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Did Parliament ratify the Indo-US nuclear deal?

By Arvind Lavakare
September 23, 2005 18:40 IST

President Bush called Dr Manmohan Singh 'a good man' in New York the other day. Uncle Sam, you see, knows he can do business with a prime minister who squeals to him about his predecessor.

Prime Minister at the UN

In his own country, too, Prime Minister Manmohan Singh is hailed not only as 'a good man', but also as 'an honest man' -- never mind that little transgression of long being domiciled in Delhi and yet getting into the Rajya Sabha as a 'permanent resident' of Assam.

So will this good, honest and honourable prime minister of ours please tell us what exactly he meant when he told President Bush the other day that the Indo-US Civil Nuclear Energy Agreement which the two had signed in July last had the 'support' of the Indian Parliament?

After all, records of Parliament debate do not reflect this 'support'. The Communists of all kind, who number 61 in the Lok Sabha and constitute the biggest chunk backing the Congress-led UPA government, opposed the nuclear pact in the House and continue to do so outside.

Do we need the nuclear deal?

Same with the BJP-led NDA. As the political editor of The Asian Age, Seema Mustafa, wrote in her piece of September 17, 'Except for some support from the Congress benches, every single member of consequence raised genuine apprehension about the civilian nuclear deal and urged the government to watch its back as it were.'

Even some acclaimed scientists and defence analysts were critical of the nuclear pact well before Manmohan Singh met with President Bush. P K Iyengar, former chairman of our Atomic Energy Commission, A N Prasad, former director of Bhabha Atomic Research Centre, and A Gopalakrishnan, former chairman of our Atomic Energy Regulatory Board, had publicly voiced their scepticism about the pact, apprehending that apart from the Herculean hurdles in implementing it, it could compromise the Indian nation's security needs in the long run and mean the burial of Homi Bhabha's three-stage energy plan that had represented a model of self-reliance in a very very critical sector.

'Best nuke deal'

It is the criticism of his own allies in government and of the scientific community which should have surprised Manmohan Singh, not that of Vajpayee who, after all, belongs to the biggest political opposition in Parliament. Why then did our good, honest and honourable prime minister single out Vajpayee when squealing to President Bush?

That silly squeal aside, the question remains as to what exactly did Manmohan Singh mean when he told President Bush that the nuclear pact had the 'support' of Parliament? After all, the Indian Parliament had not enacted a legislation upholding the pact. It had not even passed a resolution in support.

Or does Manmohan Singh believe that an international agreement signed by an Indian prime minister has the ipso facto approval of the Indian Parliament? If, without Parliament's approval, Manmohan Singh tomorrow inks an agreement with Pervez Musharraf extinguishing the Line of Control and International Border in Jammu & Kashmir, must the entire nation willy nilly live with that agreement?

These two questions constitute a billion dollar legal issue which all our political analysts and constitutional experts must grapple with here and now.

In the USA, at least, its President's signature on an international treaty/agreement does not by itself bind the American nation to that pact -- not till the agreement becomes an Act of Congress.

As the acknowledged authority, M P Jain, tells us in his book, Indian Constitutional Law, a treaty that the ruling federal government signs with foreign countries is categorised as either a self-executing treaty or a non-self-executing treaty. A treaty is self-executing if it frames a rule which, standing alone, would be enforceable in courts. That treaty becomes operative automatically as an Act of Congress when approved by two-thirds of the US Senate members present. (Recall, how the Clinton administration's much touted and much propagated Comprehensive Test Ban Treaty became stillborn because the Senate didn't okay it.) A non-self-executing treaty can be effectuated only by passing a law.

In either case, therefore, the US President's signature on a treaty is itself not adequate for the American nation to be bound by that treaty which he signs. Hence it is that in order to implement the Indo-US Nuclear Civil Energy Agreement, President Bush is having to first seek approval from the US Congress to adjust American laws and policies.

In India, the political class seems insensitive to the constitutional position with regard to the implementation of an international agreement. There seems to exist a fatal acceptance of any international agreement signed by the Union government of the day. That may well be because the constitutional position itself doesn't appear to be well crystallised -- at least not to this writer.

'The US hasn't fully delivered'

As far as one knows, doubt on the subject first arose when the Indo-Pakistan Agreement was entered into on September 10, 1959 between the prime ministers of India and Pakistan with a view to remove the border areas disputes and problems. The items of the agreement related to exchange, between the two countries, of certain old Cooch Behar Enclaves lying between East Pakistan and Berubari Union 12 of India without claim to compensation for extra area going to Pakistan.

The doubt that arose was whether these exchanges required any legislative action by the Indian Parliament. The question was therefore referred by the President of India to the Supreme Court for an advisory opinion under Article 143(1) of our Constitution.

During the hearings, the Attorney General of India argued that while --

  • Under Article 246, Parliament had exclusive power to make laws on the subject of 'Entering into treaties and agreements with foreign countries' (Item 14 on the Union List set out in Schedule Seven of the Constitution)
  • 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.

The attorney general therefore contended that no separate legislation was necessary to implement that Indo-Pakistan Agreement.

The Supreme Court opined to the contrary. And the necessary legislation was enacted to implement that Indo-Pak Agreement of 1959.

That action seems to warrant a replay now, going by M.P.Jain's unambiguous view that 'All treaties in India need legislation for implementation as, unlike the USA, there is no concept of self-executive treaties.' (Indian Constitutional Law, Wadhwa & Company, Nagpur, Fourth Edition, Reprint 1994, pg. 291).

Introduction of a Parliamentary legislation on the far-reaching and loaded terms of the Indo-US Nuclear Civil Energy Pact is truly the sane thing to do because it will once and for all validate or contradict what Manmohan Singh told President Bush about its support from Parliament.

After all, separating our civil nuclear facilities from the military ones and putting them under international safeguards, continuing the moratorium on nuclear testing indefinitely, signing the Additional Protocol, and working with the US to achieve Fissile Material Cut-off Treaty -- agreeing to all these amounts to surrendering our hitherto independent nuclear policy.

A nation's nuclear policy cannot, surely, be changed by a mere signature of its prime minister, however good, honest and honourable he may be. That signature alone just cannot be binding on an entire nation, can it?

Our Parliament is the one that must attest that signature, for it is Parliament, not the PM, who is supreme.

Arvind Lavakare