Answer By law4u team
The process of entering into an extradition treaty involves both executive action and legislative oversight in India. While the executive, primarily the Ministry of External Affairs (MEA), negotiates and signs treaties, the Parliament plays a key role in reviewing and, in some cases, approving these agreements. The Indian Constitution provides for a clear division of powers in treaty-making, where the executive handles the negotiations, but Parliament has a crucial role, especially in ratifying treaties that require domestic legal changes.
Role of Parliament in Extradition Treaty Ratification
1. Executive's Power to Negotiate and Sign Treaties
Article 73 of the Indian Constitution grants the executive the power to negotiate and sign international treaties and agreements, including extradition treaties. This means that the Ministry of External Affairs (MEA) has the primary responsibility for drafting and negotiating these treaties.
However, the executive does not have the unrestricted power to implement treaties if those treaties require any change to domestic law. In such cases, Parliamentary approval becomes essential.
2. Parliamentary Role in Treaty Ratification
Parliamentary Approval is required for any domestic legislation that needs to be amended or introduced to give effect to the provisions of a new extradition treaty. For example, if a treaty necessitates modifying the Extradition Act, 1962, Parliament would need to pass the necessary amendments.
If the treaty involves provisions that are already covered under existing laws, Parliament may not need to actively vote on the treaty itself. However, it must be informed of the treaty, and Parliament can review its terms during debates or through committees.
3. The Legislative Process for Ratification
Cabinet Approval: Before a treaty is finalized, the draft agreement is typically approved by the Cabinet, which is a collective decision-making body of the Union government.
Introduction in Parliament: Once the treaty is signed by the executive, if it necessitates a change in domestic law (e.g., provisions of the Extradition Act, 1962), a Bill would be introduced in Parliament to amend the law. Parliament then reviews and debates the Bill.
Parliamentary Scrutiny: Parliament's Foreign Affairs Committee or a relevant Parliamentary Committee may review the treaty, particularly if the treaty involves sensitive issues such as human rights or the protection of fundamental rights.
Ratification: The treaty is ratified after any necessary amendments to domestic law are made through Parliamentary approval. In the absence of a required amendment to domestic law, Parliament is typically notified, but it does not vote on the treaty itself.
4. Impact of Parliamentary Rejection or Modifications
While the executive can negotiate and sign a treaty, Parliament’s role is critical if the treaty affects domestic law. If Parliament rejects or amends the legislation that is required to implement the treaty, the extradition treaty cannot be enforced in India.
Modifications by Parliament can also occur if there is a need to adjust provisions to ensure compliance with India's constitutional framework, such as ensuring protections against torture, death penalties, or unfair trials.
Parliament’s power thus acts as a check to ensure that international commitments, such as extradition agreements, align with India’s legal, constitutional, and human rights obligations.
5. Treaties Without Legislative Changes
If an extradition treaty does not require any changes to domestic law or if existing laws are sufficient to implement the treaty (as may be the case with treaties that involve minimal changes), Parliament is merely informed of the treaty, and no formal vote is required.
However, Parliament can still question or debate the treaty terms during question hours or through special sessions where the executive is required to explain the details of such treaties.
Example: The India-U.S. Extradition Treaty (1997)
The India-U.S. Extradition Treaty signed in 1997 provides a clear example of how Parliament plays a role:
- Negotiation and Signing: The Indian government, through the Ministry of External Affairs, negotiated and signed the treaty with the U.S.
- Parliamentary Approval: Since the treaty involved provisions under the Extradition Act, 1962, Parliament had to approve the necessary legal framework and amendments to accommodate the provisions of the treaty.
- Ratification: The treaty was eventually ratified by Parliament after discussions and the necessary amendments were made to domestic law.
- Implementation: Following ratification, India could execute extradition requests in accordance with the treaty.
Conclusion
In India, while the executive has the authority to negotiate and sign extradition treaties, Parliament plays a significant role in ratifying these treaties, especially when they require changes to domestic law. The process involves both executive action in treaty negotiation and legislative oversight through parliamentary approval and amendments to domestic law. Parliament's approval ensures that extradition treaties comply with India's constitutional framework, international obligations, and human rights standards, thereby balancing the powers between the executive and the legislative branches.
