Thursday, September 13, 2007

The power of the Executive to enter into agreements and treaties: Bucking the conventional wisdom?

Today's Hindu features a column which reproduces a press statement issued by three retired judges (Justices Krishna Iyer, PB Sawant and H. Suresh). This statement provides a stimulating analysis of the power of the Indian executive to enter into agreements and treaties. Though framed against the context of the current debate over the 123 agreement, their argument has important ramifications for the power of the executive to engage in foreign affairs and diplomacy in general. Those who witnessed the debate over the Dunkel Draft in the 90s will recall that Justice Krishna Iyer had made similar arguments at that time. What is interesting about this stance is that it runs contrary to the position adopted by noted scholars of international law such as Professor V.S. Mani and Dr. P.C. Rao. This conventional account suggests that, following the British practice, the Executive has wide powers to engage in matters relating to foreign affairs.

I hope to analyse this issue in greater detail in the near future. For now, I draw attention to the arguments set out in the piece so that others who have had a chance to study the broader issue can assess and react to the arguments. The link to the full piece is included in the first line of this post, while the relevant constitutional analysis is extracted below:

"1. The Executive has no power to enter into any agreement, either with a foreign government or a foreign organisation, which is binding on the nation. The agreement will be binding only when it is ratified by Parliament. There is no provision in the Constitution which gives such authority to the Executive. We have a written Constitution and, therefore, we must have a written provision in the Constitution which gives such authority to the Executive.

2. Articles 73 and 253 and Entries 6, 13 & 14 in the Union List of the Constitution refer to the powers of the Executive. Article 73, among other things, states that, “----the executive power of the Union shall extend (a) to the matters with respect to which Parliament has powers to make laws, and (b) to the exercise of such rights, authority and jurisdiction as are exercisable by the Government of India by virtue of any treaty or agreement.” This means that the matters on which Parliament has no powers to make laws are also matters on which the Union Government cannot exercise its executive power. It also means, conversely, that the Union Government cannot exercise its executive powers beyond the legislative powers of the Union. Both these propositions have an underlying assumption that, before the Union Government exercises its executive power, there is a law enacted by Parliament on the subject concerned. Some argue that the provisions of Article 73(1)(a) give power to the Executive to act on subjects within the jurisdiction of Parliament, even if Parliament does not make a law on those subjects. This is both a distortion and a perversion of the said provision and a subversion of Parliament’s supreme control over the Executive. If this interpretation is accepted then the Union Executive can act on all subjects on which Parliament has to make law, without there being any law made by Parliament. You can thus do away with Parliament and Parliament’s duties to make laws. We will then have a lawless government. Democracy presumes there should be a rule of law and all Executive actions will be supported by law and that there shall be no arbitrary action by any authority, including the Union Executive. It may also be necessary in that connection to remember that it is for this very reason that when Parliament is not in session and, therefore, unable to enact a law, the power is given to the President to issue an ordinance (which is a law), so that the Executive may act according to its provisions. These ordinances are to be placed before Parliament within six weeks of its reassembly, and if Parliament approves they become law. The Constitution-makers were, therefore, clear in their mind that the Executive cannot act without the authority of law and it has no power independent of law made by Parliament.

3. Article 253, which is relevant in the context of the present Indo-U.S. nuclear deal, is very specific on the subject. It says, “Notwithstanding anything in the foregoing provisions of this chapter, Parliament has power to make any law ----- for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body.”

This Article gives specifically the power to Parliament to make laws on treaties, etc., with other governments or even on decisions made in international conferences, etc. This makes it clear that even the treaties, etc., entered into with other countries or decisions made at international conferences have to be translated into laws and read with the provisions already discussed above, before they are acted upon by the Executive.

4. The Union List Entry 6 makes “Atomic energy and mineral resources necessary for its production” a subject matter of legislation of Parliament. Similarly, Entry 13 which reads, “--- participation in international conferences, associations and other bodies and implementing of decisions made there at” and Entry 14 which reads, “entering into treaties and agreements with foreign countries and implementing of treaties, agreements and conventions with foreign countries” make them also subject matters of legislation by Parliament.

5. All these provisions make it abundantly clear that the present Indo-U.S. nuclear deal cannot be implemented by the Union Government unless it is translated into a law enacted by Parliament. Any action, therefore, taken by the Union Government to implement the said deal without the authority of Parliament is unconstitutional, because it amounts to the usurpation of power of Parliament by the Union Executive. It is also undemocratic because the Union Executive will be acting arbitrarily, trampling both the rule of law and also the wishes of the people of India. It will be nothing short of an arbitrary rule by the Executive, leading to an unconstitutional government in the country, because what is arbitrary is also unconstitutional."

7 comments:

Dilip said...

Dear Arun,
Interesting post. I read this article earlier today and have been wondering about it. In the very first sentence, they state “The executive has no power to enter into any agreement…that is binding on the nation.” I am with them so far since parliament has given no sanction to bind the country to anything. Even if it were to do so, that approval could always be rescinded later on, so in a sense, a system where an agreement, as a one-time thing, that binds the country for good does not exist. The way I make sense of how the system works and correct me if I am wrong, is that in signing the agreement, the executive is legally entering into an understanding that is binding, as a matter of honor, only upon itself, not on parliament or the country at large. So as a consequence of it, the executive may commit itself to pursue certain policies (which already enjoy parliamentary approval or lie within its own discretion and need no further endorsement) or to initiate legal changes/enactments but any such commitment is of no binding value on parliament or the country at large which are, technically at least, free to repudiate it or as is more likely in practice, temper it in ways that do not sharply contradict it. Of course, the likelihood of adverse consequences, the fact that we have a parliamentary system with the government of the day enjoying majority support in the house as well as the practice of continuity that has informed governmental actions in our country (barring a few ‘Mayavathi-esque’ cases) makes it improbable that anything radical will be allowed to happen. Here, the word ‘implementation’ that they use is a broad one and I am unclear as to the width of its import that they imply - insofar as policy actions are being planned in pursuit of the objectives of the treaty such as the policy goal of negotiating with foreign states for the widely talked about NSG waiver, it is well within the executive realm and I think, the government is free to pursue it but if changes to the Atomic Energy Act or any other domestic law are required (I apologize for not being well-versed with all the nitty-gritty to know if this is actually the case), the Act(s) itself would have to be amended (which is probably what would have to be done in this case given that the 123 agreement does not have such detailed specifics) or in a different case if the agreement itself were to include all the specific technical details or statements of principles themselves would suffice in the particular context, those provisions could be brought into effect without writing any new law but simply by ratifying it. In either case, parliamentary endorsement would be necessary to give the provisions of the agreement or those introduced in pursuit of those provisions the force of law domestically. If they mean implementation in any form, even in terms of policy, they would have to explain how signing a treaty can take away the normal functions of executive governance, which I therefore doubt is what they mean. Read in this light, contrary to my first impression as well, I see their view as not being all that different from what others have stated.

V.Venkatesan said...

Dear Arun,
I am eager to know your tentative views on this issue. Also, can you briefly sum up Prof.Mani's and Dr.P.C.Rao's views on the issue? Is there any link/reference to their writings which you would suggest?

Anonymous said...

see also the article by Justice Jeevan Reddy in The Hindu
published last month

Anonymous said...

It would be in the fitness of the discussion to analyse the recent Novartis ruling from this angle.

tarunabh said...

I wrote this piece sometime back which may be relevant to the topic. While it does not discuss the constitutionality of executive ratifications, it does call for a South African style law requiring democratic accountability for international law making.

paramoo said...

Dear Arun,
I have been quite interested in the issue that has been raised by Justice Krishna Iyer & co. and here are my thoughts on the issue.

I think the crux of the issue lies in the interpretation of Article 73 and Entry 14 of List I.Executive power , according to Article 73 is expressly subject to the provisions of the Constitution. Entry 14 gives two important areas on which the Parliament can make laws- Entering into treaties, agreements etc and Implementation thereof. The accent is on "Entering into", that is, apart from giving the power to implement treaties etc thorough domestic legislations, the Parliament can also prescribe how to enter into such treaties, agreements etc. Entering into agreements ought to be differentiated from their implementation. Therefore it may very well prescribe the procedure for negotiations, the extent of Parliamentary involvement, including policy decisions through JPCs etc. Perhaps then, the Parliament will be able to exercise options like the "pause button", "stop button" to borrow the phrases the Left has been employing these days. Though such Parliamentary interference would seem impractical and irrational in the conduct of foreign relations, I think we ought to think on these lines in order to maintain the essence of a parliamentary system under a written constitution. That no executive action must be taken without legislative backing must be considered an inherent feature of rule of law in the Indian constitutional framework.

But in 57 years there has been no such legislative effort. In the absence of such effort, would it then be possible to argue that until Parliament makes a law in this regard, no treaties/agreements could be entered by the Executive. It might seem far fetched, as we cannot ignore conventions (Pranab Mukherjee claimed that never in 57 years has a treaty been put to vote or a JPC instituted to discuss one, this has been the UPAs constant assertion). It is often argued that such nuanced interpretation of the constitutional text cannot completely ignore conventions (recall the debates surrounding the Presidents powers before Article 74 was amended). But can such blind adherence to constitutional conventions overlook the fact that we were governed for almost 40 years by a single party government which enjoyed comfortable majority in the Parliament throughout its tenure. The emergence of multi party governments must necessarily prompt us to rethink such conventions.

Parameshwar

Umakanth V said...

Dear Arun – thanks for that interesting post.

There is an article in today’s (September 19, 2007) Hindu Business Line where the author TCA Ramanujam takes a view that is different from that adopted by the 3 justices. He argues: “In India, the position is similar to that in the UK, which goes by the Law of Conventions. We have a written Constitution. Treaty-making is a Legislative subject in the Union List. It is not always the case that a treaty negotiated and entered upon by the Executive will not be binding unless it is ratified by Parliament. From the mere fact that the Legislative powers are divided between the Union and the States by Legislative Lists, for federal purposes, it does not necessarily follow that in order to enable the Executive to function, there must be a law already in existence and that the powers of the Executive are limited merely to the carrying out of these laws.”

A plain reading of the relevant articles of the Constitution (especially Art. 73) makes me agree with the view that the executive does have the power on all matters that are part of the Union List (including treaty making under Entry 14). That power is not limited to matters where Parliament has already laid down a law, or where executive action is required to be ratified by Parliament. This is also buttressed by past practice and precedent.

Is there any guidance in terms of case law or legislative debates in Parliament on this topic?