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Transparency in treaty-making

The question whether the power to conclude international treaties should lie within the legislative jurisdiction of India's Parliament or the political executive — one that the General Secretary of the Communist Party of India alluded to recently — has not received the attention it merits. Although there is near universal consensus that popularly elected bodies should have a say in decisions made on behalf of citizens, the power to ratify treaties continues to be exercised by the executive in countries such as the United Kingdom and France, while there is growing pressure to increase legislative participation in Australia. In the United States a treaty can come into force only if it is ratified by two-thirds of the Senate. Under the Indian Constitution, the power to enter into treaties figures in the Union List that covers areas on which Parliament has the exclusive right to legislate (Article 246), while Article 73 extends the executive power of the Centre to all matters on which Parliament can legislate. For implementing any treaty, Parliament under Article 253 can legislate on any item even under the State List. But in the absence of a specific provision stipulating the procedure for the negotiation and ratification of treaties, the exercise of this power has by and large remained a preserve of the executive, which has tended to interpret Article 73 to mean that its authority extends over the subjects included in the Union List. On the contrary, the judiciary has through several pronouncements emphasised that the power to enter into a treaty is essentially political in nature and therefore called for the enactment of a separate legislation to govern the conclusion of treaties.

The National Commission to Review the Working of the Constitution has voiced a similar view and recommended that Parliament pass a law to regulate the treaty-making power of the government, but it stopped short of prescribing parliamentary ratification. Any process of ratification of international obligations by national parliaments will necessarily be protracted in view of conflicting perceptions and interests and various other factors such as the level of development of institutional mechanisms relative to the maturity of democracy. Conversely, the pressures to circumvent the various checks will also be considerable in the context of the increasing concentration of power in the executive arm of governments the world-over and the pervasive practice of applying the guillotine with respect to domestic legislation. No doubt, the executive is ultimately accountable to the legislature in a parliamentary democracy and it is highly unlikely, given the majority enjoyed by the government of the day, that parliament will reject a treaty entered into by the government. Yet, the requirement of ratification by Parliament will ensure that international agreements and treaties with far reaching implications are subjected to a closer legislative scrutiny and a wider political and public discussion.

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