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.

Provisions in the Constitution

• 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.
• 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.

Lack of parliamentary oversight and its implications

• No law laying down the process: 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.
• Given this legislative void, and under Article 73(the powers of the Union executive are co-terminus with Parliament), the Centre has been not just negotiating and signing but also ratifying international treaties and assuming international law obligations without much parliamentary oversight.
• Arguably, 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 does not debate whether India should or should not accept the international obligations; it only deliberates how the international law obligations, already accepted by the executive, should be implemented domestically.
• Against the practice in other liberal democracies: This practice is at variance with that of several other liberal democracies.
• 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.

Way forward

• Indian democracy needs to inculcate these healthy practices of other liberal democracies.

Conclusion

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.

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