Treaty making power which is an EXECUTIVE power and vested with the Central Government (as per entry 14 of List I to the Seventh Schedule of the Constitution of India) of the day, needs no ratification , unless the TREATY itself has a clause which states that the treaty should be RATIFIED by the Parliament. This power is vested with the EXECUTIVE for EXPEDIENCY. It has been reported in this morning’s papers (including Times of India dt. 17/08/2010) that the Supreme Court of India has made an observation that if the TREATY were to be challenged on the grounds that the treaty went against the BASIC STRUCTURE (that is an amorphous concept- ranging from ‘secularism’ to ‘Liberty’ to ‘Rights’ to yet to be formulated ideas) of the CONSTITUTION OF INDIA, the SUPREME COURT could adjudicate. Thereby the judges have again asserted two things- the Independence of the Judiciary as the final interpreter of the Constitution and secondly, that the power flowing from the Constitution cannot become an untrammeled Frankinstein in the hands of the Government of the day.
The issue is that if the TREATY were to be signed by the executive and later found to be offending the “BASIC STRUCTURE” of the COI, India would have to resile from those positions earlier adopted. Now this could not only be INCONVENIENT but TRICKY. This would become like our CONSTITUENT ASSEMBLY giving GUARANTEES to the erstwhile Princes of the Princely States under the Constitution and later depriving them under an AMENDMENT ( 26th Amendment!) of the Constitution.This is a classic case of a GRANDFATHER giving a PROMISE and the GRANDSON revoking or resiling from the promise after the grandfather’s demise. This leads to lack of CREDIBILITY of our NATION in the long run.
We have invented a new concept called CURATIVE PETITION that goes beyond all the stages of judicial intervention. The last that i heard of was that the Government has moved the Supreme Court of India even on matters of COMPENSATION in the Bhopal Gas victims’ case. If at all the compensation was inadequate, it was because of the delay which ate up all the funds in the form of INFLATION! This CURATIVE PETITION is against all the principles of RES JUDICATA!! In India we have a habit to lengthen procedures instead of perfecting the process. Curative petition is one of those. Likewise, going to the courts after many years in respect of a treaty, which works damage to India’s interest, would be merely a clever way of wriggling out of an International obligation. It should be taken to the Parliament at once and got ratified or rejected. This process of unduly having reparative mechanisms would portray India as a nation which has internal mechanisms to meddle with its Intl. obligations.
The American treaty making is to obtain RATIFICATION from the Senate with a two thirds majority of Members present and voting. The President may negotiate, but for the TREATY to come to effect, it needs Senate ratification. Therefore democratically elected persons are involved in the BINDING OF THE NATION TO CERTAIN INTERNATIONAL OBLIGATIONS.
IN OUR DEMOCRACY, ESPECIALLY FOR OUR POSTERITY TO BE SURE OF THE DEMOCRATIC COURSE, IT WOULD BE DESIRABLE IF WE INCLUDE THE OPPOSITION IN THE PARLIAMENT TO PLAY THE DEVIL’S ADVOCATE IN TREATIES WHICH BIND US IN PERPETUITY.