Putting the executive in its place

B.P. Jeevan Reddy

The Hindu , March 6,2008

If the government ignores the will of Parliament and proceeds to finalise the Indo-U.S. nuclear deal, it would mean the executive is asserting its supremacy over Parliament – an unacceptable situation, constitutionally speaking.

A basic premise of the parliamentary system of government is the supremacy of Parliament. The executive — the political executive — is drawn from and is a part of Parliament. It is not independently elected.

While Parliament can override the executive will, the converse is not, and cannot be, true. India has adopted the parliamentary form of government both at the Centre and the States.

The Constitution is not exhaustive of the constitutional system prevailing in our country; conventions are a part of and constitute an essential component of the system. This is a proposition no student of constitutional law would dispute. In many respects, the Constitution is silent and the silences are filled by the conventions. Just as we have borrowed the parliamentary system of government from the United Kingdom, so have we borrowed its conventions too — with appropriate adaptations, of course.

By way of illustration, there is no provision in the Constitution requiring the President to invite the leader of the single largest party in the Lok Sabha to form a government. Article 75(1) merely says: “The Prime Minister shall be appointed by the President and the other Ministers shall be appointed by the President on the advice of the Prime Minister.”

Literally read, the President can as well invite the leader of the second largest party and give him or her sufficient time to cobble up a working majority by one or another means. It is the convention that obligates the President to invite the leader of the single largest party or the single largest pre-election formation to form a government and no President will dare to violate this convention.

Another instance: Prior to amendment of clause (1) of Article 74 by the Constitution (Forty Second) Amendment Act, the Constitution did not say in so many words that the President is bound to act in accordance with the advice tendered to him by the Council of Ministers with the Prime Minister at its head. Literally read, the clause enables the President to ignore such advice and act in his discretion. But soon after the commencement of the Constitution, when a doubt was raised on this point, it was made clear to the President by the highest legal functionary of the state — which he gracefully accepted — that since India has adopted the British parliamentary system and conventions, the President is bound by, and is bound to act in accordance with, such advice. There was never any departure from this convention. Of course, the 42nd Constitutional Amendment Act, 1976 expressly incorporated this convention in the Constitution. Even without this amendment, it is clear, the position would be the same. The decisions of the Supreme Court in 1955 (Ram Jawaya Kapur) and 1974 (Shamsher Singh) make it clear that we have borrowed the British parliamentary system, with all that goes with it.
Negation of concept

On the Indo-U.S. nuclear deal, a substantial majority of Parliament has made its position clear: it is opposed to the deal in the present form, particularly because of the governing provisions of the Hyde Act passed by U.S. Congress. The question is not whether the majority is right — or whether the government is not right. The political executive cannot sit in judgment over the wisdom, or the motives, of the majority in Parliament; it has to abide by it. Otherwise, it would be a clear negation of the very concept of parliamentary form of government.

If the executive (the Government of India) ignores the will of Parliament and proceeds to finalise the deal, it would mean the executive is asserting its supremacy over Parliament — an unacceptable situation, constitutionally speaking. On the other hand, every action of the executive can be reviewed by Parliament; no act of the executive is immune from legislative oversight. To assert the contrary is to undermine the very concept of the accountability of the executive to Parliament [recognised in Article 75(3)] as also the concept of parliamentary supremacy over the executive. A situation should not be allowed to develop where the majority in Parliament is driven to pass a resolution disapproving the nuclear deal, which may compel the government to tender its resignation.

It is true that under our constitutional system — again following British practice — it is for the government of the day to enter into treaties with foreign powers and that there is no provision for approval or ratification of such treaties by Parliament or by either of its Houses. But under our Constitution, it is not an unquestionable right of the executive. It can be controlled and regulated by our Parliament by making a law as contemplated by Entry 14 of the Union List in the Seventh Schedule to the Constitution.

It is true that Parliament has not so far made any law with reference to this Entry laying down the parameters of and/or laying down the manner in which this power has to be exercised. Our Parliament has chosen not to act in the matter despite the experience of the Uruguay Round of GATT Treaties — in particular, the Agreement on TRIPS (Trade-Related Intellectual Property Rights) where the executive signed the agreement containing provisions directly contrary to the recommendations of a parliamentary committee of 40 members drawn from all parties.

But all this does not mean that when a substantial majority in both the Houses expresses itself unambiguously against this particular agreement signed by the government, the latter is entitled to ignore Parliament’s will and go ahead and finalise the deal — as it is made to appear from recent statements emanating from governmental circles. It is not really necessary to go into the question whether the agreement entered into between India and the U.S. on civilian nuclear cooperation amounts to a ‘treaty’ or whether it is a mere ‘agreement.’ Whether it is a treaty or a mere agreement, the action of the government entering into it is not — and cannot be — outside the purview of Parliament. It is also not a question of procedure, namely under which rule of the House Parliament expressed its intention. It is a matter of substance and of democratic ethos and political morality.
Wrong precedent

That Parliament has expressed its will in unambiguous terms is enough. If the Government of India yet proposes to proceed to finalise the 123 agreement, it would be a wrong, and an unhealthy, nay, an undemocratic, step and would amount to laying down a wrong precedent for the future governments to follow. The Preamble to our Constitution speaks of the resolve of the people of India to constitute India into a “Democratic Republic” among other requisites. It is Parliament that represents the will of the people — not the executive, which is only a part of Parliament. It is inconceivable that a part can defy the whole.

A passing thought: if the foreign policy of a country is meant to subserve the interests of that state — and not be an exercise in charity — one finds it amusing to see hordes of incumbent and former officials of the U.S. government descending on India to persuade, cajole, advise, and threaten us into finalising the djavascript:void(0)
Publish Posteal at the earliest.

(Justice B. P. Jeevan Reddy is a former Judge of the Supreme Court of India and a former Chairman of the Law Commission of India.)