New Delhi
12 September 2007
The agreed text of the 123 Agreement does not in any way provide
binding fuel supply assurances, according to a statement issued by two former judges of
the Supreme Court of India and a former judge of the Bombay High Court. Their
statement called into question the UPA Government's position that it has secured iron-
clad fuel assurances from the United States. The justices also said that any action taken
by the government to implement the nuclear deal without the authority of Parliament will
be unconstitutional.
Justices VR Krishna Iyer, PB Sawant and H Suresh said that Article 5.6(a) of the 123
Agreement states in no uncertain terms that the United States will need to amend its
domestic laws for enabling India to obtain reliable and uninterrupted access to fuel. They
said that the US Administration will have to approach the US Congress to get their
present laws, including the Hyde Act, amended, before the US becomes obliged to act
under this agreement insofar as assured and continual fuel supplies are concerned.
Their statement read: "It is unfortunate that the Government of India is rushing through
this deal even before the US has got its laws, including the Hyde Act 2006, amended to
assure life-time uninterrupted fuel supplies, under all circumstances, for the nuclear
reactors we intend to import. As it stands, the 123 Agreement of August 2007 does not in
anyway provide binding fuel supply assurances."
They flagged another concern. The Article 2.1 says that the 123 Agreement is subject to
all the present internal laws of the US. This, they reasoned, will mean not only all US
laws, right from the US Atomic Energy Act of 1954 to the Hyde Act of 2006, but also
amendments to these present laws and to any new law that may be enacted in the future.
Justices Iyer and Sawant, who are former judges of the Supreme Court, and Justice
Suresh, a former judge of the Bombay High Court, went on to assert that the Executive
has no power to enter into any agreement, either with a foreign government or a foreign
organisation, which is binding on the nation. "The agreement," they said, "will be binding
only when it is ratified by the Parliament. There is no provision in the Constitution which
gives such authority to the Executive."
They cited the Articles 73 and 253 and the 6, 12 and 14 Entries in the Union List of the
Constitution to buttress their argument. The Article 253 gives specifically the power to
Parliament to make laws on treaties with other governments or even on decisions made
in international conferences. The Union List Entry 6 makes "atomic energy and mineral
resources necessary for its production" a subject matter of legislation of Parliament. The
Entry 13 talks about participation and taking decisions in international associations, and
the Entry 14 deals with entering into treaties and agreements with foreign countries. The
justices, accordingly, concluded that the Constitution-makers were clear in their mind
that the Executive cannot act without the authority of law and it has no power
independent of law made by Parliament.
They added that any action taken by the Union Government to implement the nuclear
deal without the authority of Parliament is unconstitutional because it amounts to the
usurpation of power of Parliament by the Executive. Doing so will also be undemocratic
because the Executive will be acting arbitrarily, trampling both the rule of law and also
the wishes of the people of India, they said.
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