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."