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Chapter 3.4.5: Is IAEA Safeguard Agreement Unconstitutional?

(August 2008)

The Agreement

The termination clause of IAEA Safeguard Agreement is a bone of contention. As per Mr. Anil Kakodkar, the perpetuity of the safeguards is linked to the perpetuity of the fuel supplies, and this holds for the indigenous facilities as well. This is based on the interpretation of the IAEA Agreement. However, as per the other interpretation, based on paragraph 15 (c) of the Separation Plan dated 2nd March, 2006 (reproduced below), India is bound in perpetuity to the Agreement and can’t terminate it.

An India-specific safeguards agreement will be negotiated between India and the IAEA providing for safeguards to guard against withdrawal of safeguarded nuclear material from civilian use at any time as well as providing for corrective measures that India may take to ensure uninterrupted operation of its civilian nuclear reactors in the event of disruption of foreign fuel supplies. Taking this into account, India will place its civilian nuclear facilities under India-specific safeguards in perpetuity and negotiate an appropriate safeguards agreement to this end with the IAEA.

As per Para 105 of the Plan, in the case of a dispute, “India shall have right to request that any question arising out of the interpretation or application of the agreement be considered by the IAEA Board”, which means that the final decision will be that of the IAEA Board, and the Board may well uphold the second interpretation. In such a scenario, India shall be legally bound to accept the authority of the IAEA over its own authority sans any judicial recourse, which, in other words, is the loss of sovereignty.

The Constitution

As per article 73 of the Indian Constitution, the executive power of the Union extends “to the matters with respect to which Parliament has power to make laws.” As per article 246, “Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule”, i.e. with respect to the Union List. Entry 13 of the Union List provides for “participation in international conferences, associations and other bodies and implementing of decisions made thereat.” Entry 14 provides for “entering into treaties and agreements with foreign countries and implementing of treaties, agreements and conventions with foreign countries.”

Thus, the Executive derives its treaty making powers from the above mentioned provisions. It is well settled that, under the present scheme of the Indian Constitution, the Executive can enter into treaties without any parliamentary approval/ratification. However, the law making powers and thus the executive powers are subject to constitutional safeguards like the Fundamental Rights and the Basic Structure. Isn’t the loss of sovereignty with respect to the indigenous facilities, discussed above, against the basic structure doctrine! As per the preamble to the Constitution, India is a sovereign state, and, in Indira Gandhi v. Raj Narayan (Re: Indira Gandhi v. Raj Narayan, [1976] 2 SCR 347; download the judgment from http://indiankanoon.org/doc/936707/), Justice Y. V. Chandrachud listed four non-amendable basic features of the Constitution:

- Sovereign Democratic Republic status

- Equality of Status and Opportunity of an individual

- Secularism and Freedom of Conscience and Religion

- “Government of laws, not of men”, i.e. the Rule of Law

No law or executive action can compromise the sovereignty of the country; therefore, the IAEA Safeguard Agreement is anti-sovereignty and thus unconstitutional. The IAEA Safeguard Agreement needs to be challenged in the Supreme Court of India. © 2008-2015 Ankur Mutreja