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I have no option but to correct you; not as to the contents of your response but as to what is the point being made here.
I’d be a fool to suggest that the court could (under the present constitutional regime)get into the merits of an international treaty.
The point in question is not the 123 Agreement or any other, the point is about the anomaly that the lack of a ratification procedure for Parliament in matters of international treaties(and not a plebiscite) creates under the present constitutional framework. The anamoly is especially glaring in view of the option of challenge available under the head of ‘basic structure’ even to a constitutional amendment.
Btw, as to the point you have made, if you notice I have covered it in the last line of my post - “A challenge to the merits of any particular treaty though would have to be seen from the perspective of the principles of an ‘Act of State’”.
When we talk of constitution or amendments made or sought to be made thereto we got to bear in our minds that what we are talking here is a sphere of municipal or domestic law, which is separate from the sphere of international law - with the only link between the two being the constitution itself acting as something like a skybridge.
Hence the set of rules that apply in case of the sphere within a constitution cannot be applied to this scenario - hence using the analogy of challenge on similar lines of challenge to an amendment on the basis of violation of ‘basic structure’ is totally out of question!
Fact remains that SC cant do anything here.. not even yur favorite 142 can come to our rescue because.. when we talk about RATIFICATION.. yu got to know that unlike the US, in India its not just that ratification is an eye-wash.. in fact the government is not at all bound to get it ratified by Parliament in the first place!!!
Now as far as the makers of destiny in the LS are concerned.. as far as i know the fulcrum of the whole argument is going to be on and on of LS (Conduct of Business)Rules- That allow discussion on matters of urgent public importance - which for now is our only hope - to gather required momentum to pressure the government..
You are saying precisely what I have said while talking of judicial hand’s off in policy matters and the lack of an exspress dualistic system as under the American constitution in ours. Don’t know why you are trying to debate 
The point I am making is ONLY one. To quote Krishna Iyer J. :
“What is the impact of treaty-making power conferred by Article 253 of the Constitution of India and Entry 14 of List 1 of the Seventh Schedule on the federal structure and jural architecture of the nation? To whom does this power ultimately belong - to the executive or to Parliament or to a people’s referendum? If it is the power of the executive, is it subject to parliamentary control or supervision?”
A consultation paper (cited by Mr. Ramurti in the SC)published by the NCRWC observes :
The first thing that should be done by Parliament is to make a law on the subject of ‘entering into treaties and agreements with foreign countries’ as contemplated by Entry 14 of List 1 of the Seventh Schedule to the Constitution. The law should regulate the ‘treaty-making power’ (which expression shall, for the purpose of this discussion, include the power to enter into agreements and implement treaties, agreements and conventions). There is an urgent and real need to democratise the process of treaty-making. Under our constitutional system, it is not the prerogative (if we can use that expression) of the Executive. It is a matter within the competence of Parliament and it should exercise that power in the interest of the state and its citizens. In a democracy like ours, there is no room for non-accountability… Besides accountability, the exercise of power must be open and transparent (except where secrecy is called for in the national interest - what President Woodrow Wilson of the U.S. called ‘open covenants openly arrived at’.
Thus my reference to Art. 142 is not as per my dream interpretation of the same but rather by the manner in which it has been used in Vishaka and PUCL- Phone Tapping case wherein they put in place a temporary law. So here the court would have to fill in the void till such time as Parliament legislates as suggested by the NCRWC.
Hope this relieves you to know that I don’t disagree with your valuable views on the subject. I can’t explain any further
i remember what Ram Jethmalani said to Karan Thapar once “Listen Karan.. repeated bullshit does not become wisdom.. If you were not to be my friend i would have thrown you out of my house!”
Did I sound that curt in signing off ?
If you’re signing off by saying Ram’s line to me then perhaps you should consider that fools seldom disagree hence Mr Justice Krishna Iyer, and the members of the NCRWC [Mr Justice B. P. Jeevan Reddy, Mr Justice R. S. Sarkaria, Mr Soli Sorabji, Mr K. Parasaran] and this humble blogger agree on this point !
superbe!
Im equally disturbed over the consequences of 123 Agreement.
But somehow i have a feeling that Supreme Court cannot dictate or otherwise sit and magnify into or rather determine POLICY DECISIONS of the country.
Such an eventuality pictured.. i can imagine discussions in Judges Chambers what should be the amount of imports from China.
There are certain things better left to the pre-set mechanism. That is something which we loosely call Separation or Powers.
Since we have no provisions for plebecite.. i think the best option to ensure that the next thing the 123 Agreement sees is a dustbin, we ought to get rid of the government in power!
Correct me if i am wrong.