India needs parliamentary supervision of trade pacts

Context: India is negotiating and signing several free trade agreements (FTAs) with countries like Australia, the UK, Israel, and the EU. While the economic benefits of these FTAs have been studied, there is very little discussion on the lack of parliamentary scrutiny of these treaties.

This gives rise to arguments of democratic deficit in India’s treaty-making process.

Concerns over the lack of parliamentary oversight were also flagged by the National Commission to Review the Working of the Constitution, set up by the Vajpayee government more than two decades ago.

So, should Parliament exercise some control over the executive’s power to sign international treaties?

Can Parliament legislate on international treaties?

Yes.

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”.

According to Article 246, Parliament has the legislative competence on all matters given in the Union list.

Thus, Parliament has the power to legislate on treaties.

This power includes:

deciding how India will ratify treaties and thus assume international law obligations.

Parliament’s competence to give effect to treaties within the domestic legal regime by enacting laws.

Article 253 elucidates that the power of Parliament to implement treaties by enacting domestic laws also extends to topics that are part of the state list.

What is the present situation wrt parliamentary oversight of international treaties?

Presently, the Parliament exercises control over the executive’s treaty-making power at the stage of transforming a treaty into the domestic legal regime. However, this is a scenario of ex-post parliamentary control over the executive.

In such a situation, Parliament only deliberates how the international law obligations, already accepted by the executive, should be implemented domestically. Even if Parliament does not amend or make domestic laws to transform the treaty, the treaty will continue to be binding on India.

No specific law laying down the processes: Parliament is yet to enact a law laying down the processes that India needs to follow before assuming international treaty obligations.

Given this legislative void, and under Article 73 (the powers of the Union executive are co-terminus with Parliament), the Centre has been negotiating, signing & also ratifying international treaties and assuming international law obligations without much parliamentary oversight.

What is the global best practice?

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. In this way, the Australian 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

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.

Source: This post is based on the article “India needs parliamentary supervision of trade pacts” published in The Indian Express on 24th May 22.

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