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Even Nehru with an absolute majority in the Constituent Assembly deemed it fit to seek the approval of the house

A 15-member UPA-Left committee to go into the concerns raised by the government’s outside allies on the Indo-US civil nuclear deal was announced on Tuesday by External Affairs Minister Pranab Mukherjee, who will be its convener. The committee will have six members each from Congress and Left parties and one each from UPA constituents RJD, DMK and the NCP. Mukherjee’s senior Cabinet colleagues A K Antony, P Chidambaram, Kapil Sibal, Saifuddin Soz, Prithviraj Chavan, Lalu Prasad of RJD, T R Baalu of DMK and Sharad Pawar will be the other members representing the government. Left parties will be represented by Prakash Karat, Sitaram Yechury (CPM), A B Bardhan and D Raja (CPI), Debabrata Biswas (Forward Bloc) and T J Chandrachoodan of RSP.

Ahead of the announcement of the composition of the committee Nitin over at the Acorn has raised questions about the constitutionality of such a committee and the precedent it would set. Offstumped digs into the Constituent Assembly debates and the recommendations of the review commission on the Constitution set up  by the Vajpayee NDA Government on this subject.

But first before we get into the constitutionality and risk to National Security it is important to understand what the terms of reference of the committee are. For a Committee that has pretty much held Executive Decision Making at the highest levels to ransom, its terms of reference are vague and open ended.

The committee will look into certain aspects of the bilateral agreement; the implications of the Hyde Act on the 123 agreement and self-reliance in the nuclear sector ; the implications of the nuclear agreement on foreign policy and security cooperation

While the implications of Hyde Act on the 123 Agreement is a matter of public record it is the second aspect of what the proposed committee is expected to do which is concerning – “implications on foreign policy and security cooperation”.

So what exactly does the Constitution have to say on Treaty Making. A good pointer can be found in the recommendations of the National Commission to Review the working of the Constitution setup by the Vajpayee Government. The Commission addressed treaty making in Chapter 8 on Union State Relationships. Here is what the Commission had to say on the current Constitutional position

Article 246 (1) read with Entry 14 of List I- Union List of the Seventh Schedule empowers Parliament to make laws with respect to “entering into treaties and agreements with foreign countries and implementing of treaties, agreements and conventions with foreign countries”. As per the provisions contained in article 253, Parliament has, notwithstanding anything contained in article 245 to 252, power to make any law for the whole or any part of the territory of India 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 (article 253), therefore, overrides the distribution of legislative powers provided for by article 246 read with Lists in the Seventh Schedule to the Constitution. 

The Commission clearly recognizes the supremacy of Parliament on Treaty Making. Now to the Constituent Assembly Debates.

The Constituent Assembly debated Treaty Making on several occasions. On 25th Aug 1947 there were some interesting exchanges on Treaty Making powers in the Constitutions of different countries. The next major point of debate was then Prime Minister Jawaharlal Nehru’s Declaration in London on April 27 1949 on the issue of continued membership of India in the Commonwealth of Nations. The debate then was not unlike the debate now with strong overtones of nationalism, national interest, sovereignty etc. On 16 May 1949 Nehru moved a motion in the Constituent Assembly seeking ratification by the Constituent Assembly of his declaration in London by making these remarks that may have a lesson or two for Messrs Karat and Yechury

I wanted the world to see that India does not lack faith in herself, and that India is prepared to co-operate even with those with whom she had been fighting in the past; provided the basis of co-operation today is honorable that it is a free basis, a basis which would lead to the good not only of ourselves, but of the world also

Then Nehru goes on to seek the approval of the House saying

Obviously a declaration of this type, or the Resolution that I have placed before the House is not capable of amendment. It is either accepted or rejected. I am surprised to see that some honorable Members have sent notices of amendments. Any treaty with any foreign power can be accepted or rejected

During the debate a pointed question is asked which is of relevance in present times

May I know whether the ratification of this Declaration is within the province of his Horse as a constitution-making body?

The answer was in the affirmative from the President. After two days of debate the declaration is put to vote. Nehru in his reply outlines three simple tests on the question of whether the Treaty is in National Interest

does not come in the way of India going forward to her natural destination of a Sovereign Independent Republic, does not hinder India in making rapid progress in the other domains, whether in the world, as it is today, it helps in the promotion of peace and the avoidance of war

Nehru also goes on to acknowledge the power of the House to

It is open to this House or Parliament at any time to break this link, if they so choose, not that I want that link broken. But I am merely pointing out that we have  not bound the future down in the slightest. The future is as free as air and this country can go any way it chooses. If it finds this way is a good way, it will stick to it; if not, it will go some other way and we have not bound it down

Nehru closes his speech with these words

If we are a big nation in size, that will not bring business to us unless we are big in mind, big in heart, big in understanding and big in action also. You may lose perhaps a little here or there with your bargainers and hagglers in the market place. If you act in a big way, the response to you is very big in the world and their reaction is also big. Because, good always brings good and draws good from others and a big action which shows generosity of spirit brings generosity from the other side

The Constituent Assembly debate on the question of joining the Commonwealth has many a lesson for the present day politicians on how to view National Interest and how to engage with world. More specifically there is a lesson for Manmohan Singh and Sonia Gandhi that they should not sidestep parliament and engage with unelected backroom boys via extra constitutional mechanisms on key issues of National Interest.

One may disagree with the BJP’s position on the Indo-US Nuclear Deal but its demand for an up or down vote in Parliament is well justified. Even Nehru with an absolute majority in the Constituent Assembly deemed it fit to seek the approval of the house and acknowledged its power to change the course if the future so demanded.

Offstumped Bottomline: The UPA Left Committee is a fraud on the Constitution and a dangerous precedent. Manmohan Singh must heed Jawaharlal Nehru’s example and seek the approval of the house rather than persist with this subterfuge.

http://offstumped.nationalinterest.in/2007/09/04/the-upa-left-committee-on-indo-us-nuclear-deal/#comments

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