NEW DELHI: Is the Executive’s treaty-making power outside the purview of the Constitution? Can the judiciary scrutinise whether entering into a treaty and its implementation violated the basic structure of the Constitution? These tricky questions, which had gained currency during the controversy over the provisions of India-US nuclear deal, came to be answered by the Supreme Court on Monday, albeit in another matter relating to the multilateral WTO agreements signed by India. A petitioner, advocate Shiva Kant Jha, complained before a Bench comprising Chief Justice S H Kapadia and Justice K S Radhakrishnan that the executive was going ahead and signing a large number of multilateral treaties to fulfil its WTO obligations and was refusing to adhere to constitutional provisions. When he argued that Delhi High Court had dismissed his petition on the ground that treaty-making power of the executive was not subject to the constitutional framework, the Bench said, “Who says it is not. If you show us that a certain provision was in breach of the Constitution, certainly the apex court can examine it. Such treaties which violate the basic structure of the Constitution will be struck down. This is already stated in the HC judgment.” It dismissed Jha’s appeal as he could not pin-point the agreement which violated the Constitution. Though the court did not entertain the petition, it surely showed a shift in approach in scrutinising the constitutional validity of the multilateral and bilateral agreements entered into by India.
In contrast, the apex court was not ready to entertain any of the four PILs filed during those days when there was a huge controversy over the India-US nuclear agreement. A Bench headed by then CJI K G Balakrishnan had dismissed the PILs challenging the nuclear deal. A PIL filed by Anil Chawla had alleged that the deal undermined India’s sovereignty as the Hyde Act of US would not permit India to go ahead with peaceful nuclear research work. “Can the executive sign an agreement with a foreign nation undermining the country’s sovereignty,” he had asked seeking a direction to place it before Parliament. The Bench had said, “The matter is for the PM and Speaker to consider whether it should be placed before Parliament or not. The decision to enter into an agreement has been taken by the executive, which is answerable to Parliament. Where does the Supreme Court figure in the scheme of things.” Dismissing another PIL filed by M N Ramamurthy, the SC had said, “It is the prerogative of Parliament to consider the matter. Let Parliament decide. India signs a host of bilateral and multilateral treaties. Some like TRIPPS agreement affected the prices of medicines. But the court cannot look into these. If something affects the country, Parliament is the body to look into it.”