Sarvjeet Kumar vs Union Of India (Uoi)
2007 Latest Caselaw 1586 Del

JUDGMENT

Mukundakam Sharma, C.J.

1. This writ petition is filed by the petitioner in this Court as a Public Interest Litigation. When the matter was listed yesterday and since the issues raised pertain to an important question of law, applicability of the provisions of Article 143 of the Constitution of India, we desired that the Central Government should be represented by the Additional Solicitor General. We had also requested Mr. Jagmohan Sabharwal, Senior Advocate, who was present in court, to assist us in this matter as amices curiae. Consequent to the orders passed yesterday, both the Additional Solicitor General and Mr. Jagmohan Sabharwal, Sr. Advocate are present in court today and have addressed us.

2. In this writ petition the petitioner seeks a direction to the Union of India to approach the President of India under Article 143 of the Constitution of India to refer "questions of law and fact" arising out of the agreement being signed between India and the United States of America, commonly known as the proposed "123" Agreement. It is stated by the petitioner in paragraph 5 of the writ petition that understanding is that India would negotiate details of the agreement but would not sign the same until the Nuclear Suppliers Group grants its exemption and after formalities are completed.

3. It transpires that a "deal" or understanding was announced between India and USA in the month of July, 2005. The said deal/understanding was "finalised" in Delhi some time in March 2006 when US President visited India. In July, 2006, US House of Representatives approved the deal/understanding. In November, 2006, United States Senate voted in favor of the deal / understanding. Thereafter several rounds of negotiations were held and a text of an agreement was finalised. On 3rd August, 2007, the text of 1-2-3 agreement was released. However, before the agreement is signed, it would be necessary for India to make separate agreements with the United Nations Nuclear Watchdog, the International Atomic Energy Agency and the Nuclear Suppliers Group, which is an assembly of nations that export nuclear material.

4. It is stated by the learned Additional Solicitor General before us that certain conditions are to be satisfied before the 123 agreement can be operationalised. Firstly, an agreement between India and the International Atomic Energy Agency, regarding safeguards of nuclear materials and secondly, India-specific trade guidelines have to be finalised by the Nuclear Suppliers Group, a 45-nation cartel which has restricted nuclear trade to NPT signatories since 1992. Lastly, "123" agreement with India on nuclear cooperation has to be concluded by the American Congress. This is because of the fact that Section 123 of the US Atomic Energy Act of 1954 requires an agreement for cooperation as a prerequisite for nuclear deals between the USA and any other nation. Therefore, it is established that the said agreement has to take a final shape and cannot be said that an international treaty 123 agreement stands signed.

5. Be that as it may, the moot question arises for our consideration is whether in the context of the said negotiations and as the text of "123" agreement stands released, could and should this Court assume the power and jurisdiction to itself of issuing a mandamus to the Union of India to make a reference to the President of India to exercise a power vested under the provisions of Article 143 of the Constitution of India.

6. Entry 14 of List I of VII Schedule of the Constitution of India provides that the Central Government can enter into treaties and agreements with foreign countries and can implement treaties, agreements and conventions with foreign countries. The aforesaid agreement would definitely fall within the meaning of "agreement with foreign country". Executive, under Article 73 of the Constitution can enter into international treaties. Domestic legislation in some cases is required under Article 253 of the Constitution of India. However, as of today, there is no legislation and, therefore, it is pure and simple policy decision of the Government, if there be any decision in that matter. Whether or not Court will exercise its jurisdiction to interfere with a policy decision is already settled position of law in the light of the various decisions of the Supreme Court. One of such decisions is BALCO Employees' Union (Regd.) v. Union of India and Ors. . it is not for this Court to examine and give its opinion on policy matters relating to external affairs and relationship between India and another country. In State of U.P. v. Johri Mal reported as , the Supreme Court observed as under:

25. In Council of Civil Service Unions v. Minister for the Civil Service (1984) 3 All ER 935 while extending the scope of judicial review the House of Lords decided that judicial review should not be available if the particular decision under challenge was not justiciable. However, in granting relief the Court shall take into consideration factors like national security issue. In Oliver, Dawn: Constitutional Reform in the UK , it is stated at p. 210:

In CCSU case the House of Lords decided that judicial review should not be available if the particular decision under challenge was not justiciable. In effect they respected the political constitution and deferred to Government in some sensitive areas. In this case the Government was alleging that for them to have consulted the Unions before the decision was taken would have provoked industrial action at GCHQ, which would in turn have been damaging to national security. In the view of the House of Lords this made an otherwise reviewable decision not suitable for judicial review - not justiciable. Other decisions taken under the royal prerogative, which the court indicated would be non-justiciable, included treaty-making and foreign affairs. Despite the outcome of CCSU that the prerogative is in principle reviewable and that were it not for the national security issue the Government should have consulted the Unions before imposing these changes was a major step forward in the judicialization of government action, including the actual conduct of the Government, and a step away from the political constitution.

26. However, we may notice that judicial review was held to be available when justiciability of foreign relations came to be considered in R. (Abbasi) v. Secy. of State for the Foreign and Commonwealth Office and Secy. of State for the Home Deptt. 2002 EWCA Civ 6-11-2002 stating:

Although the statutory context in which Adan was decided was highly material, the passage from Lord Cross' speech in Cattermole supports the view that, albeit that caution must be exercised by this Court when faced with an allegation that a foreign State is in breach of its international obligations, this Court does not need the statutory context in order to be free to express a view in relation to what it conceives to be a clear breach of its international obligations, this Court does not need the statutory context in order to be free to express a view in relation to what it conceives to be a clear breach of international law, particularly in the context of human rights.

7. However, without entering further into this, we may dispose of this writ petition on another ground i.e. mandamus to the Union of India for making a request to the President to exercise her discretion as vested under Article 143 of the Constitution of India.

8. Article 143 of the Constitution of India provides that If at any time it appears to the President that a question of law or fact has arisen, or is likely to arise, which is of such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court upon it, he may refer the question to that Court for consideration and the Court may, after such hearing as it thinks fit, report to the President its opinion thereon.

9. In this connection, we may refer to the decision of the Supreme Court in In Re. The Special Courts Bill, 1978 reported as The said judgment is a Constitution Bench judgment. In paragraph 20 of the said judgment, the Supreme Court has held that satisfaction as to whether the question has arisen or is likely to arise and whether it is of such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court upon it, is a matter essentially for the President to decide. We may also refer to the decision of the Supreme Court in In re The Kerala Education Bill, 1957 reported as AIR 1958 SC 956. In paragraph 4 of the said judgment, the Supreme Court has held as follows:

4. The present reference is the second of its kind under Art. 143(1) of the Constitution, the first one being one concerned with the In Re Art. 143, Constitution of India and Delhi Laws Act, (1912) etc. 1951 SCR 747 : AIR 1951 SC 332(F). The nature and scope of the reference under Art. 143(1) was not discussed in the In Re Delhi Laws Act case (F) (supra), but, we conceive, that the principles laid down by the Judicial Committee and the Federal Court quoted above will serve as a valuable guide indicating the line of approach to be adopted by this Court in dealing with and disposing of the reference now before us. The principles established by judicial decisions clearly indicate that the complaint that the questions referred to us relate to the validity, not of a statute brought into force but, of a Bill which has yet to be passed into law by being accorded the assent of the President is not a good ground for not entertaining the reference for, as said by Spens, C.J., Articl 143(1) does contemplate the reference of a question of law that is "likely to arise". It is contended that several other constitutional objections also arise out of some of the provisions of the Bill considered in the light of other provisions of the Constitution e.g., Article 19(1)(g), and Art. 337 and that as those objections have not been included in the reference this Court should not entertain an incomplete reference, for answers given to the questions put may be misleading in the absence of answers to other questions that arise. In the first place it is for the President to determine what questions should be referred and if he does not entertain any serious doubt on the other provisions it is not for any party to say that doubts arise also out of them and we cannot go beyond the reference and discuss those problems. The circumstance that the President has not thought fit to refer other questions as to the constitutional validity of some of the clauses of the said Bill on the ground that they infringe other provisions of the Constitution cannot be a good or cogent reason for declining to entertain this reference and answer the questions touching matters over or in respect of which the President does entertain some doubt.

10. It is, therefore, apparent that it is for the President to determine whether and what questions should be referred under Article 143 of the Constitution of India and if she does not entertain any serious doubt, it is not for any party to say that doubts of public importance arise. The Supreme Court has held that it cannot go beyond the reference and discuss questions which have not been referred. The circumstance that the President has not thought fit to refer questions as to the constitutional validity of some of the clauses of the said Bill on the ground that they infringe other provisions of the Constitution, cannot be a good or cogent reason for declining to entertain the reference and answer the questions touching matters over or in respect of which the President does entertain some doubt.

11. In Mansukhlal Vithaldas Chauhan v. State of Gujarat reported as , the Supreme Court had dealt with the matter regarding granting of sanction for prosecution. In the said decision, it was held by the Supreme Court that the sanctioning authority has to apply its own independent mind for genuine satisfaction whether prosecution has to be sanctioned or not and that the mind of the sanctioning authority should not be under pressure from any quarter nor should any external force be acting upon it to take a decision one way or the other. It was further held that since the discretion to grant or not to grant sanction vests absolutely in the sanctioning authority, its discretion should be shown to have not been affected by any extraneous consideration.

12. Considering the provisions of Article 143(1) of the Constitution of India and also keeping in mind the ratio of the aforesaid decisions of the Supreme Court, we are of the considered opinion that a mandamus as sought for by the petitioner cannot be issued in the instant case. In that view of the matter, we find no merit in this petition, which is dismissed.