The vexed Indo-US civilian nuclear deal marks, for the first time in India’s parliamentary history, a tussle for supremacy between the executive and the legislature over an international agreement. 

So far, almost all the major treaties or agreements that India has entered into with others – the Nehru-Liaqut Agreement of 1950, the India-China Agreement of 1954, the Tashkent Agreement of 1965, the Indo-Soviet Treaty of 1971, the Simla Agreement of 1972, the Indo-Lanka Accord of 1987, the WTO agreements in 1994 and the Indo-Bangladesh treaty on Ganga-water sharing in 1996 – were never discussed and debated in Parliament in advance.

Even after the treaties were concluded, the parliamentarians, in the absence of any mandatory requirement of the Parliament’s approval for their ratification, have been helpless in modifying the texts.

This practice is unlike the ones in leading democracies such as the US and Australia, where legislative approval of the international agreements, that their governments arrive at, is mandatory. In fact, Australia does not ratify a treaty or accept an obligation under the treaty until appropriate domestic legislation is in place in respect of treaties where legislation is necessary to give effect to the treaty obligations.

Ironically, under the Indian Constitution, particularly the Seventh Schedule and Article 253, the Parliament can legislate and involve itself in matters pertaining to treaties and agreements with foreign countries and organisations. But, it has not so far made any law either regulating the procedure concerning the entering into treaties and agreements or with respect to their implementation.

Incidentally, as an opposition parliamentarian on March 5, 1993, George Fernandes had given notice of intention to introduce the Constitution (Amendment) Bill, 1993 in the Lok Sabha for amending article 253 to provide that treaties and conventions be ratified by each House of Parliament by not less than one half of the membership of each House and by a majority of the legislatures of not less than half the States.

But the Bill was not listed for consideration during the life of that Lok Sabha. Prior to that in February 1992, M A Baby, a Rajya Sabha member, had also given a similar notice. His Bill came up for discussion in the Rajya Sabha only in March 1997. But it did not go beyond the discussion-stage.

It is important to note that during the discussions, external affairs minister Pranab Mukherjee, whose Congress party was supporting the then minority United Front government, had strongly argued in favour of the Executive retaining its primacy in treaty making.

He had pointed out that if parliamentary approval would be mandatory for the conclusion of all the treaties, then given the divisive nature of the polity no important and sensitive treaties such as the water-sharing treaties with Nepal and Bangladesh and WTO agreements could ever have got India’s accession. He had only conceded that Parliament could have informed debate and discussion on the relevant provisions of the treaty, but without any power to veto it.

However, there are undeniable merits in Parliament and the public in a democracy being involved more and more in the process of treaty-making because in these days of globalisation, it is ultimately the people whose rights and entitlements are going to be affected by these treaties.

In fact, the National Commission to Review the Constitution (NCRWC), which had been set up by the previous Vajpayee government, had suggested the constitution of a “ten to fifteen member- committee” of Parliament to whom every treaty, agreement or convention proposed to be signed or proposed to be ratified shall be referred.

While placing the draft or signed treaty before such a committee, a statement setting out the important features of the treaty or agreement, reasons for which such treaty or agreement is proposed to be entered into, the impact of the treaty upon our country and upon our citizens, should be clearly and fully set out.

The committee will then decide within four weeks of such reference whether the treaty should be allowed to be signed by the Union Executive without referring the matter for consideration to Parliament or whether it should be referred to Parliament for consideration.

Alternatively, the NCRWC had also proposed a new law made by Parliament categorising the treaties, agreements, conventions and covenants viz., (a) those that the executive can negotiate and conclude on its own and then place the same before both Houses of Parliament by way of information.

In this category may be included simple bilateral treaties and agreements which do not affect the economy or the rights of the citizens; (b) those treaties which the executive can negotiate and sign but shall not ratify until they are approved by Parliament.

Here again, a sub-categorisation can be attempted: Some treaties may be made subject to approval by default (laying on the table of the House for a particular period) and others which must be made subject to a positive approval by way of a resolution.

Given the prevailing fractured polity in this era of swiftly-shifting coalitions of political parties, the second suggestion makes better sense, because a consensus within the Parliamentary committee to determine the nature of the treaties as per the fist suggestion will prove, otherwise, highly elusive.