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Parliamentarisation versus Federalisation

Treaty Making Power of the Executive in India

Friday 11 July 2008, by Amna Mirza

India is a federal parliamentary democracy, with a bicameral Parliament, which bears striking resemblance to the Canadian Constitution. This can be attributed to the presence of British rule in both countries. Article 53 of the Constitution of India vests executive power in the President; however, Article 74(1) requires the President to act in accordance with the advice of the Council of Ministers. The Council of Ministers consists of the Prime Minister and his or her Ministers. Schedule Seven of the Constitution contains the Union List, the State List, and the Concurrent List, each of which set out the matters in respect of which the relevant federal Parliament and State Legislatures can legislate.

A contentious issue in our polity is the chasm between federalisation and parliamentarisation of the treaty making power of the executive. To begin with, let us probe who has the power to enter into treaties? Articles 73 and 246(1), read in conjunction with the relevant items on the Union List, give the Executive (that is, the Council of Ministers) all the powers necessary to negotiate, enter into and ratify treaties.

Treaties define a nation’s stand on foreign policy. Any discussion in the federal realm of the Indian Constitution is incomplete without getting an insight into the States’ role. In our context of treaty making power in practice, the States have very little role in the process of treaty making, particularly given that, constitutionally, no role has been set out for them. The States can consult with the federal government through the Inter-State Council.

It is unclear whether the Council has been used by the States as a means of gaining a greater role in the treaty making process. Aside from the Council, there is other formal mechanism for consultation between the States and the federal government with respect to treaty making.

The States in India have no direct constitutional jurisdiction over foreign relations; yet today their growing assertion can be seen to have evolved by extra-constitutional means. The special constitutional status to Jammu and Kashmir has made it an international issue such that the State Chief Minister has acquired an important role in guiding India’s policy towards its neighbour, Pakistan. Regional leaders have become political heavyweights—for example, Tamil Nadu has a bearing on India’s relations with Sri Lanka; Amrinder Singh broke accords with the Central water sharing agreements; Andhra Pradesh had its own cell to deal with WTO issues.

With the rise of Nepal as a democratic republic with a federal polity and as an important neighbour to be dealt with, the voice of the North-Eastern States have to be factored in while dealing with security and defence ties with Nepal by the Union Government.

Multilateral trading agreements like WTO, with commitments in goods, services, intellectual property and dispute settlement, have reduced the power of the national government. Issues of state sovereignty and federal distribution of power are called into question. The States in India like Punjab approached the Supreme Court as agriculture is a State subject while international trade is a Union subject. Thus disputes have arisen over the treaty making power of the Centre with respect to State subjects and thereby require more consultations for inter-governmental interaction to search for consensus.

An interesting development with reference to parliamentarisation of the treaty making power is the manner in which today the government has been brought to a halt by the assertion of parliamentary majority by the Left Front in the United Progressive Alliance under the pretext of the India-United States nuclear deal; the executive was thus forced to share its power with Parliament.

There is criticism that current practices have led to a ‘democratic deficit’ or a lack of accountability in the treaty making provision and practices. The concern is that the practice, whereby treaties are entered into by the executive (that is, the Union Government) without significant parliamentary involvement, is ‘undemocratic’. There is need for legislative scrutiny and deliberation upon international agreements and treaties as globalisation has made a ‘global’ connect with the ‘local. In India, with the ushering in of the multi-party coalition phase in the globalisation era, this has special bearing for the treaty making power of the executive.

The federalisation of the treaty making power is limited, as States like Bihar, Uttar Pradesh, Madhya Pradesh are yet to exercise a decisive say in foreign policy matters; yet it has a special bearing in our federal set-up juxtaposed as it is against the present phenomenon of parliamentarisation of the treaty making issue. This needs to be factored in by the political diplomatic community while dealing with the larger realist lexicon of ‘national interest’, in the present neo-liberal post-modern paradigm of foreign policy.

REFERENCES

Khorana, Sangeeta, Federal States and Globalisation in Multi-lateral Trade Governance, Institute of Federalism, 2004.

Saxena, Rekha, “Treaty Making Powers: A Case for Federalisation and Parliamentarisation”, Economic and Political Weekly, Vol. 43, No. 21, May 24-30, 2008.

Matto, Amitabh, India: Growing Role of State: Dialogue on Foreign Relations in Federal Countries, Forum of Federation booklet series, 2007.

The author is an M.Phil. student in Political Science, University of Delhi.

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