Article on Indo-US Nuclear Deal

Here is the link to Appa's article on the Indo-US Nuclear Deal and the Power of the Government to Enter into International Agreements, on the Lokrajsangathan web-site. I am reproducing it below for fear of link rot:

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The Indo-US Nuclear Deal and the Power of the Government to Enter into International Agreements



C. A. Balasubramanian

[Additional Controller General of Accounts, Government of India (retired)]



Readers may kindly recall that a majority of the members of Parliament, eminent Political Analysts, our nuclear scientists and engineers who had spent a lifetime of dedicated service in building our nuclear power stations and operating them, besides working on R&D programmes, veteran journalists, social workers and former Prime Minister Mr. V. P. Singh have all come out against the agreement relating to the Indo-US Nuclear Deal, in no uncertain terms.

The 1-2-3 Agreement has been extensively commented upon by strategic analysts, experienced commentators and scientists, who do not have any axe to grind. They have pointed out that the deal goes against the strategic interests and energy security of India.

The official response to the various weighty criticisms or doubts have been dismissive and deplorably inadequate. The Hindu, in its editorial dated June 16, 2008, while commenting on the Government's efforts to persuade the Left Parties to let the Government go to the International Atomic Energy Agency (IAEA) and negotiate a draft safeguards agreement, without showing the draft to them, said that the IAEA safeguards agreement is part of a project that vitally concerns India's nuclear energy and strategic future over the long term.

But non-consultation, non-transparency and a secretive mindset have characterized the handling of the nuclear deal by the Government from the time it was initiated in July 2005. It passes one's comprehension how, in spite of the horrendous consequences which will flow from the Deal, and which various experts, nuclear scientists and others have pointed out at great length, the Government has the brazenness to go about finalizing this Deal. It is as if the people of India and the members of Parliament that represent them do not exist, let alone have the prerogative of telling the Government what they think of the Deal - and order the Government what to do about it. According to the minority Government at the Centre, the Government thinks that the Deal is in the `national interest', and that should be sufficient for the Parliament and the people. The Government chooses to ignore the fact that whatever action it takes on any matter has to be in the national interest: that is the bottom line. If any action they take is not in the national interest, the Government will be guilty of treason, and will have to face action accordingly. If the adverse consequences of any action of the Government outweigh the presumed benefits expected from it, the Government is duty bound to drop the same.

It will be relevant to consider briefly the provisions of the Constitution of India regarding the Parliament and the Executive (that is the Government).

Legislation:

Traditionally, the main functions of a Legislature are to legislate. Parliament has the power to make laws within its area of competence, as defined and delimited under the distribution of legislative powers between the Union and the States.

Parliamentary control over Government:

In a parliamentary system of Government and under the scheme envisaged by our Constitution, Parliament has to ensure Executive or ministerial responsibility, financial control and administrative accountability. Parliamentary control over the Executive of the Government is based on: 1) the Constitutional provision of collective responsibility of the Council of Ministers to the popular House of Parliament, and 2) Parliament's control over the Budget (Articles 75, 114-116, 265). Parliamentary control over the Executive is political in nature. The answerability of the Executive is direct, continuous, concurrent and day to day, points out Subhash C. Kashyap in his book Our Consitution - An Introduction to India's Constitution and Constitutional Law.

There is a clear distinction between the functions of the Executive and those of Parliament (Art. 75) as defined by India’s Constitution makers. The Parliament deliberates, discusses, legislates, and has also a legitimizational role. The Executive governs - on behalf of Parliament and the people. The Executive has unlimited right to initiate and formulate legislative and financial proposals before Parliament and to give effect to approved policies unfettered and unhindered by Parliament. But Parliament has unlimited power to call for information, to discuss, scrutinize and put the seal of approval on proposals made by the Executive. The Government seems to be acting on the premise that, under Art. 73 (a), the Executive power of the Union extends to matters with respect to which Parliament has powers to make laws, and as Parliament has powers to make laws relating to agreements with a foreign power or foreign organization, the Government has power to enter into agreements on its own, as in the case of the Indo-US Deal. This is not a tenable argument.

The Government has no inherent powers. It can exercise powers which it was exercising before the Constitution came into force, and the powers vested in it by laws made by Parliament in accordance with the provisions of the Constitution. As no law has been passed by Parliament about the powers to be exercised by Government in matters of international agreements, etc., all such agreements have got to be approved by Parliament. It is the fault of Government not to have brought in legislation to govern such matters. If hundreds of agreements have been executed by Government with foreign Governments / organizations (since 1950) they have all to be legitimized by ratification by Parliament.

One of the arguments put forth is that there are no provisions in the Constitution which say that Government should not enter into agreements with foreign Governments, institutions, etc.. But powers cannot be claimed by Government on the basis of `non-existence'. Powers to be exercised by Government have to be specifically provided for in the Constitution and / or in the laws made by Parliament. And if there is any ambiguity, the interpretation should be in favour of Parliament and for strengthening Parliament and democracy, and not in favour of Government which will only lead to erosion of the Constitution.

The writer had in an earlier article on the Indo-US Nuclear Deal on this august web-site drawn attention to the statement issued by two former judges of the Supreme Court of India, J. J. V. R. Krishna Iyer and P. B. Sawant and a former Judge of the Bombay High Court Justice H. Suresh. They had unequivocally opined that the Executive has no power to enter into any agreement with a foreign Government or organization, which is binding on the nation. The agreement will be binding only when it is ratified by Parliament. There is an underlying assumption that, before the Union Government exercises its Executive power, there is a law enacted by Parliament on the subject concerned.

Making a detailed analysis of the Indo-US Deal, a former Prime Minister had posed the question: ``Is there a deal behind the Indo-US Deal?'' The time has also come to ask: ``Who is or who are behind this Deal?'' which is sought to be signed and sealed, circumventing Parliament, public opinion and the people of India. One of the top leaders had expressed the view that the Deal is not for the public interest, but for personal gains. Perhaps the leader has succeeded in hitting the nail on the head?