Issue 47 Vol II, September 15, 2007

L A W  &  J U S T I C E

Sovereignty of the Indian Parliament and Treaty Obligations
Joginder Singh Toor

THE United Progressive Alliance government is facing myriad serious questions; touching the sovereignty of the India, the constitutionality of its power to enter into a treaty and implement it without the express approval of the Parliament. Take the current hotly debated issue of a nuclear agreement with the United States; India has no specific law about treaties and their specific prior approval from the parliament. The U.S., its counterpart, the country with whom the treaty is to be signed, has a specific internal law. The approval from the American Congress is obligatory.

It has generated a huge controversy that even threatens the president Congress lead coalition government at the center. In fact, the controversy is writ-large on every lip elite and concerned. An arrangement between two hostile political parties, with a view to ousting a third party from power, started in 1995 culminating in restoration of power to the Congress, and ousting the NDA, a goal cherished for decades together is at the verge of collapse on issues larger in nature, content and impact on the dignity of the people of India, the sovereignty of the country and its independent place in the foreign affairs of the world.

The U.S national laws include the original Atomic Energy Act of 1954 under section 123 of which Act the agreement with India has been signed, besides there being the Non-Proliferation Treaty Act and The Hyde Act of December, 2006. Section 123 of the 1954 U.S. Atomic Energy Act provides that should any nuclear device be detonated for any reason whatsoever, not only shall all nuclear commerce be halted with the country, the U.S. shall have the right to demand the return of any nuclear material and equipment transferred pursuant to the agreement for cooperation as well as any subject nuclear material produced from the use thereof if the cooperating party detonate a nuclear explosive device for any reason whatsoever (including for peaceful purposes).

The Hyde Act provides in section 106 explicitly that “a determination and any waiver under section 104 shall cease to be effective if the President (U.S) determines that India has detonated a nuclear explosive device after the date of the enactment. The agreement signed by India with U.S. says “each party shall implement this agreement in accordance with its respective applicable treaty, national laws, regulations and license requirements.” Subjecting the agreement for nuclear cooperation u/s 123 of 1954 Act, to the national laws of the U.S., tantamount to subjecting the sovereignty of India to a foreign country. India has no specific law except the Atomic Energy Act 1962 which does but deal with situations like the one  emerging out of the 123 Agreement.

Besides many other questions as to the suspension of the agreement the information to be supplied with regard to the uranium mined each year, the quantity used and the quantity in stock by a report to the President of U.S., to be placed before the House of Commons in the U.S., and the provision for inspection by U.S. Experts (substituted for Inspectors), the India’s obligation to provide them required stay and cooperation for collecting information with regard to the use of nuclear fuel supplied under the agreement, is adding insult to injury.

Unlike China, who also entered into agreement with U.S. for supply of nuclear fuel, by way of an agreement ‘between two nuclear nations’ excluding the applicability of the internal laws of the U.S. to the agreement and in the event of any difficulty, the provisions of the agreement to prevail the U.S. internal laws, and the dispute to be decided by way of arbitration mutually decided, India has not asserted the inclusion of any of the provisions of the sort in the 123 agreement and has rather bent upon its knees and offered its thumb to be impressed on any document sought to be signed under section 123 of 1954 Act.

The legal luminaries of India including justice V.R.Krishna Iyer and Justice P.B.Sawant former Judges of the Supreme Court of India and Justice H.Suresh former Judge of the Bombay High Court in a joint statement issued on the powers of the executive with reference to the Indo U.S. nuclear deal have clearly stated that the provisions of the Constitution particularly contained in Article 73 and 253 and entries 6,13 & 14 in the Union List of the Constitution define the executive powers of the Union to extend to the matters with respect to which the parliament has power to make laws, to the exercise of such rights, authority and jurisdiction as are exercisable by the Govt. of India by virtue of any treaty or agreement. The matters on which the Parliament has no power to make laws are also matters on which the Union Government cannot exercise its executive power. According to them the executive cannot act without the authority of law and it has no power independent of law made by Parliament. Unless the Parliament of India makes a law on the subject as have been made by the counterpart, the U.S. Parliament, the executive i.e. Govt. of India has no power to enter into any treaty with other countries. The decisions made at international conferences have to be translated into laws before they are acted upon by the executive. As such the Indo U.S. nuclear deal cannot be implemented by the Union Government unless it is translated into a law enacted by the Parliament and if the Government proceeds to do so without translating it into law it would be sheer arbitrariness of the Government.

Even the U.S. administration will have to approach the U.S. Congress to get their present laws including the Hyde Act, 2006 amended but the Govt. of India is rushing through the deal without approval of the Parliament, without enacting the law on the subject, and without even waiting for the U.S. to have the Hyde Act, 2006 amended so as to correspond to the 123 agreement and ensure uninterrupted life time supply of nuclear fuel.

The question before the Government, the Parliament, the nation and the international community is of vital importance demanding thorough discussion, debate and analysis.

jogindersingh_toor@yahoo.com

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