It is not necessary to amend the Constitution to confer on the states a consultative status on foreign affairs when their own interests are directly involved.
by A G Noorani
( March 20, 2017, Mumbai, Sri Lanka Guardian) Last month, the Punjab government asked the Government of India to negotiate with Pakistan to allow the transportation of exports through Pakistan’s land routes. It said this would also improve India’s trade with the Commonwealth of Nations. What is far more significant is that Punjab also wants the Centre to invite it to future trade meetings with Pakistan. The Centre conceded that this issue would be taken up when trade and economic cooperation are next discussed following a resumption of dialogue. Fortunately, Amarinder Singh has returned to power as the chief minister of Punjab. In his previous tenure, he gave ample evidence of a commitment to good relations with Pakistan. Not very long ago, the chief ministers of both Punjabs met to discuss matters of common interest.
Foreign affairs is a subject of the Union under India’s Constitution and, indeed, of all countries. But there has been a significant shift towards giving the states some voice on the conduct of foreign affairs, especially on matters that directly impinge on their interests and their people’s feelings.
But Article 253 of the Constitution enables the Centre to ride roughshod on the states’ rights when it implements not only a treaty but also a decision at an international conference. It states: “Notwithstanding anything in the foregoing provisions of this chapter (on Centre-state relations in the legislative sphere]), Parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body.” If the government concludes an international convention on, say, health, Parliament will have the power to make any law to implement it, despite the fact that the subject falls in the state list.
In the last nearly 70 years, the number of such international “bodies” has grown significantly. Article 253 will cover an international sports “body” too. But the political realities since have also altered radically. From 1990 to 2014, India’s Central government was propped up by regional parties. Political realities affected the play of Article 253 in another respect as well.
Even when Rajiv Gandhi commanded a massive majority in the Lok Sabha, his policy on Sri Lanka was hostage to the wishes of the Tamil Nadu government. It was the West Bengal’s chief minister Jyoti Basu’s trip to Dhaka that enabled India to settle the dispute on the sharing of the waters of the Ganga with Bangladesh. His stature ensured acceptance of the agreement in his own state while also persuading the leaders of Bangladesh to cooperate.
In June 1948, the Indian government offered the nizam of Hyderabad a draft “heads of agreement” on defence, foreign affairs and communications, which were reserved for the Indian government. Paragraph 7 added a qualification: “Hyderabad will, however, have freedom to establish trade agencies in order to build up commercial, fiscal, and economic relations with other countries; but these agencies will work under the general supervision of, and in the closest cooperation with the Government of India. Hyderabad will not have any political relations with any country.” If that was appropriate for Hyderabad in 1948, it is even more so for the states of India’s union in 2017.
It is not necessary to amend the Constitution to confer on the states a consultative status on foreign affairs when their own interests are directly involved. Procedures can be devised by the Centre in consultation with the states, and the document can be endorsed by a joint resolution of both Houses of Parliament. There is a precedent for this.
In the wake of the constitutional crisis that engulfed Australia when governor-general Sir John Kerr dismissed Prime Minister Gough Whitlam from office in 1976, a series of constitutional conventions were held on a wide range of subjects, including Canberra’s treaty-power. In May 1996, in a detailed statement to Parliament, then foreign minister Alexander Downer announced the government’s decision on parliamentary scrutiny of treaties and consultation with the states. Treaties will, as a rule, be tabled in Parliament “at least 15 sitting days before the government takes binding action”. Simultaneously, a “national interest analysis” would be tabled to set out reasons for ratifying the treaty. Two new bodies would be set up: a joint parliamentary committee on treaties and a “treaties council”, which had been rejected earlier.
An agreed parliamentary resolution can give the states greater say on foreign affairs when their interests are involved and also recognise the right of their chief ministers to engage with foreign governments, provided that the Centre is kept in the picture. They do that already, but the practice should be recognised.
The writer is an author and lawyer based in Mumbai. Here is regular columnist for the Dawn, a Islamabad based daily newspaper where this piece first appeared