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Consequently, instead of promoting constitutional aspirations, India is forced to make its legislations by referring to the aims and
objects of such legislations, the executive commitments made at WTO. One such illustration - there are many, such as the Patents
Amendment Act - can be made of the "Protection of Plant Varieties and Farmers' Rights Act, 2001". The preamble to this Act states:
"And Whereas, India, having ratified the Agreement on Trade Related Aspects of Intellectual Property Rights should, inter alia, make
provisions for giving effect to sub-paragraph (b) of Paragraph-3 of Article-27 in Part-II of the said Agreement relating to protection of
plant varieties".
In the Constitutions of many other countries, we provisions where the treaty becomes binding only after
it is cleared by the majority of People's Representatives in the Senate/Assembly/Parliament.
This Act of the Parliament clearly shows that the interests of our farmers and our agricultural biodiversity which is protected under the
Constitution (Articles-21, 48 and 48A) has been subjected to the provisions of TRIPS. If the Constitution is supreme then such
legislations cannot and should not survive, unless they answer the test of being in conformity with the constitution. It is the duty of
Parliament to tell people how such legislations can subserve common good, protect people's rights, farmer's rights, our agriculture, our
biodiversity, etc. Under the oft-repeated slogan of development, the people's rights given to them under the Constitution cannot be
defeated.
A comparison between India and the US
The treaty-making power under our Constitution has been given to the Executive under Article-73. Article 246(1) read with Entry 14 of
List-I Union List of the Seventh Schedule empowers Parliament to make laws with respect to "Entering into treaties and agreements with
foreign countries and implementation of treaties, agreements and conventions with foreign countries". Article-253 gives powers to
Parliament to make laws for the whole or any part of the country for implementing any treaty, agreement or convention. Article 253 has,
thus been given an overriding power. Empowered by Article-73, an Executive, without any debate in the Parliament or assent of the people
in any discernible way, can commit itself and surrender people's basic and fundamental rights and thus bind the country to enact
legislations, which go against the basic principles of our Constitution and aspirations of the people.
In contrast to this process, in the US Constitution, the President has been given power to make treaties by and with the advice and
consent of the Senate provided two-thirds of the Senators present concur (vide Article-2 (2). It may also be pointed out that US has made
it clear that none of the decisions of WTO, which are contrary to their law and Constitution, will be binding on the American people.
Section 102(a) of Uruguay Round Agreement Act reads as follows: "Section 102(a) ( a )Relationship of Agreements to United States
Law: (1) US Law to Prevail in Conflict : No provision of any of the Uruguay Round Agreements nor the application of any such provision to
any person or circumstance, that is inconsistent with any law of the United States shall have effect."
America has thus, fully protected its sovereignty and the rights of its people. Even in the Constitutions of other countries, namely, in
South Africa, Republic of Korea, the Philippines and so on, we find provisions similar to US where the treaty becomes binding only after
it is cleared by the majority of People's Representatives in the Senate/Assembly/Parliament, as the case may be.
Parliamentary ratification should take supremacy
Therefore the question which arises is whether the commitment made by our Executive without the people's support can bind us when we have
accepted the Constitutional supremacy. The answer, again in the opinion of Justice Iyer, is "No". He says in the same book, Off the
Bench: "Democracy, by participation of the people directly or through their surrogates, is a basic feature of the Constitution. So,
it follows that a treaty which has neither the sanction of a referendum or ratification by Parliament (Senate ratification is vital for a
treaty in US.) is non-est. If the Bommai case is good law the TRIPS treaty is perilously near invalidity."
States' jurisdiction versus the Centre
Furthermore, legislation pursuant to the treaty obligations, can totally deny the participation of States in such legislative process
when the subject matter (for example, agriculture or fisheries) squarely falls within List-II, the States List. Taking note of this
serious lacuna affecting the federal character of the Constitution and powers of the State to legislate within the domain of List-II, the
National Commission to Review the Working of the Constitution in its report recommended that in the decision making on important issues
involving the States, prior consultation should be done with the Inter-State Council before signing of the treaty. The Commission thus
endorsed the view of the Sarkaria Commission on Centre-State Relations. In fact, if the federal nature of our Constitution is a basic
feature, all the legislations which take away the rights of the States suffer from a basic infirmity.
The solution, however, does not lie in discussions with the Inter-State Council but in taking away the power to sign or ratify any treaty
from hands of the Executive.
It is only after the Executive is empowempowered by Parliament through majority that such treaties should be
signed or ratified.
There is yet another aspect which needs to be addressed. In various judgments, the Supreme Court has been relying on the
Treaties/Conventions, for example, those pertaining to human rights and environment, which elucidate and effectuate the people's
fundamental rights, in particular, Article-21 of the Constitution. Many of these Conventions/Treaties have been incorporated as part of
Article-21 of the Constitution. As far as the environmental principles forming part of various Declarations/Conventions are concerned,
they are accepted as part of the customary international law and thus incorporated in the domestic law and followed by the courts in the
absence of anything contrary in the municipal laws (vide Vellore Citizens Welfare Forum v. Union of India & Others, 1996 (5) SCC
647; PUCL vs. Union of India, 1997(3) SCC 433; RFSTE v. Union of India, 2003 (9) SCALE 303). In this case, the safeguard is
that the Constitution's supremacy has been upheld and nothing which is in derogation to the Constitutional mandate has been accepted.
It is only after the Executive is empowempowered by Parliament through majority that such treaties should be signed or ratified.
If the executive action of signing GATT/TRIPS and consecutive compulsive legislations are tested on the constitutional anvil, they will
fail the basic judicial scrutiny. Are we thus left with the only option to challenge all the legislations - which are gradually taking
away people's rights under the cover of development and so-called international commitments - before the Courts, and that too under their
limited powers of judicial review and at times facing the argument of policy decisions where the Courts also raise their hands? Is this
scenario not unhealthy for a sovereign, democratic republic like India? The only hope lies in amendment to the Constitution.
Sanjay Parikh
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