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The nuclear agreement and Parliament

The ‘123’ agreement on civil nuclear cooperation arrived at between the governments of India and United States and the debate it has generated in the country calls for an examination of the role of Parliament in the case of such agreements. The purpose of this article is not to say either that the agreement is beneficial to India or that it is inimical to its interests. That aspect is best left to experts and others in the field.

The fact remains that this agreement, if and when operationalised, is going to impact upon, and influence in a very large measure, the economic, political, military, and foreign policies of our country apart from the energy sector. It may have more significant implications for our nation than the World Trade Organisation agreements, which we signed during the Uruguay Round of Trade Negotiations.

The issue is whether the executive, the Government of India, has the final say in concluding this agreement or whether Parliament has the final word. In other words, the question is whether under our Constitution, the executive has the exclusive say in the matter of arriving at such agreements. Our Constitution effects “distribution of legislative powers” between the Union and the States in Chapter 1 of Part XI, namely in Articles 245 to 255. According to Article 246(1), “Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule” to the Constitution. (List II enumerates the powers of State Legislatures and List III enumerates subjects upon which both the Parliament and State Legislatures can make laws.)

Entry 14 in List I reads: “Entering into treaties and agreements with foreign countries and implementing of treaties, agreements and conventions with foreign countries.” This means that Parliament can make laws with respect to this matter. It has not, however, made any such law. In such a case, the executive can act in that sphere by virtue of Article 73 (1), which reads: “subject to the provisions of the Constitution, the executive power of the Union shall extend – (a) to the matters with respect to which Parliament has power to make laws…” But this power has to be exercised by the executive, the Government of India “subject to the provisions of this Constitution.”

Clause (3) of Article 75 says that “the Council of Ministers shall be collectively responsible to the House of People.” This is the principle of accountability of the executive to the Parliament. (In the case of this 123 agreement, the Cabinet or Council of Ministers is said to have approved it.) In short, whatever the executive does in exercise of its executive power or otherwise, it is accountable to Parliament. Indeed, in a parliamentary democracy and particularly under our constitutional system, it is unthinkable that there is any sphere of activity of the executive in respect of which it is not accountable to Parliament.

Parliament is entitled to review, scrutinise, and modify or cancel any and every act of the executive. There is no such thing as a ‘prerogative power’ of the executive, immune from parliamentary scrutiny. It may be that the executive may not be bound to voluntarily place this 123 agreement before Parliament for approval. However, Parliament does have the undoubted power to examine the agreement and may, if it so chooses, approve or disapprove of it, wholly or in part. Of course, having regard to the extraordinary impact the 123 agreement has on our nation’s future, one would reasonably expect the executive to place it before Parliament, explain it, and seek its approval.

Nothing much will be gained by looking into other Constitutions or to the British practice because they are the products of their own particular provisions, practices or conventions. (I did this exercise in a lecture, the Justice K. Madhava Reddy Memorial Lecture delivered in Hyderabad on October 27, 2000. In any event, the restriction of space in this article does not permit any such comparative study.)

I must refer in this context to Article 253 of our Constitution, which empowers Parliament “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 opens with the words “notwithstanding anything in the foregoing provisions of this Chapter,” that is, Chapter I of Part XI. In the context in which it occurs, it means the following. Notwithstanding the distribution of legislative powers between the Union and the States, Parliament is competent, if it is necessary to implement an international treaty or agreement to make a law for that purpose, to do so even though by doing so it may be making a law in respect of a subject within the exclusive competence of State Legislatures.

It is not as if the question of making a law regulating the power of the executive in the matter of treaty-making has not come up before Parliament. In February 1992, 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 to the effect that every international treaty/agreement “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…” (A similar notice given by Chitta Basu in the Lok Sabha on July 17, 1994 was never taken up for discussion and lapsed with the dissolution of that Lok Sabha.)

Mr. Baby’s notice came up for discussion in the Rajya Sabha only in March 1997. He pressed for his amendment in the particular context of the manner in which Uruguay Round of GATT Agreements (leading to constitution of the World Trade Organisation) were signed by the Government of India. Pranab Mukherjee, MP, however, opposed the move citing, inter alia the practical difficulty in subjecting all such agreements to Parliament’s scrutiny — because of the way Parliament has been functioning in recent times where even important pieces of legislation are not properly discussed and where even ‘votes on account’ and budget demands involving thousands of crores of rupees are being passed without discussion. Mr. Mukherjee also pointed out the United States experience where important treaties (like the Treaty of Versailles constituting League of Nations) were rejected by the Senate. He also referred to the safeguard in the case of WTO agreements, namely, unless Parliament enacts legislation to give effect to the agreements, they would be of no effect. In practice, however, this ‘safeguard’ has turned out to be illusory inasmuch as the Government of India always tells Parliament that these are binding commitments undertaken by India and that Parliament ought to honour them.

Of course, nothing came of Mr. Baby’s effort.

This is not the place to go into the kind of mechanism that has to be evolved to provide for parliamentary oversight or check upon the executive’s power to enter into international treaties and agreements. That would call for a more detailed study, which has been done elsewhere. (Reference may be made in this behalf to the Consultation Paper prepared by the National Commission to Review the Working of the Constitution – Report of the Commission – volume II, Book II at pages 869 to 886.)

It is sufficient to say for the present that the Government of India ought to place the 123 agreement with the United States on nuclear cooperation before both the Houses of Parliament and it would be for Parliament to take such action in that behalf

(The writer is a former Judge of the Supreme Court of India and former Chairman of the Law Commission of India.)

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