Why Recent India‑Japan Agreements May Prompt Judicial Scrutiny of Executive Treaty‑Making Powers and Legislative Oversight

The recent visit of Japanese Prime Minister Sanae Takaichi to India, described as a significant advancement in India‑Japan relations, saw the two heads of government openly acknowledge a new chapter in bilateral engagement, underscored by mutual statements that the encounter represented an unprecedented deepening of strategic, economic and technological cooperation, thereby setting the stage for concrete collaborative initiatives across multiple high‑technology sectors. During the proceedings both leaders announced the forging of fresh agreements covering artificial intelligence, energy and defence domains, signalling an intention to institutionalise joint research, co‑development of cutting‑edge systems and coordinated policy frameworks that would bind respective ministries and agencies to a shared roadmap aimed at harnessing emerging technologies for national security and sustainable growth. Concurrently a comprehensive roadmap for economic security was adopted, explicitly targeting the reinforcement of supply chains for critical minerals and semiconductors, thereby committing both nations to collaborative measures that would mitigate vulnerabilities, diversify sources and establish mechanisms for joint investment, technology transfer and standards harmonisation in line with their broader strategic objectives. In addition, the dialogue placed considerable emphasis on enhancing bilateral trade through a systematic review of the existing Comprehensive Economic Partnership Agreement, with the parties affirming that such an undertaking would be guided by deep mutual trust and a shared vision of open, rules‑based commerce, while also recognizing the need to align the agreement with evolving geopolitical realities and domestic economic priorities.

One question is whether the executive’s unilateral commitment to new AI, energy and defence agreements with Japan conforms to the constitutional allocation of treaty‑making power, given that Article 73 of the Constitution vests legislative authority over matters affecting external affairs while Article 74 requires the President to act on the advice of the Council of Ministers, thereby raising the possibility that parliamentary ratification may be indispensable for legally binding accords. The answer may depend on judicial interpretation of the distinction between political agreements that merely express intent and those that create enforceable rights or obligations, a line that the Supreme Court has historically drawn in cases such as the S.R. Bommai judgment, suggesting that any instrument that alters the legal position of the State or its citizens could invite scrutiny for compliance with the constitutional framework.

Perhaps the more important legal issue is the statutory process required to amend or reinterpret the Comprehensive Economic Partnership Agreement, since any substantive modification to tariff schedules, investment protections or dispute‑settlement mechanisms ordinarily demands amendment of the underlying legislation enacted by Parliament, and failure to observe such procedural prerequisites could render the review process vulnerable to challenge on grounds of procedural illegality. A fuller legal assessment would require clarity on whether the ministries have obtained the necessary approvals under the Foreign Exchange Management Act and the Export‑Import Policy to implement the proposed changes, because these statutes impose transparent procedural safeguards intended to prevent circumvention of regulatory controls and to safeguard public interest in strategic sectors.

Perhaps the regulatory implication lies in the need to align the supply‑chain roadmap for critical minerals and semiconductors with existing statutory regimes governing mineral extraction, export licensing and strategic goods, notably the Mineral Conservation and Development Act and the Strategic Goods (Export Control) Order, which together prescribe procedural steps, licensing requirements and compliance reporting that any bilateral arrangement must respect to avoid illegality. Another possible view is that joint investment projects under the roadmap may trigger the provisions of the Companies Act and the Foreign Contribution (Regulation) Act, thereby obligating participating entities to seek prior approvals, disclose foreign direct investment percentages and adhere to reporting standards, an oversight mechanism that could be invoked by the Ministry of Corporate Affairs or the Ministry of Home Affairs if statutory thresholds are exceeded.

Perhaps the constitutional concern is whether affected stakeholders, including domestic industries and civil society groups, might possess locus standi to challenge the agreements on grounds that they infringe upon the right to equality or the right to livelihood as enshrined in Articles 14 and 21 of the Constitution, especially if the accords produce asymmetrical benefits that disadvantage Indian producers in the AI and energy sectors. The legal position would turn on whether the courts deem the executive actions to be amenable to public‑interest litigation, a determination that historically hinges on the presence of a specific legal right being affected, the existence of a concrete grievance and the adequacy of alternative remedies, factors that would shape any prospective petition seeking judicial scrutiny of the negotiated accords.

If later facts show that the agreements have been operationalised without the formal ratification procedures envisaged by the Constitution and relevant statutes, the procedural consequence may be that the agreements could be declared ultra vires the executive, compelling the government to seek retrospective legislative endorsement or to renegotiate the terms within the bounds of statutory authority. A safer legal view would therefore advise that the ministries secure explicit parliamentary approval, ensure compliance with foreign exchange and export‑control regulations, and subject the CEPA review to transparent legislative debate, steps that would not only fortify the legal validity of the bilateral commitments but also preempt potential challenges based on procedural unfairness or constitutional overreach.