AUGUST 28, 2006

By Shiva Kant Jha, Advocate, Supreme Court

'THE Court's conclusion ultimately rests upon a single ground: Congress has not issued the Executive a 'blank check.'

Justice Breyer, with whom Justice Kennedy, Justice Souter, and Justice Ginsburg join, concurring: the U.S Supreme Court in Hamdan v. Rumsfeld decided on June 29, 2006

As a lot of queries have been made by many of my friends to know the subject matter of the writ petition recently filed by me as a citizen of the Republic of India, I think it worthwhile to set forth in short the subject-matter of the writ petition. I think I must do it as I have initiated a public interest litigation raising issues of a broad-spectrum impact on our polity and public interest. In short, the writ petition brings certain matters to the attention of the Hon'ble Court to vindicate the Rule of Law and get the unlawful conduct of the administrative authority stopped; and seeks, in public interest, the issuance of appropriate directions, orders or writs in the nature of mandamus or declaration, or any other writ or order to the Central Government so that the executive acts, ultra vires the Constitution of India are held domestically inoperative. The remedies have been sought by invoking Article 32 of the Constitution of India read with Art 142 , and the terms of judicial oath for the breach of the Fundamental Rights under Articles 14, 19(1)(a), 21, and 29 of the Constitution of India, and transgressions of several mandatory constitutional limitations.

The core question in this writ petition centres round the proposition that the Central Government has no extra-constitutional power to be exercised at international plane de hors the mandatory constitutional and statutory provisions, as even at the international plane it has no hip-pocket having unbridled power. A lot of authorities, both binding and persuasive, have been examined. The broad effect is thus stated by Oppenheim who observed: 'Constitutional restrictions: 'It is well established as a rule of customary international law that the validity of a treaty may be open to question if it has been concluded in violation of the constitutional laws of one of the states party to it, since the state's organs and representatives must have exceeded their powers in concluding such a treaty. '' .

Our Constitution does not grant the Executive power to destroy our constitutional polity by entering into Treaties like the Treaty of Versailles, which concluded the World War II, by putting Germany on mat under the spiky boots of the rapacious victors; or that like that the Treaty of Surrender which was signed by Japan in Tokyo Bay aboard the battleship USS Missouri after being trounced and pulverised after atomic bombardment in the World War II. Such treaties are beyond our Constitution, (in fact beyond the contemplation of the constitution of any civilized and self-respecting nation).

The Central government signed and ratified the Uruguay Round Final Act without taking the nation in confidence, without obtaining our Parliament's approval, and without conforming to the constitutional limitations as if the Executive was signing and ratifying a Treaty like the Treaty of Versailles, or the Treaty of Surrender. On proper analysis, the Final Act is no different from the Treaty of Surrender as it was done in complete defilement and defacement of our Constitution by subjugating the nation under a pactum de contrahendo to a regime under which (a) our Fundamental Rights have been violated; the constitutionally mandated objectives of the Government are substituted by the objectives articulated under the Uruguay Round Final Act; (c ) the legislative power has been shed off in favour of the WTO and other institutions arising from the cauldron of the Act as their overt and covert commands create a situation of fait accompli to coerce Parliament to enact law toeing such lines, and as also because the Executive makes a trespass on several legislative fields, yet not occupied by Parliamentary enactments, thereby precluding our Parliament to legislate in future on such fields as they would stand occupied by the WTO commands masquerading as the policies of the government implemented under Art 73 of the Constitution; (d) the judicial power has been illegally granted to foreign bodies, like the Disputes Settlement Body by reducing the reach even of our Supreme Court; (e) by commanding our domestic institutions, like Parliament and the Superior Courts to conform their laws to the obligations under the Uruguay Round Final Act; (f) by begetting constitutional amendments, and powers to amend the Constitution, to render it Market friendly even in matters which not even our Parliament can amend even in exercise of its constituent power; (g) riding roughshod on the profoundest principle of constitutional polity, of which the earliest masterly exposition was done by Chief Justice Marshall in Marbury.

The petitioner agrees with the findings of in the Report of the Peoples' Commission on GATT (by V.R. Krishna Iyer, O. Chinnappa Reddy, D.A. Desai , the former Judges of the Supreme Court, and Rajinder Sachar, the former Chief Justice of Delhi High Court ) that our acceptance and ratification of the Uruguay Round Final Act was clearly beyond constitutional competence:

(a) for abdicating our sovereignty in socio-economic space,

(b) for breaching the basic features of our Constitution,

(c ) for violating the mandatory constitutional limitations under Articles 73 and 253 of the Constitution,

(d) for violating the constitutionally mandated principles and directives viz. (i) Constitutional basics, (ii) Judicial Review, (iii) Treaty-making power,(iv) Federal structure, (v) Fundamental Rights, (vi) Democracy, and (vii) Sovereignty.

The petition questions the constitutionality of our acceptance of the obligations under the World Trade Organization seeking a rule that the Final Act Embodying The Results of the Uruguay Round of Multilateral Trade Negotiations, the Final Round of the General Agreement on Tariffs and Trade, the Agreement Establishing the World Trade Organization, and our participation in the World Trade Organization as a member of that organization, is repugnant to the provisions of our Constitution and therefore, unconstitutional. It also asserts that there is the rigid constitutional and statutory limitations on the Central Government's power to enter into the Double Taxation Avoidance Agreements (popularly known as Tax Treaties), and it has shown how these Treaties, being done by the Executive under its Opaque System, are in breach of the mandatory constitutional and statutory limitations including the limitations placed by Articles 14, 19, and 21 of the Constitution.

Treaties in every civilized and democratic country world over is done with Parliamentary consent obtained after proper deliberations. The Petitioner has examined the constitutional practice in the U.K, the U.S.A, Australia, Canada, South Africa and many other countries to prove his point. For even stronger reasons a tax treaty is legislated in the USA, Canada, Australia, and most other countries. Even in the U.K. a tax treaty is done through an Order-in-Council after the presentation of the resolution by the House of Commons to the Crown under a practice established by the Parliament Act 1911 on the model of which are framed a set of material provisions in our Constitution for keeping a close control on the revenue of the State.

Despite clear provisions under our Constitution, and what was stated in the Constituent Assembly, Treaties are done in our country by the Executive under an Opaque System. This state of affairs must end if our democracy and constitutional polity are to survive for the common people of India.

The advanced in the writ petition leads to an assertion that the Instruction No 12 of 2002 dated Nov. 1, 2002 [F. No. 480/3/2002- FTD ] issued by Government of India, Department of Revenue (Foreign Tax Division), and the Rules prescribed in Part IX-C of the Income-tax Rules, 1962 are ex facie in breach of Articles 14, 19, and 21 of the Constitution of India, and also are ultra vires the Income-tax Act, 1961.

The writ petition raises, for the first time, the issues pertaining to our Government's Treaty-Making Power in this era of Economic Globalization; and he submits:

(a) That issue involving the Treaty-Making Power is coming up as the principal issue, for the first time as in no existing decision this Hon'ble Court ever examined the issue within our constitutional framework.

(b) That for the first time this Hon'ble Court is requested in this Writ Petition to declare the ambit and reach of the Treaty-Making power as conferred on the Executive by the Constitution and the law of India.

This writ petition brings to the judicial consciousness the recommendations on Treaty-Making procedure as made by (i) the Constitutional Review Commission; and (ii) the Report of the Peoples' Commission on GATT ( consisting of V.R. Krishna Iyer, O. Chinnappa Reddy, D.A. Desai , the former Judges of the Supreme Court, and Rajinder Sachar, the former Chief Justice of Delhi High Court). The petitioner too has brought to the Court's notice his own suggestions for evaluation, and if approved, in whole or part or with appropriate modification, to declare them for the guidance of the executive. Some of the suggestions made by the petitioner are the following:

(i) Treaties which modify or override the domestic laws must be ratified only after Parliament's approval through a legislation, or on a resolution by the Lok Sabha (the way a tax treaty is done in the U.K.).

(ii) Treaties of domestic operations, affecting the areas for legislative operations under the entries in the Seventh Schedule, should be ratified only after Parliamentary approval is accorded or the bill is enacted as an Act.

(iii) Treaties affecting constitutional provisions, other than those affecting the basic features of the Constitution should be made only after obtaining an advisory opinion of the Supreme Court thereon as to its constitutional validity.

(iv) Treaties, which affect the basic features of our Constitution, should be subjected to popular referendum, after obtaining the opinion of the Supreme Court thereon, before they are ratified.

Besides, he clarifies two more important points relevant to the suggestions so made:

(i) If the procedure of reference to the Supreme Court is to be avoided, then a treaty should be ratified after Parliamentary approval accorded in each House by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting.

(ii) Our Constitution does not prescribe recourse to referendum. But people's claim that such treaties be decided through a referendum emanates from the very fact that 'We, the people' have adopted, enacted and given to ourselves the Constitution. Whatever protocol of referendum is chosen it must be an effective plebiscitary device to support the terms of a contemplated treaty. As Chief Justice Marshall could hold in Marbury v. Madison that the power of Judicial Review emanates from the judicial oath taken under a written constitution with entrenched rights, so should our courts and our Parliament see the legitimacy of this procedure in the fact that, when all is said, political sovereignty inheres in the people of India.

Explaining the rationale of the suggestions the petitioner has observed that the adoption of the above-suggested procedure would help our country to withstand the pressures to which it is subjected in handling the international negotiations. If a particular draft treaty is not approved per procedure described above, the government would have no option but not to proceed further. This would make the process of treaty making transparent, and democratic. This would help our government to answer effectively the predatory international financiers that the executive government of India works under constitutional limitations, which it cannot evade. An idea must be drummed into the ears of all, that obligations under a treaty should neither be created in darkness, nor carried out under an opaque system. This would put every body under notice that ratification as such does not entitle anybody to any legitimate expectation before the treaty's incorporation into domestic law as per procedure suggested. This procedure would inhibit the executive from taking things for granted.

The petition seeks a declaration that the Central Government must conform to the constitutional limitations as it has no unbridled and reserve power in its hip-pocket; and to declare the parameters delineating the right constitutional perspective under which a treaty can be negotiated, adopted, and ratified in our country. He believes that the extent a treaty goes counter to the mandatory provisions of our Constitution, it should be held, to that extent, domestically inoperative in our country.

It is an overripe time to protect our Constitution and polity from the 'Full spectrum dominance' of the corporate imperium. The talisman, that the Father of our Nation had prescribed, is the quintessence of the constitutional imperatives with which the Executive cannot be allowed to play truant by entering into Treaties like the Uruguay Round and the Agreements for the Avoidance of Double Taxation perpetrated through the executive acts done neither under the sunshine nor with the approval of Parliament. The talisman given by Gandhiji runs thus:

'I will give you a talisman. Whenever you are in doubt or when the self becomes too much with you, apply the following test:

Recall the face of the poorest and weakest man whom you have seen and ask yourself if the step you contemplate is going to be of any use to him. Will he gain anything by it? Will it restore him to control over his own life and destiny? In other words, will it lead to Swaraj for the hungry and spiritually starving millions?

Then you will find your doubts and yourself melting away.'

(The views expressed are strictly personal)