them not in complimentary terms.

It is for this reason that some people have objected that the practice where under the treaties are entered into by the Executive without significant Parliamentary or public involvement is undemocratic because it is ultimately the people whose rights and entitlements are going to be affected.

But more delicate and intrusive question concerns Article 253 which empowers Parliament to make any law for India for implementing any treaty, even on entry/topic reserved exclusively for State legislature under the Constitution. This raises an important question of federalism which is a basic feature of our Constitution. Fears are expressed that under cover of treaty-making power there will be serious inroads into the autonomy of the States. It is evident that in order to effectuate treaties legislation is a necessary compulsion. So far as the Central subjects or Concurrent subjects are concerned, the Parliament could pass a law and no problem would arise. But many of the treaties like WTO especially dealing with agriculture require legislation which can only be dealt with by the states as it is in the State subject. Thus, whether how much agricultural products should be allowed to come in the country (considering the present critical situation which is leading farmers all over the country to commit suicide) is a life and death question to the states.

Of course, it is not suggested that the Central Govt. is an outsider but considering our federal set up the concern of the states would be more direct and urgent as also because the interests of different political parties and governments may not coincide. It can, therefore, happen that in such cases, the Centre may exercise its power under Article 253 to pass legislation contrary to the wishes of the state – a critical impasse – no one will dispute.

It needs to be remembered that though Vienna Convention on the law of treaties which is sometimes mentioned in favour of the parliament’s sole power to make law itself provides that this power is subject to Article 46 which allows states to have a defence that it cannot carry out the international treaties because it violates domestic law.

There is a general concern not only in India but in all developing countries that the executive should not have any untrammelled powers to enter into any treaty without legislative approval and later on to brow-beat the parliament into giving effect to a legislation on the ground that failure to do so would be embarrassing to the country. That is why it has been suggested in some countries like Australia that executive would not ratify a treaty or accept an obligation under the treaty until the appropriate domestic legislation has been passed which would necessarily mean that the ratification treaty has been in principle debated and approved by the Parliament. Furthermore important that the states will be consulted before entering into treaties and all information will be shared between the various Chief Ministers of the States.

In Canada, though ratification of the treaty by the Govt. is left to the Parliament but the constitution also requires that any legislation required to implement a treaty can be enacted only by the provinces.

In a majority of 24 OECD countries, Parliamentary approval is required at least in case of certain categories of treaties, excluding of course the self-executing treaties.

The grave harm done by exclusive power to the Govt. to enter into treaty making without prior consultation with Parliament is apparent from the fact that though the Standing Committee of the Parliament attached to the Commerce Ministry of 40 members had opposed the draft agreement on TRIPS and had voted against product patent the same was not debated in the Parliament, rather the Govt. signed the TRIPS agreement in 1994 in the same form as the draft agreement without approaching the Parliamentary Committee or the Parliament which had taken a different view. We are now reaping the strain of high cost of medicine and the farmers’ suicides.

This unfettered and secretive way of Executive to enter into treaties without not only the Parliament but especially the states (even when the danger to states’ rights was glaring) was strongly commented upon by a Peoples’ Commission on GATT presided over by Justice Krishna Iyer and other Supreme Court Judges as far back as in 1996 wherein that it recommended that “it is a matter of constitutional necessity that legislation be enacted so that all treaties go through ratification of the agreement by legislature. Applying the constitutional text devised by the Supreme Court, the direct and inevitable effect of the Treaty would be to infringe the right to medicine, food and livelihood. It even suggested on the basis of a detailed examination, that the final text resulting in the Uruguay Round is ultra vires the Treaty Making power.”

Justice Venkatchalliah Committee Report of the National Commission to review the working of the Constitution (2002) submitted to Central Govt. had recognized the delicacy of the situation and recommended “that for reducing 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 Govt. 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.

In spite of all this weightly opinion the old fossilized bureaucratic method of govt. functioning still continues at its snails pace, cocking its finger at all modernisation schemes of computers and satellites.

Why with this explosive situation is Parliament avoiding to pass the necessary amendments and legislations. Has the monster of globalization so totally unnerved our legislatures.

People's Union for Civil Liberties, 81 Sahayoga Apartmrnts, Mayur Vihar I, Delhi 110091, India. Phone (91) 11 2275 0014