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Will the triumph turn into a tragedy?

The current political crisis over the India-United States nuclear deal has brought to the fore the issue of parliamentary control over the government’s treaty making power under the Constitution. After India agreed to the World Trade Organisation framework and particularly after the Trade Related Intellectual Property Rights accord there was a brief debate on whether major international agreements affecting the lives of the people should be required to come up before parliament for debate and ratification. The National Commission to Review the Working of the Constitution had before it a proposal for parliamentary ratification of important international treaties and agreements but it did not recommend such a course. Instead, its final recommendation was that “Parliament may consider enacting suitable legislation to control and regulate the treaty-power of the Union Government whenever appropriate and necessary after consulting the State Governments and Legislatures under Article 253 for giving effect to international agreements.”

As in Britain, under the Indian Constitution too treaty making is the domain of the executive and there is no requirement for parliamentary ratification. This is unlike the position in the United States where the President is empowered “by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators present concur”. Ratification of treaties was required under the presidential form of government marked by a separation of executive and legislative powers as otherwise there would be no check on executive power in a vital area. Among the treaties that the American Senate refused to ratify were the Treaty of Versailles that brought the League of Nations into being and the Comprehensive Test Ban Treaty. Once ratified though, a treaty in the United States would be self-executing without the need for a separate legislation. Under the Indian constitutional scheme, if a treaty requires new laws or changes in existing laws, parliament would have to enact the necessary legislation which would amount to implied ratification. There are, however, a large number of treaties and multilateral agreements where follow up legislation is not required and the executive can implement them without reference to parliament.

The rationale behind vesting such power in the hands of the government is that under the parliamentary system the executive is responsible to parliament which can vote it out at any time if it considered its actions, including any treaty entered into, objectionable. It is this constitutional logic — that a government can enter into a major agreement against the will of the majority in parliament only at its peril — that is now working its way through. Between endorsement through legislative action and total disapproval through voting a government out, there could be a third course. Parliament may not be willing to provide a positive endorsement and the majority may even be opposed to a treaty, but its objections may not be so strong as to prompt it to pull the government down. It is in this state of reluctant acceptance under protest that the United Progressive Alliance government probably expected the Left’s stand on the nuclear deal to fall, but that was not to be.

It is not unusual for a government to stake its all on a single issue that it considers central to its policy, but whether the UPA along with the Left would let a foreign policy triumph turn into a tragedy for the government itself still remains unclear. In the opposition, the Bharatiya Janata Party-led National Democratic Alliance can be expected to oppose the deal and push it to a vote of no confidence. The CPI (M) in speaking first of “serious consequences for the government and the country” and subsequently announcing that its support is “contingent upon the government not proceeding further with the deal” has made it clear that it considers its differences with the government serious enough to withdraw support.

While a consequentialist analysis would lead to the conclusion that a deal strongly opposed by the majority in parliament is not tenable, one needs also to look at the various stages of the negotiations process and the persisting differences over the substantive issues that led to the present impasse. When Prime Minister Manmohan Singh and United States President George Bush announced the deal in a joint statement in Washington on July 18, 2005, it was regarded as a breakthrough. The agreement with the U.S. would make it possible for India to break out of the nuclear technology denial regime and get equipment, technology and fuel also from countries such as Russia, France, the United Kingdom and Australia, shore up long term energy security and in the process transform its relationship with the United States from one of sanctions and hostile rhetoric to a strategic partnership.

The announcement in Washington was followed by the Prime Minister’s statement in Parliament on July 29, 2005, which offered assurances on full nuclear cooperation, equal rights and obligations with nuclear powers and protection of the strategic nuclear programme that seemed to go beyond even the joint statement. Understandably, there was some scepticism on whether he would be able to deliver on all his promises. Through the talks and the negotiations, the concern was over the U.S. attempt to shift the goal posts on the consequences of testing and on reprocessing, and through new demands that India not go ahead with the proposed Iran-Pakistan-India gas pipeline. Then during President Bush’s visit to New Delhi in March 2006 came crucial assurances on continued fuel supplies, support for building a strategic nuclear fuel reserve and the offer to join in Indian efforts to get fuel from friendly countries in the event of a disruption of supplies.

The passage of the Hyde Act by the lame duck Congress came as somewhat of a surprise but while the killer amendments that would have made the deal unacceptable were removed, some irritants such as the requirement of aligning U.S. and Nuclear Suppliers Group guidelines still remained. These were sought to be toned down by Mr. Bush in his signing statement to the effect that he was not bound to take such directions on the conduct of foreign policy that was his constitutional domain. The hardest part yet was still to come — negotiating and agreeing upon the text of the nuclear supply agreement under Section 123 of the United States’ Atomic Energy Act. With some creative wording and with the flexibility shown by the Bush administration, a text finally emerged and the Government held it up triumphantly as meeting all the concerns expressed by political parties and scientists in India. At least three critical steps remain: approval of the agreement by the U.S. Congress, the conclusion of an India-specific safeguards agreement with the IAEA and changes in the NSG guidelines to allow nuclear supplies to India.

While it has been a hard climb so far, differences over two crucial areas have remained between the UPA and parties at different ends of the ideological spectrum. First, the BJP stuck to its position that the deal would deter any further testing and compromise India’s strategic options. While there can be no explicit bar on testing, any test under the current circumstances will entail substantial costs, as the BJP knows only too well — it spent much of its time in office trying to get over the consequences of Pokhran II of 1998. While one cannot realistically expect the U.S. not to react after another test, the deal seeks to contain the consequences of stoppage of supplies through U.S. support for building a strategic fuel reserve, the promise to consider the circumstances that prompted a test and joint approaches to countries such as Russia, France and the United Kingdom for alternative supplies.

While such assurances have failed to satisfy the BJP that has taken the national security high ground, the Left parties continue with their opposition for fear that it will draw India firmly into the American orbit and have also raised specific objections to parts of the Hyde Act. For instance, one provision would make nuclear cooperation conditional on support for U.S. efforts to contain Iran’s nuclear programme. Here, the U.S. Administration in its statement of administration policy when the Act came into force makes it clear that it would “oppose any amendment conditioning cooperation with India upon India’s policies toward Iran, which would be beyond the scope of our July 2005 commitments,” and it could be held to its own interpretation if any dispute were to arise later. Fears over loss of autonomy in foreign relations could be countered only by the Government’s assertions that it will maintain its independent foreign policy, but the Left remains sceptical ever since the vote against Iran in the IAEA during the run up to the nuclear deal. It is also unclear what explanations and assurances can convince the Left to let the Government go ahead.

Given that under the present constitutional scheme there is no way for parliamentary disapproval of a treaty to be expressed short of voting the government out, the question arises if the nuclear deal is so important for the UPA as to stake its very survival on its quick completion. Another way of looking at it could be this: of what use is the kind of parliamentary support that does not allow a government to move ahead with what it considers its greatest foreign policy achievement. Beyond dares, challenges and threats of withdrawal of support, hard headed assessments of electoral prospects at the present time are also bound to play a role in the denouement.

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