Parliament, not Cabinet, supreme and sovereign

Parliament, not Cabinet supreme and sovereign

By Amba Charan Vashishth

Not once, numerous times has the present Lok Sabha Speaker, Mr. Somnath Chatterjee, emphatically declared that Parliament is “sovereign and supreme”. And, ironically, it is the same Speaker – no disrespect intended – who while rejecting the Opposition demand for a discussion on the Indo-US civil nuclear deal in the Lok Sabha under Rule 184 in which voting is mandatory, on August 17 said that Parliament “had no competence” to decide on operationalisation of an international agreement or treaty.
Quoting the Constitution Mr Chatterjee said that in the absence of appropriate laws made by Parliament, the right of the Central Government to enter into treaties and agreements with foreign countries in its sovereign power, is unrestricted and becomes effective without any intervention by Parliament.
“It is also well-established”, he went on to say, “that there is no requirement to obtain ratification from Parliament of any treaty or agreement for its operation or enforcement. Thus, Parliament can only discuss any treaty or agreement entered into by the Government, without affecting its finality or enforceability”.
If we accept the fact of “the absence of appropriate laws made by Parliament” and of any specific provision in the Constitution to restrict the “sovereign power” and “the right of the Central Government to enter into treaties and agreements with foreign countries” and these become “effective without any intervention by Parliament”, equally we can also not deny the fact that there is also no such specific provision which deprives this right to Parliament. It cannot be reduced to a paralysed institution, handicapped by the absence of any specific provision in the Constitution and development of any healthy precedent.
That also raises the question: who is sovereign – the Central government, defined as the “Executive” in the Constitution or Parliament? Both cannot be sovereign to the exclusion or independent of the other. In the face of current controversy over the allegations – and denials -- of the Indo-US Deal compromising on the sovereignty of the nation, who is to be the arbiter – the Council of Ministers or the Parliament?
The Constitution-makers appear to have failed to visualize a situation in which a Parliament may wish to vote on a particular agreement or deal and the ruling government may stubbornly refuse – a demand a government may reject only when either there is no transparency in its dealings or when it is not sure of majority in the House.
Successive governments at the Centre have tried to be autocratic in striking agreements and deals with other countries that bind -- and have bound in the past -- the nation in perpetuity, or for a specified period of time, in the matter of economy, defence, and security of the nation. They never sought approval of Parliament -- a negation of the spirit of democracy.

Unhealthy precedent

India’s first Prime Minister, Pandit Jawaharlal Nehru, is responsible for evolving this wrong practice and unhealthy precedent. By his very nature, he assumed unto himself to be the embodiment of the will of the people and custodian of the interests of the nation. He was never condescending to put before the House of the People for approval of agreements he entered into with foreign powers. Nobody, then, had the courage and stature to challenge his stand.
In contrast, the oldest democracy, the United States of America, does have such a provision and the President is constitutionally bound to seek Congress and Senate approval for all such agreements with other countries.
The nation has had to pay very heavily with this autocratic usurpation of Parliament’s authority in the matter of contracting agreements and deals with foreign powers. Pandit Nehru entering into agreements with China on Tibet and on Kashmir, to quote a few instances, has cost the nation heavily.
By not seeking Parliament’s approval on such matters, successive governments may not have violated the letter of the Constitution, but did certainly hurt the spirit.
No individual Prime Minister, or his Council of Ministers, however well-meaning and patriotic they may be, can usurp unto themselves to be the repository of the will of the House without expressly getting it expressed in a formal session.

The Constitution

Let’s go by the provisions in the Constitution. In Chapter I of the Constitution dealing with “The Executive”, Article 53 (1) says: “The executive power of the Union shall be vested in the President…”
Article 74(1) states: There shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President who shall, in the exercise of his functions, act in accordance with such advice”.
Further, Article 75(3) stipulates that “The Council of Ministers shall be collectively responsible to the House of the People”.
A government enters into an agreement with a foreign power only in exercise of the “executive power of the Union….vested in the President” for which there is “a Council of Ministers with the Prime Minister at the head to aid and advise the President…” Nowhere does the Constitution make the Prime Minister or his Council of Ministers autocratic in the exercise of the “executive power”. On the other hand, it makes the Council of Ministers subservient to the will of the people by providing that it “shall be collectively responsible to the House of the people”.
Therefore, from which letter and spirit of the Constitution can the Parliament be denied the right to approve or disapprove an agreement with a foreign government, like the Indo-US nuclear deal?

If the Constitution could be amended at the drop of a hot a little less than hundred times in the last sixty years, why can’t it be amended to provide for parliamentary approval of the agreements a government enters into with foreign governments? Such a step will not infringe the letter and spirit neither of the Constitution nor of democracy. ***