Treaties & States
|On international treaties and the rights of the States of the Indian Union in the context of the setting up of a Lokpal and Lokayuktas.|
LOK SABHA, DECEMBER 27: Finance Minister Pranab Mukherjee speaks during the debate on the Lokpal Bill. At left is Congress president Sonia Gandhi. Mukherjee clarified during the speech: "There will be no assault on the federal structure because we are going to bring an amendment... that without the consent of the State government the notification under Section (1) and (4) will not be issued." An overriding proviso in Clause 1(4) of the Bill, which empowers the government to bring the Act in force, reads thus: "Provided that the provisions of this Act shall be applicable to a State which has given its prior consent to the application of this Act."
TOWARDS the end of the proceedings in the Lok Sabha on the Lokpal and Lokayuktas Bill, 2011, on December 27, the government moved an amendment which, if moved earlier, would have saved much time and spared all the contentious spirit that crept in inescapably over States' rights. The central issue was whether the Union could impose its own statute on a Lokayukta on the States, very many of which already had that institution established by the State laws.
The Government of India claimed that its Bill was in implementation of the United Nations Convention Against Corruption, which the U.N. General Assembly adopted on October 31, 2003. India ratified it on May 12, 2011. The Lok Sabha debate on the Bill centred on Articles 252 and 253 of the Constitution.
Article 252 reads thus: "(1) If it appears to the legislatures of two or more States to be desirable that any of the matters with respect to which Parliament has no power to make laws for the States except as provided in Articles 249 and 250 should be regulated in such States by Parliament by law, and if resolutions to that effect are passed by all the Houses of the legislatures of those States, it shall be lawful for Parliament to pass an Act for regulating that matter accordingly, and any Act so passed shall apply to such States and to any other State by which it is adopted afterwards by resolution passed in that behalf by the House or, where there are two Houses, by each of the Houses of the legislature of that State.
"(2) Any Act so passed by Parliament may be amended or repealed by an Act of Parliament passed or adopted in like manner but shall not, as respects any State to which it applies, be amended or repealed by an Act of the legislature of the State." This left it entirely to the States whether or not to accept the Centre's model.
In contrast, Article 253 gives a carte blanche to the Centre: "Notwithstanding anything in the foregoing provisions of this Chapter (on Centre-State relations in the legislative sphere), Parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country/countries or any decision made at any international conference, association or other body." The italicised words were added on October 14, 1949, without debate in the Constituent Assembly just as the text was on June 13, 1949. No one perceived its wide sweep. If the Government of India concludes an international convention on, say, health, Parliament will have the power to make any law to implement it despite the fact that the subject falls in the State List. More, it applies not only to a treaty but covers any "decision" made at any international "conference", association or "other body".
Sir Ivor Jennings threw up his arms in alarm as he read this and wrote: "It does not specifically refer to conferences, association and other bodies representing governments, and, on its face, it would seem to apply to any international organisation representing, let us say, universities or trade unions. Nor would it seem to matter that the organisation had merely advisory powers. The word 'decision' cannot mean a binding decision, for the assumption is that legislation is needed to implement it. If this is the correct interpretation, the Union Parliament can acquire jurisdiction over university education by the simple process of a decision of the Inter-University Board of India, which is an international body, because it contains representatives of universities in Burma and Ceylon. One notes, too, that the Comintern and the Fourth International are international bodies. This is such a startling invasion of States' rights, thrown in casually by a few words at the end of an Article, that one doubts its correctness. Possibly, a court would hold that 'international' implied a governmental organisation, that it applied to 'association' and 'body' as well as 'conference' and that 'body' had to be read ejusdem generis" [in the same sense as the preceding words] (The Indian Constitution).
Entry 13 in the Union List reads: "Participation in international conferences, associations and other bodies and implementing [ sic] of decisions made thereat." Entry 14 concerns "entering into treaties and agreements with foreign countries…." Entry 12 concerns the United Nations. They are all encapsulated in Entry 10: "foreign affairs; all matters which bring the Union into relation with any foreign country".
Article 73 (1) says that "subject to the other provisions of this Constitution, the executive power of the Union shall extend (a) to the matters with respect to which Parliament has power to make laws". The government's executive power extends to all matters in the Union List.
However, Finance Minister Pranab Mukherjee clarified when he spoke in the Lok Sabha on December 27: "You have the apprehension that the federal structure will be jeopardised. But there will be no assault on the federal structure because we are going to bring an amendment… that without the consent of the State government the notification under Section (1) and (4) will not be issued." That amendment was passed in the Lok Sabha. ( The Hindu, January 3, 2012).
Clause 1(4) of the Bill empowers the Government of India to bring the Act in force on such dates as it may appoint. An overriding proviso reads thus: "Provided that the provisions of this Act shall be applicable to a State which has given its prior consent to the application of this Act." If this proviso had been moved earlier, rather than in the evening, a wasteful debate would have been avoided.
Treaties and ratification
Treaties are of two kinds; self-executing and ones that require domestic legislation to enforce them. A treaty of alliance is self-executing. It does not operate as law. If, however, a treaty's implementation depends on its enforcement within the country and affects the citizen's rights, domestic legislation is necessary. By itself a treaty is not law and does not alter the law. A convention against narcotics, for example, cannot be enforced without a law to punish the offences. Treaty-making is an executive function. Parliamentary democracies do not make ratification by Parliament obligatory.
The United States' Constitution, however, makes ratification obligatory. Article II, Section 2, says that the President "shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators present concur". Article VI (2) says: "This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land."
There are words of enormous plenitude: "The supreme law of the land." The courts can be trusted to "read down" such words by giving them a restricted meaning. In Geofroy vs. Riggs (133 U.S. 258; 1890), Justice Field began by admitting that "the treaty power, as expressed in the Constitution, is in terms unlimited," but he went on to note that it was subject to those implied "restraints which are found in that instrument against the action of the government or of its departments, and those arising from the nature of the government itself and of that of the States". Since this language was a little vague, Field added: "It would not be contended that [the treaty power] extends so far as to authorise what the Constitution forbids, or a change in the character of the government or in that of one of the States, or a cession of any portion of the territory of the latter, without its consent."
In Missouri vs. Holland (252 U.S. 416; 1920), the Supreme Court spoke through the great judge Oliver Wendell Holmes. He said: "Acts of Congress are the supreme law of the land only when made in pursuance of the Constitution, while treaties are declared to be so when made under the authority of the United States. It is open to question whether the authority of the United States means more than the formal acts prescribed to make the convention. We do not mean to imply that there are no qualifications to the treaty-making power; but they must be ascertained in a different way."
Justice Hugo Black carried the logic further in Reid vs. Covert (354 U.S. 1; 1957). Quoting Article VI, he said: "There is nothing in this language which intimates that treaties and laws enacted pursuant to them do not have to comply with the provisions of the Constitution. Nor is there anything in the debates which accompanied the drafting and ratification of the Constitution which even suggests such a result.… It would be manifestly contrary to the objections of those who created the Constitution, as well as those who were responsible for the Bill of Rights – let alone alien to our entire constitutional history and tradition – to construe Article VI as permitting the United States to exercise power under an international agreement without observing constitutional prohibitions. In effect, such construction would permit amendment of that document in a manner not sanctioned by Article V. The prohibitions of the Constitution were designed to apply to all branches of the National Government and they cannot be nullified by the Executive or by the Executive and the Senate combined. There is nothing new or unique about what we say here. This court has regularly and uniformly recognised the supremacy of the Constitution over a treaty….
"The treaty power, as expressed in the Constitution, is in terms unlimited except by those restraints which are found in that instrument against the action of the government or of its departments, and those arising from the nature of the government itself and of that of the States. It would not be contended that it extends so far as to authorise what the Constitution forbids, or a change in the character of the government or in that of one of the States, or a cession of any portion of the territory of the latter, without its consent (emphasis added, throughout).
"This court has also repeatedly taken the position that an Act of Congress, which must comply with the Constitution, is on a full parity with a treaty, and that when a statute which is subsequent in time is inconsistent with a treaty, the statute to the extent of conflict renders the treaty null. It would be completely anomalous to say that a treaty need not comply with the Constitution when such an agreement can be overridden by a statute that must conform to that instrument."
The Bricker amendment
In response to widespread agitation, Senator John Bricker of Ohio in 1952 introduced a constitutional amendment to limit the scope of the federal treaty power. The Bricker amendment read as follows:
"Section 1. A provision of a treaty which conflicts with this Constitution shall not be of any force and effect.
Section 2. A treaty shall become effective as internal law only through legislation which would be valid in the absence of a treaty.
Section 3. Congress shall have the power to regulate all Executive and other agreements with any foreign power or international organisation. All such agreements shall be subject to the limitations imposed on treaties by this Article."
Thus Senator Bricker and his supporters sought to negate the possibility implicit in the Supreme Court opinion in Missouri vs. Holland (1920) that a treaty could enlarge federal power at the expense of the States, and equally that a treaty might be internally self-enforcing without the consent of Congress.
Although at one point it appeared that Bricker had the votes needed to pass the amendment, this support dwindled when President Dwight D. Eisenhower and Secretary of State John Foster Dulles announced their opposition to the proposal. In February 1954, the Senate voted 60 to 31, one vote short of the required two-thirds constitutional majority, for a modified version of the Bricker amendment that omitted the "which clause" and toned down the language on executive agreements. With this defeat, the amendment lost its political force, and by the late 1950s it had become a dead issue.
In 1946, Sir B.N. Rau, Constitutional Adviser of the Constituent Assembly, prepared a set of papers on various topics for the guidance of its members. They were published in three Volumes as Constitutional Precedents (First series). One volume had a paper on the "ambit of 'foreign affairs'". The volumes should be reprinted.
Rau posed the question and proceeded to answer it. "Can the Union utilise the treaty making power given to it by the category 'foreign affairs' for the purpose, say, of enforcing a forty hour week in selected Indian industries, 'conditions of labour' being assumed to be a provincial subject? Dr. Wynes answers a similar question under the Australian Constitution in the affirmative ["Legislative and Executive Powers in Australia", 1936, page 209; but he wrote before the Privy Council decision in Attorney General for Canada vs. Attorney General for Ontario and Others (1937 A.C. page 326)]. In this case, Privy Council ruled as invalid certain Acts of the Canadian Parliament regulating conditions of labour in various ways, as the legislation related to a provincial subject, although it was sought to be justified on the ground that it was required to give effect to certain international conventions which had been ratified by the Dominion of Canada: 'The Dominion cannot, merely by making promises to foreign countries, clothe itself with legislative authority inconsistent with the Constitution which gave it birth. It must not be thought that the result of the decision is that Canada is incompetent to legislate in performance of treaty obligations. In totality of legislative powers, Dominion and provincial together, she is fully equipped. But the legislative powers remain distributed and if, in the exercise of her new functions derived from her new international status, Canada incurs obligations, they must, so far as legislation be concerned, when they deal with provincial classes of subjects, be dealt with by cooperation between the Dominion and the provinces.' It is interesting to note that the existing provision on this point in the Government of India Act, 1935, follows a similar view. Section 106(1) states: 'The Federal Legislature shall not, by reason only of the entry in the Federal Legislative list relating to the implementing of treaties and agreements with other countries, have power to make any law for any Province except with the previous consents of the Governor'" (page 27).
That explains why Article 253 was drafted in the terms in which we find it today – fears of a repeat of the Canadian case. It was construed by the Supreme Court in the Rann of Kutch case ( Maganbhai Patel vs. Union of India (1970) 3 SCC 400; AIR 1969 S.C. 783). In his concurring judgment, Justice J.C. Shah said: "The effect of Article 253 is that if a treaty, agreement or convention with a foreign state deals with a subject within the competence of the State Legislature, the Parliament alone has, notwithstanding Article 246(3), the power to make laws to implement the treaty, agreement or convention or any decision made at any international conference, association or other body. In terms, the Article deals with legislative power: thereby power is conferred upon the Parliament which it may not otherwise possess. But it does not seek to circumscribe the extent of the power conferred by Article 73. If, in consequence of the exercise of executive power, rights of the citizens or others are restricted or infringed, or laws are modified, the exercise of power must be supported by legislation: where there is no such restriction, infringement of the right or modification of the laws, the Executive is competent to exercise the power."
Two later cases deserve note. One is S. Jagannath vs. Union of India & Ors. (1997) 2 SCC 87 at page 143. The court upheld the Environment (Protection) Act, 1986, enacted to implement decisions taken at the U.N.'s Conference on the Human Environment in 1972.
More to the point is Dada vs. State of Maharashtra (200) 8 SCC 437, in which the Narcotic Drugs and Psychotropic Substances Act, 1985, was upheld as a law which implemented the International Convention of Psychotropic Substances, 1971. The parties to the Convention resolved to provide, in addition to conviction and punishment for an offence, that the offender shall undertake measures such as treatment, education, aftercare, rehabilitation or social reintegration. It was agreed: "The parties shall endeavour to ensure that any discretionary legal powers under their domestic law relating to the prosecution of person for offences established in accordance with this Article are exercised to maximise the effectiveness of law-enforcement measures in respect of those offences and with due regard to the need to deter the commission of such offences. The parties shall ensure that their courts or other competent authorities bear in mind the serious nature of the offences… and the circumstances enumerated… when considering the eventuality of early release or parole of persons convicted of such offences."
The Supreme Court said: "A perusal of the agreement of the Convention to which India is named to be a party, clearly and unambiguously shows that the court's jurisdiction with respect to the offences relating to narcotic drugs and psychotropic substances was never intended to be ousted, taken away or curtailed. The declaration was made, subject to ' constitutional principles and the basic concepts of its legal system prevalent in the polity of a member party'. The international agreement emphasised that the courts of the member countries shall always bear in mind the serious nature of offences ought to be tackled by the declaration while considering the eventuality of the release or partly of persons convicted of such offences. There was no international agreement to put a blanket ban on the power of the court to amend the sentence awarded to a criminal under the Act, notwithstanding the constitutional principles and basic concepts of its legal system. It cannot be denied that judicial review in our country is the heart and soul of our constitutional scheme. The judiciary is constituted the ultimate interpreter of our Constitution and is assigned the delicate task of determining the extent and scope of the powers conferred on each branch of the government, meaning that action of any branch does not transgress its limits" (pages 452-453). Ergo, an implementing law which violates the Constitution would be void to the extent.
U.N. convention no bar
But, then, the U.N. Convention against Corruption itself respects the state parties' internal constitutional set-up. Article 5 on policies and practices says: "Each state party shall, in accordance with the fundamental principles of its legal systems, develop and implement" its policies.
So does Article 6, which reads thus:
"1. Each state party shall, in accordance with the fundamental principles of its legal system, ensure the existence of a body or bodies, as appropriate, that prevent corruption by such means as: (a) Implementing the policies referred to in Article 5 of this Convention and, where appropriate, overseeing and coordinating the implementation of those policies; (b) Increasing and disseminating knowledge about the prevention of corruption. 2.Each state party shall grant the body or bodies referred to in paragraph 1 of this Article the necessary independence, in accordance with the fundamental principles of its legal system, to enable the body or bodies to carry out its or their functions effectively and free from any undue influence. The necessary material resources and specialised staff, as well as the training that such staff may require to carry out their functions, should be provided. 3. Each state party shall inform the Secretary-General of the United Nations of the name and address of the authority or authorities that may assist other states parties in developing and implementing specific measures for the prevention of corruption."
Nothing in Article 6, or in the Convention as a whole, requires the Union to impose its own brand of Lokayukta on the States; and an inferior brand at that. However, the Union has every right to insist that every State must have a Lokayukta of its own institutional choice provided it abides by certain fundamentals on independence and the like.
Article 27 of the Vienna Convention on the Law of Treaties says: "A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty" that includes the Convention.
Article 323 D, which is sought to be inserted in the Constitution by Clause 2 of the Constitution (116th Amendment) Bill, 2011, will be unexceptionable if a minor amendment is made, namely, omission of reference to parliamentary legislation to establish the Lokayukta. Make it a constitutional obligation binding on the States and leave it to them to establish it. If they default, the courts are not powerless to require them to do their duty under the Constitution.
The proposed Article 323 D reads thus: "(1) There shall be a Lokayukta for every State. (2) The powers of superintendence and direction relating to holding a preliminary inquiry, causing an investigation to be made and prosecution of offences in respect of complaints made to the Lokayukta under any law for the prevention of corruption made by Parliament or the State legislature, as the case may be, shall vest in the Lokayukta.
(3) The Lokayukta shall be an autonomous and independent body with a Chairperson and such number of Members as Parliament or, as the case may be, the State legislature may by law determine.
(4) Subject to the provisions of any law made by Parliament or the State legislature, the appointment of the Chairperson and Members of the Lokayukta shall be made by the Governor.
(5) The conditions of service and tenure of the Chairperson and members of the Lokayukta shall be such as may be determined by Parliament by law or, as the case may be, the State legislature.
(6) Every person appointed to be Chairperson or member of the Lokayukta shall, before he enters upon his office, make and subscribe before the Governor or some person appointed in that behalf by him an oath or affirmation according to the form set out for the purpose in the Third Schedule.
(7) The Chairperson and members of Lokayukta shall not be eligible for further officer either under the Government of India or the Government of any State or any other office as Parliament or the State legislature may by law determine."
It is not too late for India's political class to make amends for its lapses in partisanship. Five steps are required – (1) Amend the Lokpal Bill on the lines of Indira Gandhi's Bill of 1968 or Karnataka's Act of 1985 to cover grievances of "maladministration" as distinct from corruption. Not seldom corruption is exposed when such grievances are looked into, as Justice S.P. Kotval told this writer; (2) Make the CBI autonomous; (3) Delete Section 197 of the Cr. P.C., Section 19 of the Prevention of Corruption Act and Section 6A of the DSPE Act, 1946 – the crippling sanctions provisions; (4) Make suitable changes in the Constitution Amendment Bill to allay the States' disquiet; and (5) Implement the Second Report of the National Police Commission on protecting the integrity of the police force in the States.
Tailpiece: The debate on Article 253 has missed a proviso to the Article which was added on May 14, 1954, by the Constitution (application to Jammu and Kashmir) Order 1954. To Article 253 it added this proviso which nobody talks about. It is too embarrassing for words. It says:
"Provided that after the commencement of the Constitution (application to Jammu and Kashmir) Order, 1954, no decision affecting the disposition of the State of Jammu and Kashmir shall be made by the Government of India without the consent of the government of that State."
The implication is clear. A "decision" on the "disposition" of Kashmir is yet to be made and that under an international agreement. Plebiscite is dead politically. Legally, the plea for it is not illegal. Legally, also, a "decision" is yet to be made on the future of Kashmir.