Even Nehru with an absolute majority in the Constituent Assembly deemed it fit to seek the approval of the house
A 15-member UPA-Left committee to go into the concerns raised by the government’s outside allies on the Indo-US civil nuclear deal was announced on Tuesday by External Affairs Minister Pranab Mukherjee, who will be its convener. The committee will have six members each from Congress and Left parties and one each from UPA constituents RJD, DMK and the NCP. Mukherjee’s senior Cabinet colleagues A K Antony, P Chidambaram, Kapil Sibal, Saifuddin Soz, Prithviraj Chavan, Lalu Prasad of RJD, T R Baalu of DMK and Sharad Pawar will be the other members representing the government. Left parties will be represented by Prakash Karat, Sitaram Yechury (CPM), A B Bardhan and D Raja (CPI), Debabrata Biswas (Forward Bloc) and T J Chandrachoodan of RSP.
Ahead of the announcement of the composition of the committee Nitin over at the Acorn has raised questions about the constitutionality of such a committee and the precedent it would set. Offstumped digs into the Constituent Assembly debates and the recommendations of the review commission on the Constitution set up by the Vajpayee NDA Government on this subject.
But first before we get into the constitutionality and risk to National Security it is important to understand what the terms of reference of the committee are. For a Committee that has pretty much held Executive Decision Making at the highest levels to ransom, its terms of reference are vague and open ended.
The committee will look into certain aspects of the bilateral agreement; the implications of the Hyde Act on the 123 agreement and self-reliance in the nuclear sector ; the implications of the nuclear agreement on foreign policy and security cooperation
While the implications of Hyde Act on the 123 Agreement is a matter of public record it is the second aspect of what the proposed committee is expected to do which is concerning – “implications on foreign policy and security cooperation”.
So what exactly does the Constitution have to say on Treaty Making. A good pointer can be found in the recommendations of the National Commission to Review the working of the Constitution setup by the Vajpayee Government. The Commission addressed treaty making in Chapter 8 on Union State Relationships. Here is what the Commission had to say on the current Constitutional position
Article 246 (1) read with Entry 14 of List I- Union List of the Seventh Schedule empowers Parliament to make laws with respect to “entering into treaties and agreements with foreign countries and implementing of treaties, agreements and conventions with foreign countries”. As per the provisions contained in article 253, Parliament has, notwithstanding anything contained in article 245 to 252, power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body. This article (article 253), therefore, overrides the distribution of legislative powers provided for by article 246 read with Lists in the Seventh Schedule to the Constitution.
The Commission clearly recognizes the supremacy of Parliament on Treaty Making. Now to the Constituent Assembly Debates.
The Constituent Assembly debated Treaty Making on several occasions. On 25th Aug 1947 there were some interesting exchanges on Treaty Making powers in the Constitutions of different countries. The next major point of debate was then Prime Minister Jawaharlal Nehru’s Declaration in London on April 27 1949 on the issue of continued membership of India in the Commonwealth of Nations. The debate then was not unlike the debate now with strong overtones of nationalism, national interest, sovereignty etc. On 16 May 1949 Nehru moved a motion in the Constituent Assembly seeking ratification by the Constituent Assembly of his declaration in London by making these remarks that may have a lesson or two for Messrs Karat and Yechury
I wanted the world to see that India does not lack faith in herself, and that India is prepared to co-operate even with those with whom she had been fighting in the past; provided the basis of co-operation today is honorable that it is a free basis, a basis which would lead to the good not only of ourselves, but of the world also
Then Nehru goes on to seek the approval of the House saying
Obviously a declaration of this type, or the Resolution that I have placed before the House is not capable of amendment. It is either accepted or rejected. I am surprised to see that some honorable Members have sent notices of amendments. Any treaty with any foreign power can be accepted or rejected
During the debate a pointed question is asked which is of relevance in present times
May I know whether the ratification of this Declaration is within the province of his Horse as a constitution-making body?
The answer was in the affirmative from the President. After two days of debate the declaration is put to vote. Nehru in his reply outlines three simple tests on the question of whether the Treaty is in National Interest
does not come in the way of India going forward to her natural destination of a Sovereign Independent Republic, does not hinder India in making rapid progress in the other domains, whether in the world, as it is today, it helps in the promotion of peace and the avoidance of war
Nehru also goes on to acknowledge the power of the House to
It is open to this House or Parliament at any time to break this link, if they so choose, not that I want that link broken. But I am merely pointing out that we have not bound the future down in the slightest. The future is as free as air and this country can go any way it chooses. If it finds this way is a good way, it will stick to it; if not, it will go some other way and we have not bound it down
Nehru closes his speech with these words
If we are a big nation in size, that will not bring business to us unless we are big in mind, big in heart, big in understanding and big in action also. You may lose perhaps a little here or there with your bargainers and hagglers in the market place. If you act in a big way, the response to you is very big in the world and their reaction is also big. Because, good always brings good and draws good from others and a big action which shows generosity of spirit brings generosity from the other side
The Constituent Assembly debate on the question of joining the Commonwealth has many a le
sson for the present day politicians on how to view National Interest and how to engage with world. More specifically there is a lesson for Manmohan Singh and Sonia Gandhi that they should not sidestep parliament and engage with unelected backroom boys via extra constitutional mechanisms on key issues of National Interest.
One may disagree with the BJP’s position on the Indo-US Nuclear Deal but its demand for an up or down vote in Parliament is well justified. Even Nehru with an absolute majority in the Constituent Assembly deemed it fit to seek the approval of the house and acknowledged its power to change the course if the future so demanded.
Offstumped Bottomline: The UPA Left Committee is a fraud on the Constitution and a dangerous precedent. Manmohan Singh must heed Jawaharlal Nehru’s example and seek the approval of the house rather than persist with this subterfuge.
Filed under: Uncategorized
we are being provided answers to the question of who is sidestepping parliament everyday on loksabha tv.
Samurai – agree parliamentary behavior has plumbed the depths but that doesnt absolve the government of the day from trying to avoid a vote or a JPC.
See my latest post – http://lex.nationalinterest.in/2007/09/05/upa-left-family-business-worth-a-challenge-in-the-sc/
Yossarin, I just don’t see it. First of all the deal needs no parliament approval. Even then Manmohan is looking for parliament approval – which because of Advani’s stand will easy get. But Manmohan won’t be the PM anymore. The issue is not constitutional at all, but purely political. Demands of commies are not constitutional in nature.
Chandra – The point is simple. If the treaty was a slam dunk politically the executive privilege as explained Ninad in his post should suffice. But the treaty here has become highly contentious with no political consensus. It is but appropriate for the Government, especially a minority one at that to seek that political mandate in the form of parliamentary approval rather than engage in backroom deal-making with unelected individuals. Such back-room dealing gives the impression that the Government has outsourced its executive privilege to a mechanism that is neither sanctioned by the government, nor is constitutional or accountable to anybody. That is the core issue. Parliamentary approval may not be mandatory but parliamentary approval is not prohibited. In fact Parliament having the full constitutional authority to make any laws to regulate treaty making any which way is the right forum to build that political consensus and obtain that mandate. Hence the mechanism ought to be parliamentary and not otherwise.
I agree that ideally the Indo-US Nuclear deal, if brought to the parliament for approval by the house, would bring greater credibility to the exercise.
At an informal level, the Govt has tried to keep the major political parties in the loop during the process. No party really raised their “serious doubts” at any point of time during this process. Once the deal was sealed – both BJP and the Left saw an opportunity to score political “brownie points” by opposing the deal. Their primary aim has been to embarrass the Govt and get political milage out of it. BJP has displayed very inconsistent stand on this issue – which was out in Public with Advani’s U-turn on the matter (which was more dictated by political reasons than national interest) !
“The issue is not constitutional at all, but purely political” as correctly pointed out by Chandra.
It would be a political “hara-kiri” for the Govt to bring this deal to the Parliament to be passed by the house – in vitiated political atmosphere that exits today ! Each party in the opposition has amply displayed their “wicked intent” to use this issue as tool to bring down the Govt – completely sidestepping “national interests”.
The Nehru era was different ! That precedence is good to remind but is not practical in the current environment. Beside, there are several other precedences where international treaties discussed by the Govt (including the Indo-Pak deal, Indo-China deal during the NDA regime) were never brought to the Parliament to be passed by the house. In fact, the BJP Govt was ready to cede Indian territory to China in exchange for settlement of boundary disputes. The entire deal was shrouded in secrecy – and was not even informally discussed with the main opposition !
The UPA-Left Committee is more of a internal UPA mechanism rather than a Constitutional framework. It is actually a farce in the real sense – where both parties have a opportunity to get a face-saving of some sort – after the the hard positions they have taken on the issue.
I think the reasonable course for the NDA would have been to participate in the debate in the rajya sabha today and later in the lok sabha and then if not satisfied ask for a JPC,at that point if they really felt the issue was serious they could go for a no-confidence vote.