The Hindu Business Line : Treaties with foreign countries

The task of negotiating treaties and agreements with other countries belongs to the Executive. While not all treaties require ratification by Parliament, in certain situations it will be necessary to make the treaty provisions binding on the citizens and the state, says T. C. A. RAMANUJAM.

— V.V. Krishnan

Only in a few situations can a treaty be implemented without Parliamentary sanction.

Not the Potomac, but the Thames, fertilises the flow of Yamuna.

Justice V. R. Krishna Iyer

There is a raging debate over the powers of the Union Government to enter into treaties with foreign powers without the approval of Parliament. It has all along been presumed that such power is inherent. This was not questioned all these years in the way it has at present, in the context of the Indo-US Nuclear Agreement under Section 123 of the American Atomic Energy Act of 1954.

The debate on this issue has stalled the proceedings of Parliament, and the Lok Sabha had to be adjourned sine die.

Article 73

Article 73 of the Constitution merely lays down that the Executive power of the Union shall extend to matters with respect to which Parliament has power to make laws and also to the exercise of such rights, authority and jurisdiction as are exercisable by the Government of India by virtue of any treaty or agreement. Commentators have explained that Executive power is co-extensive with Legislative power. There is, however, no definition of “Executive power”. Political scientists have defined it as the power concerned with “the execution of the will of the state” (Garner).

Halsbury’s Laws of England has summed up the position thus: “Executive functions are incapable of comprehensive definition, for they are merely the residue of the functions of Government after legislative and judicial functions have been taken away. They include the direction of foreign policy and the conduct of military operations.”

This view was approved by the Supreme Court in 1969 (SCC 783 at 798). Constitutional pundits have often spoken of the inherent Executive power vested in the head of State or Crown to take anticipatory action having regard to the exigencies of the situation. Diplomatic power is quite wide and identical with the power over foreign affairs comprising “all matters which bring the Union into relation with any foreign country.”

The Legislative power concerning these matters will of course belong to Parliament. Though the final power is vested in Parliament, it cannot take the initiative in such matters. The task of negotiating treaties and agreements with other countries belongs to the Executive. But do these agreements require ratification by Parliament?

The American practice

In international law, heads of states are fully competent to bind their respective states by entering into treaties and agreements with foreign powers. The treaty-making power of the US President has to be shared with the Senate.

Article II, Section 2(2) of the American Constitution lays down thus: “He (the President) shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators present concur.” The American Senate rejected the Paris Treaty negotiated by President Woodrow Wilson at the end of World War I. But such rejections are rare. Once a Treaty is approved, it becomes the “Supreme Law of the Land” (Article VI). Still, the President is empowered to enter into agreements without the consent of the Senate in matters concerning commerce, recognition of a foreign government, protocol, and so on.

The British law

In the UK, the power to make treaties is the prerogative of the Crown and, in the past, many treaties have been entered into by the Crown without the concurrence of Parliament. However, as a matter of practice, since 1924 all treaties are laid before Parliament before they are ratified by the Crown. In several cases, legislation by Parliament will be necessary, especially if the execution of the treaty requires an alteration of an existing law or where the treaty imposes financial obligations upon the UK.

A treaty as such does not have the force of law in the UK as in the US. No court in the UK would enforce a treaty as a law. No legislation will be required to conclude a treaty to make it binding upon the UK unless the law or the rights of a Britisher are likely to be affected.

The position in India

In India, the position is similar to that in the UK, which goes by the Law of Conventions. We have a written Constitution. Treaty-making is a Legislative subject in the Union List. It is not always the case that a treaty negotiated and entered upon by the Executive will not be binding unless it is ratified by Parliament. From the mere fact that the Legislative powers are divided between the Union and the States by Legislative Lists, for federal purposes, it does not necessarily follow that in order to enable the Executive to function, there must be a law already in existence and that the powers of the Executive are limited merely to the carrying out of these laws.

It is no doubt true that in certain situations, ratification by Parliament will be necessary to make the treaty provisions binding on the citizens and the state. This is because we have a written Constitution. It is only in the following cases that legislation will be required to give effect to a foreign treaty:

Where the treaty affects the justifiable rights of a citizen of India;

Where it provides for payment of money to a foreign power which must be withdrawn from the Consolidated Fund of India;

Where it requires the taking of life or liberty or the imposition of tax (Article 265).

Outside these exceptional cases, it is competent for the Executive to enter into treaties binding on the state. These principles have been culled out from the various rulings of the Supreme Court.

While not all treaties require ratification by Parliament it should be remembered that they do not become self-operative in all situations. Parliamentary legislation will be required for implementing the provisions of a treaty. It is only in a minority of situations that a treaty can be implemented without such Parliamentary sanction.

Ultimately, it is open to Parliament to dismiss the Executive if it thinks that the latter has overstepped its limits by entering into treaty obligations with foreign powers which can undermine the sovereignty of India. At the same time, it may be useful to remember that Article 51 of the Constitution requires that the state shall foster respect for treaty obligations, but this is only a Directive Principle.

(The author is a former Chief Commissioner of Income-Tax.)

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