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It is time Parliament assumes its powers

By: K Parthasarathi
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The entire country is agog with the looming political crisis that the nuclear deal has spawned with the Left threatening of serious consequences if the deal were to be operationalised. The government, though in a fix, seems in no mood to yield to what it perceives as intimidation though some measures to mollify it are being considered. In the melee we have forgotten the more important issue that on all crucial matters affecting the country where international agreements and treaties, are entered into by the executive headed by the Prime minister and his cabinet, the Parliament is sidelined.

What needs to be decided urgently today is not only whether the nuclear deal is to be operationalised or not but also whether Parliament the supreme body elected by the people to whom the government of the day is accountable has a say on the acceptability of agreements before they are entered into. This article does not go into the merits of nuclear deal or the constraints it may impose on India’s independent foreign policy, its defense preparedness or in its nuclear program.

The vital issue is what kind of role our Parliament plays in overseeing the international agreements and treaties that the government enters into without any system of prior approval. Since the advent of globalization the number of such international agreements that the government enters into has grown both in number and in their far reaching implications. Many public matters are settled by means of international treaties. The international bodies have also grown strong with clout to influence the domestic policies of the weaker countries. The trade agreements under the aegis of WTO that affect the livelihood of major section of the people, the agreement on global warming, the agreements with foreign powers in ceding large areas of land, the bilateral agreements with other nations, the defense treaties and joint exercises under such agreements fall at present under the exclusive domain of executive with Parliament having little say.

There is no Constitutional obligation in our country to get the approval of the Parliament on international agreements and treaties unlike in many the countries. There is also no requirement to ratify such agreements or legislate upon them by the Parliament. The unwillingness to discuss the deal initially in the Parliament and subsequently the refusal to put it to vote indicates the mindset of the executive.

Ever since hung legislatures have become a regular feature with coalition governments of an assortment of disparate parties, with none of them having sizable numbers, joining together to grab the power, the influence of Parliament as an oversight body over the executive has dwindled. Issues have taken a back stage and the numbers to keep the governments alive alone matter. The executive has taken advantage of the disinterest of this highly politicized body and has been exercising its powers without any obligation to consult the Parliament. This exercise by executive of such unbridled power on matters of consequence were also not taken note of or hardly discussed in the highest legislative body.

Most of the time is lost in mutual bickering, stalling the proceedings, walkouts and endless adjournments. It had abdicated much of its powers to the executive and stamping its approval on all things put to it. The mechanisms of oversight thro committees and motions on the floor were not utilized fully to put the government on the alert. The house had become highly politicized and issues are not allowed to be discussed purposively. Demands for grants and bills were passed without any meaningful discussion.

Such coalition governments by virtue of its nature are shaky and the leading partner in the alliance is a minority party without adequate votes to form the government. Coalition government is merely assemblage of parties contrived to win the approval of the President to form the government. It has neither the moral authority of a government formed by a single party with absolute majority nor does it reflect the opinion of the vast majority of the people.. Despite these the governments decide on issues of far reaching consequence covering economic, political, military, and foreign policies that would bind the country to the agreements entered into by the government of the day.

While rejecting the demand by the opposition for a vote under Rule 184 on the nuclear deal the speaker ruled that Parliament had “no competence” to decide on operationalisation of any international agreement or treaty. He said that in the absence of appropriate laws made by Parliament, the right of the Central Government to enter into treaties and agreements with foreign countries in its sovereign power, is unrestricted and becomes effective without any intervention by Parliament. “

It is also well-established that there is no requirement to obtain ratification from Parliament of any treaty or agreement for its operation or enforcement. Thus, Parliament can only discuss any treaty or agreement entered into by the Government, without affecting its finality or enforceability.”

Compare this with the provision in US. The Constitution of the United States stipulates that the President has the authority to engage in treaties only in consultation with the Senate and its consent, on the basis of a resolution adopted by two thirds of the Members of the Senate present.46 The consent of the Senate is required only at the end of the process, before the treaty is ratified, and if the Senate objects, it is entitled to condition its approval upon certain reservations.

The point at issue is whether the executive, the Government of India, has the exclusive say in the matter of arriving at such agreements or the Parliament to which the PM along with the cabinet is accountable. While Parliament is vested with the exclusive power to enact laws under Article 246(1)on any of the matters enumerated in List I in the Seventh Schedule” to the Constitution which includes as per entry 14 entering into and implementing of treaties and agreements with foreign countries , it has not enacted any law so far. Under Article 73(1) provides that the executive can act subject to the provisions of the Constitution on the matters with respect to which Parliament has power to make laws. Since the executive thro the PM and cabinet is accountable to Parliament, any power that executive wing enjoys is subject to the oversight of the Parliament.

As a former judge of Supreme Court put it differently it is unthinkable in a democracy such as ours executive having powers beyond the pale of review and approval by Parliament. He opined that the government of India ought to place the agreement with the US on nuclear cooperation before both the Houses of Parliament for the Parliament to take such action in that behalf.

The argument that the executive power of the Union set out in Article 273 with reference to any treaty or agreement is co-extensive and coincidental with the power of Parliament itself was not accepted by Supreme Court in an earlier case in 1959-60 and legislation was enacted by Parliament to implement a treaty entered into with another country.

It is time Parliament becomes aware of its powers and exercises them by making all international agreements come within its purview by enacting a law and deciding upon the agreements on their merits. The executive would be required to place before the Parliament a detailed analysis that would spell out the defense, economic, environmental and social ramifications of entering into such an agreement, the undertakings that it imposes the manner in which it is to be implemented in the country, the costs involved, and consultations that took place with different countries.

This precisely what an elected Parliament in a democracy is expected to do and not surrender its powers to temporary and not infrequently weak governments of the day that are subject to pulls and pressure of small allies in the coalition.

K Parthasarathi

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