Mumbai, Sep 12 (UNI) Three former judges, two of the Supreme Court and one of the Bombay High Court, have questioned the very basis of the Indo-US civil nuclear deal from the perspective of the Indian Constitution.
Former Apex court judges V R Krishna Iyer and P B Sawant and judge Hosbet Suresh of the Bombay High Court, in a joint statement, quoted the Constitution, stating ''The Executive has no power to enter into any agreement, either with a foreign government or a foreign organisation, which is binding on the nation. The agreement will be binding only when it is ratified by Parliament.'' ''There is no provision in the Constitution which gives such authority to the Executive. We have a written Constitution and, therefore, we must have a written provision in the Constitution, which gives such authority to the Executive,'' they said in their statement.
Referring to the powers of the Executive, the statement said Article 73, among other things, states ''The executive power of the Union shall extend (a) to the matters with respect to which Parliament has powers to make laws, and (b) to the exercise of such rights, authority and jurisdiction as are exerciseable by the Government of India by virtue of any treaty or agreement.'' The statement further said the matters on which Parliament had no powers to make laws were also matters on which the Union Government cannot exercise its executive power. It also means, conversely, that the Union Government cannot exercise its executive powers beyond the legislative powers of the Union.
Both these propositions have an underlying assumption that before the Government exercises its executive power, there is a law enacted by Parliament on the subject concerned.
Some argue that the provisions of Article 73(1)(a) gives power to the Executive to act on subjects within the jurisdiction of Parliament, even if it does not make a law on those subjects. This is both a distortion and a perversion of the said provision and a subversion of Parliament's supreme control over the Executive.
If this interpretation is accepted, then the Union Executive can act on all subjects on which Parliament has to make law, without there being any law made by it. ''You can thus do away with Parliament and it's duties to make laws,'' said the statement.
It is for this very reason that when Parliament is not in session and, therefore, unable to enact a law, that the power is given to the President to issue an ordinance (which is a law), so that the Executive may act according to its provisions.
These ordinances are to be placed before Parliament within six weeks of its reassembly and if it approves, they become law. The Constitution-makers were, therefore, clear in their mind that the Executive cannot act without the authority of law and it has no power independent of law made by Parliament, the statement observed.