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Need for Parliamentary Oversight on Treaty Making Process of India

  • Category
    Polity & Governance
  • Published
    30th May, 2022

Context

  • Treaty making practise followed in India were Parliamentary supervision is lacking has been a cause of concern.

Background

  • India is negotiating and signing several free trade agreements (FTAs) which are economically important for India and it economic growth.
  • But the lack of discussions in the Parliament or its committees on these treaties has caused the reason to question the democratic deficit in India’s treaty making process.
  • A greater say of Parliament in treaty negotiations and their signing is therefore something that is desirable according to some experts.

Constitutional Provisions with respect to India’s treaty negotiations:

  • In the Constitution, entry 14 of the Union list contains the following item — “entering into treaties and agreements with foreign countries and implementing of treaties, agreements and conventions with foreign countries”.
  • Article 246 of the Indian Constitution states that Parliament has the legislative competence on all matters given in the Union list.
  • This therefore gives the Parliament power to legislate on treaties.
  • The abovementioned power includes deciding on how India will ratify treaties and thus assume international law obligations.
  • It also includes Parliament’s competence to give effect to treaties within the domestic legal regime by enacting laws.
  • Article 253 provides power to the Parliament to implement treaties by enacting domestic laws that relate to topics which are part of the state list.

What is the process of treaty making in India?

  • It is pertinent to note that while Parliament in the last seven decades has passed many laws to implement international legal obligations imposed by different treaties, it is yet to enact a law laying down the processes that India needs to follow before assuming international treaty obligations.
  • This legislative void has led to the Centre not just negotiating and signing but also ratifying international treaties and assuming international law obligations without the parliamentary supervision.
  • Parliament though has been seen to exercises control over the executive’s treaty-making power at the stage of transforming a treaty into the domestic legal regime.
  • But this leads to a scenario of ex-post parliamentary control over the executive.
  • Parliament that this stage does not debate whether India should or should not accept the international obligations; it only deliberates on how the international law obligations, already accepted by the executive, should be implemented domestically.
  • And even if the Parliament does not amend or make domestic laws to transform the treaty, it will continue to be bind India.
  • This lack of parliamentary oversight has been flagged by the National Commission to Review the Working of the Constitution.
  • But the course of India’s treaty-making process has not changed.

What role legislature plays in treaty-making in other liberal democracies?

  • When compared to other liberal democracies, the practise in India seems to be at variance.
  • In the US, important treaties signed by the President have to be approved by the Senate.
  • In Australia, the executive is required to table a “national interest analysis” of the treaty it wishes to sign in parliament, and then this is examined by a joint standing committee on treaties – a body composed of Australian parliamentarians.
  • Also in Australian, the Parliament supervises the treaty-making process and acts as a check on the executive’s power.
  • In Canada, too, the executive tables the treaties in parliament.

Way Forward:

  • Indian democracy needs to inculcate these healthy practices.
  • Effective parliamentary supervision will increase the domestic acceptance and legitimacy of international treaties, especially economic agreements, which are often critiqued for imposing undue restraints on India’s economic sovereignty.

Q1. Do you think the lack of Parliamentary control over the executive’s power to sign international treatieserodes the constitutional mandate of parliamentary oversight over executive action? Give reasons for your answer.

Q2. Briefly explain the current mechanism of signing and rectifying international treaties in India.Also, discuss the potential benefits of augmenting Parliament’s role in the treaty-making process?

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