The House re-assembled at one of the clock,
MR. DEPUTY CHAIRMAN in the Chair.
THE PARLIAMENT (PREVENTION OF DISQUALIFICATION) AMENDMENT BILL, 2006
THE MINISTER OF LAW & JUSTICE (SHRI HANSRAJ BHARDWAJ): Sir, I move:
That the Bill further to amend the Parliament (Prevention of
Disqualification) Act, 1959, as passed by Lok Sabha, be
taken into consideration.
Sir, this Bill was passed by the Lok Sabha on 16th May, 2006. The law was necessitated and in order to bring into the law the National Advisory Council and all the trusts whether public or private, societies registered under the Societies Act, a Table has been added in which several offices are exempted from disqualification. Sir, the Table include the offices of Chairman, Deputy Chairman, Secretary, Member, whatever name called, in any of the statutory or non-statutory body specified therein. The list includes the bodies of States--some of the bodies are those of waqf, cooperative federations such as the National Agricultural Cooperative Marketing Federation, the Indian Farmers' Fertilizer Cooperative Limited, the Krishak Bharati Cooperative Limited and some other bodies such as Auroville Foundation, the National Commission of Enterprises, in the unorganised sector.
The hon. Members are aware that any question which comes for disqualification is decided in cases of pre-election disputes by the courts through the election petitions and post-election disputes by the Election Commission under article 102 and article 190 of the Constitution.
Recently, it has become necessary to revisit the issue of disqualification of Members of Parliament on the issue of holding offices of profit. This has been necessitated by certain recent developments which have arisen in relation to approximately 40 hon. Members of Parliament of both Houses of Parliament.
Sir, the other House has gone into the full details of all aspects of it and there was almost unanimous support except from some peripheral objections which were raised. Sir, I may submit that this Bill is a very limited measure in that there is already the Prevention of Disqualification Amendment Bill, 1959 and we are adding, through this Bill, a few more organisations and offices which are necessary in order that certain Members of Parliament are not disqualified.
Sir, this is absolutely a non-controversial measure in which there is no scope for any diverse views. Sir, I commend that this Bill may be taken into consideration. (Ends)
MR. DEPUTY CHAIRMAN: Now, Shri Mule Venkata Mysura Reddy and Shri Ravula Chandra Sekar Reddy to move for reference of the Bill to a Select Committee of the Rajya Sabha. The Member may move the amendment at this stage without any speech.
SHRI MULE VENKATA MYSURA REDDY (ANDHRA PRADESH): Sir, I move:
"That the Bill further to amend the Parliament (Prevention of
Disqualification) Act, 1959, be referred to a Select Committee
of the Rajya Sabha consisting of the following members
(names of members to be given at the time of making the
motion) with instructions to report by the first day of the
next session of the Rajya Sabha.
The questions were proposed.
MR. DEPUTY CHAIRMAN: The motion for consideration of the Bill and the Amendment moved thereof are now open for discussion. Shri Arun Jaitley.
SHRI ARUN JAITLEY (GUJARAT): Mr. Deputy Chairman, Sir, I rise to oppose this Bill. There have been many historic occasions when this House as also the other august House have had an opportunity to pass certain landmark legislations. There have also been periods in history where we have legislated ostensibly because the movers of the legislation enjoyed a majority, but those instances have never been considered to be glorious for Parliament. We have had glorious moments when the Constitution was adopted by the Constituent Assembly, we have had occasions where the first Prime Minister of India got up and said, "a Member of my own party must be suspended for conduct unbecoming of a Member", we had occasion some months ago where because of ethos in public life we decided to get rid of the membership of one of our own Members. (Contd. by 1r)
SHRI ARUN JAITLEY (CONTD): But then we have also had our own lows. Some of the lows were when we were legislating during the Emergency. There may be split opinion but some of us believe that the Shahbano legislation was one such occasion. Even if the majority propounders of this legislation feel that this is a legislation which must come, the people of this country are going to view this legislation as one of the low moments for Indian legislative history and Indian Parliament. It is here that we are legislating not in public interest, we are not legislating for the benefit of the public but we are legislating for self- benefit and self-interest of some of our Members. We are legislating against the spirit of the Indian Constitution, particularly articles 102 and 191. We are legislating, and when I read the objects of this Bill, the draughtsmen of the Bill have been candid enough to say that we are legislating because some of our Members are in the danger of losing their membership for allegedly violating the Constitution, and, therefore, we must subvert the legal system and the parliamentary system now and save the membership of those who have tried and who have subverted the Constitutional process. We are legislating, as the very name of this Bill shows, to permit our Members along with discharging their legislative functions, to continue to make profit. We are legislating against the spirit of self-sacrifice, which public life and legislative offices compel us to hold. I will not be surprised if legislations of this kind once passed are seen in public perception, by the media and the people of India as some kind of an effort by legislative bodies to legitimise a collective loot. It is, therefore, Sir, when such legislations are moved, my party and I are compelled to say that this is a * on the Constitution of India, it is an absolute abuse of the majority which the movers of this Bill enjoy, and, this is a Bill, which is going to increase manifolds the distrust which the people of India are increasingly having against politicians and public life. Whatdid the Constitution of India provide for and why did it so provide? Article 102 of the Constitution when it dealt with the Members of the Central Legislature and article 191 when it dealt with the Members of the State Legislative bodies, one of the grounds for disqualification was that you shall not hold an office of profit. And then an exception was carved out, "unless such an office," which is absolutely necessary, then it is an exempted office from disqualification. We were not the first Constitution in the world to provide for this. The democracies which follow our pattern and which have preceded our pattern world over have this provision. And
* Expunged as ordered by the Chair.
the reason why they have this provision is, one of the essences of the Indian Constitutional order is the separation of powers. In fact, the separation of powers is one of the un-amendable concepts enshrined in the Indian Constitution. The Judiciary, the Executive and the Legislature all enjoy their functions and they must function independently and separately. If Judges, when they discharge their judicial functions, are given offices which involve profit by the Executive, it will be perceived that the Judiciary has lost its independence and Judges who occupy offices in addition to their judicial offices where they get extra profit from the Executive, it will seriously compromise judicial independence. Therefore, our Constitution does not permit it. What happens to the relationship between the Legislature and the Executive? The Legislature is the conscience keeper of the society. The Executive, which executes its decisions, owes its accountability to the Legislature. We have to question the various acts and performances of the Executive.
(Contd. by 1s)
SHRI ARUN JAITLEY (CONTD.): We have to be independent in the discharge of our functions, and we must, therefore, independently be in a position to opine and form an opinion on how the Executive is functioning. That is the whole concept of separation of powers. And why did the Constitution say, in India, in articles 102 and 191 that the legislators will not occupy an office of profit and they will incur a disqualification if they so occupy an office of profit? This is because once the Executive is able to bestow such favours on you, it is able to provide you profit then your independent legislative functioning gets seriously compromised, and once your independent legislative functioning gets compromised, the accountability of the Executive to the Legislature gets diluted, and because of this dilution, the legislators must function independently just as the judges must function independently. They must not be perceived and must not actually receive favours from the executive. And that was the rationale why the framers of our Constitution said, "If you want to be Members of the legislative bodies then you must give up the temptation of getting into some element which involves benefits of profits as far as the Executive is concerned. It is not for the first time that the situation has confronted us. We have had the various Select Committees, we have had the various parliamentary Authorities which have commented on this. Sir, I just read one passage from what Kaul and Shakhdher say why did we have this provision. And they say:
"The underlying object of this Constitutional provision is to secure independence of Members of Parliament or a State Legislature and to ensure that the Parliament or the State Legislature does not contain persons who have received favours or benefits from the Executive Government and who, consequently, being under an obligation to the Executive might be amenable to their influence. Obviously, the provision has been made in order to eliminate or reduce the risk of conflict between the duty and self-interest of the legislators."
Once, when the 1959 Bill was framed, it was preceded by a parliamentary Committee. It was headed by Shri Thakur Das Bhargava. That parliamentary Committee, then, went into what are the cardinal principles as to why articles 102 and 191 in the spirit of this must be maintained. They said, "There are three reasons why this must be done." And each one of those three reasons remains equally valid even today. And the three reasons are:
1. Incompatibility of certain non-Ministerial offices with memberships of the House;
i. The need to limit the control or influence of the Executive
ii. Government over the House; and
2. The essential condition of a certain number of Members being
Members of the House for the purposes of ensuring the control of the Executive by Parliament.
Now, the Bill has functioned. It functioned in British democracy. Though I must mention that in British Parliament, the Bill which has been passed is substantially different from us, they have had a more positive approach, a positive approach in the sense that any Member of the House of Commons must not take benefits from the Crown's Government. That will compromise his functioning. And they have a law which has listed, literally, hundreds of offices in the Executive, in the Judiciary, in the Army, among the police forces, various Committees and various Commissions, and has said that these are all offices; the moment you get into any one of these offices, your membership gets automatically terminated; you incur a disqualification. So the British practice which they have followed is that they have a large list of negative offices which a Member of the legislative body cannot go close to. What we did was, we tried to follow the principles of article 102 which means the conflict between a legislative Member and his taking benefits from the Executive needs to be avoided. And we, therefore, in 1959---prior to that, there was a transient legislation--made certain minor exceptions. And the minor exceptions were that assuming some Committee is to be appointed in which an eminent Member who happens to be a Member of the House is the Chairperso; then, some rare cases, some exceptional cases could be exempted. (Contd. by 1T)
SHRI ARUN JAITLEY (CONTD.): So, we said, 'everybody would be disqualified'. In fact, we were tougher than the British. The British said, 'only if you occupy certain offices will you be disqualified'. We said, 'no, any office which is an office of profit will incur a disqualification.' However, the Parliament in its wisdom may think that there are a few offices where the experience of somebody in public life is required and, therefore, Parliament can exempt that office. The Act worked well. Few offices were exempted. And what happened in the meanwhile? You now had a situation, as politics are grown in this country, there was a desire of almost everybody to become a Minister or get a ministerial status. So, a large number of ruling party members in the State Legislature said, 'I want to be a Member of the Cabinet. I want to be a Member of the Council of Ministers. If you can't make me a Member, then, at least, give me a post which will confer upon certain privileges and benefits to me'. Now, the moment this craze, this lust for the white Ambassador car increased in State after State, you suddenly found that in State after State, in the Union Parliament, a large number of people occupying these offices and, therefore, their ability to keep the executives in check starting diluting and disqualifications were incurred. The Supreme Court on various occasions and because the President acts on the aid and advice of the Election Commissioner in this matter laid down a very clear role, and in the entire law they laid down and while interpreting these provisions they said, 'this is a salutary provision which is intended to keep the independence of the Legislature. It is to keep Members of legislative bodies free from any kind of pecuniary benefits from the executives. Therefore, if there is an office, which the Government makes the appointment, the Government pays the remuneration, the functions are of a Governmental character, then, these are offices which would, naturally, incur these disqualifications'. Sir, in the year 2003, both Houses of Parliament in a different context considered this. It took us more than 40 years to consider the recommendations of the Administrative Reforms Commission. The Administrative Reforms Commission had said that you can't have a system where you have infinitely large number of Members of a Council of Ministers. Therefore, you must restrict the number of Ministers in every Government. So, both Houses of Parliament had an amendment and that amendment in most parts of the country has worked very well and the manner of its working has been that today you can't have the size of a Council of Ministers where the number increases more than 15 per cent of the Lower House in each case. Now, this has functioned across the country for the last 2-3 years and there are no serious grievances or complaints expect people who had to vacate offices because of this cap, which was placed. Therefore, post-2003; the tendency to accommodate those people and, therefore, indirectly defeat this Constitutional amendment has also increased. Now, the Constitution has put a cap of 15 per cent. We must now actively start working how to defeat the cap. So the Constitutional cap of 15 per cent is defeated. 'If I can't make you a Minister, I will make you almost something like a Minister' for which there is no provision in the Constitution. States started having Parliamentary Secretaries. They started having Chairmen of various bodies. Committees were constituted with the same facilities and the object of the Administrative Reforms Commission that cut down the size of the Government, reduce wasteful expenditure of the Government, we started again defeating. Then, we suddenly realised that we had to get rid of some people. They must either occupy these offices or continue to be Members of legislative bodies. We suddenly had this crisis when a large number of complaints have been filed and people who asked for these offices are the people who now had to face their own consequences because of this. Now, this is a Bill which we have drawn out and this Bill when passed, Sir, not only takes care of Members of Parliament but now it acts as a bad Constitutional precedent for every State Legislature. What will be the effect after this Bill has been passed? (CONTD. BY NBR/1U)
SHRI ARUN JAITLEY (CONTD.): After this Bill has been passed, we will have a large number of offices at the Centre which are exempted offices. Every State will now start exempting its own offices. And, finally, Article 102 says, the spirit of the Constitution says and the concept of separation of powers says that the Legislative Members must not take favours from the executive. But, we will have hundreds and hundreds of offices all over the country which are exceptions to the rule. Now, These exceptions to the rule will really make it nugatory, the Constitution becomes nugatory, because hundreds of offices, which are exempted offices, will get created all over the country. Therefore, hundreds and hundreds of Members of the legislative bodies at the Centre and in the States will be getting profit at the behest of the executive. The Members of this House have to ask their conscience a question. That is what I said that this will be one of the all-time losses for this legislature once a Bill of this kind is passed. We are now sitting at a time when independence of Members of the Legislature is compromised. It is compromised through legislation of this kind. A question will be asked by the future generations, 'You were all Members of the House at that time, what did you do to stop this from happening?' The essence of the Indian democracy, separation of powers has been completely obliterated by this Bill. The Members of legislative bodies will be getting bribed, which is a better way of putting it than a more honourable way of getting profit from the executive, and we say, 'we passed it because we wanted to save the Membership of some of our Members.' That is not what I am saying. That is what the Statement of Objects and Reasons is saying. It says, "This has been necessitated due to recent developments where approximately 40 or more Members from both the Houses of Parliament are holding offices of Chairman or members of various statutory and non-statutory bodies and are facing disqualification proceedings on the ground that they are holding an office of profit. If this state of affairs is allowed to continue then there is bound to be large-scale litigation and the likely vacation of seats in both the Houses of Parliament, which will necessitate the holding of by-elections to fill up the resultant vacancies. This will be a wasteful expenditure and will enforce unnecessary financial burden upon the nation." This is the Object and Reason! The Object and Reason could not have been more honest than this. The reason is that this Bill has not been brought in to uphold the separation of powers and independence of legislature. But, this is a collective exercise by all of us to save some of our Members so that they can continue to be members and also continue to receive profits from the executive. Therefore, if their membership goes then hell will let lose and there will be litigation and there will be fresh elections. And, elections are something which the Indian democracy can never afford. If this is the essence of the Bill, I really appeal to the conscience of all the Members who are supporting this Bill to seriously reconsider whether a Bill of this kind is one where history should then blame us for having been a party to it. What does this Bill effectively say? Sir, I have gone through the Bill. This Bill effectively says that now there are a large number of exempted offices. All these exempted offices will not incur disqualification. These offices get exempted from when? Not from today, not from the date when these offices were born, but in some cases, 40 to 50 years before offices were born! Clause 3 of the Bill says that the following Table shall be deemed to have been inserted with effect from 4th day of April, 1959. Every office has become an exempted office from 4th April, 1959. Which is the office? The first office is, The Tipura Khadi and Village Industries Board constituted in 1966. Now, the 1966 office is exempted w.e.f. 1959! The National Advisory Council constituted on 31st May, 2004, exempted w.e.f. 1959. So, every such office like the Auroville Foundation established in 1988 will be exempted from 1959!
(CONTD. BY USY "1W")
SHRI ARUN JAITLEY (CONTD.): And, it is a masterly drafting! All the offices, in this Bill, have been exempted, 40 to 50 years before the offices were even created. Therefore, not only is the present occupant exempted, but even those who could not have occupied these offices, because the offices did not exist are, now, exempted.
THE LEADER OF THE OPPOSITION (SHRI JASWANT SINGH): I am really confused here. This is a very important piece of legislation. A very important point is being raised. How do you exempt that which was non-existent? Will the hon. speaker elucidate this pointedly? Have I understood correctly that that which was non-existent is yet exempted? I wish to learn how do you exempt the non-existent.
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SHRI ARUN JAITLEY: Sir, I am sure there must be a very strong rationale behind exempting the offices even before they existed, and the hon. Minister will certainly take care of this when he answers the debate.
What else does this Bill do? And, I think, more than the Minister, this Bill has something to do with preserving the Government in power. When I say 'preserving the Government in power', I find a special favour being shown to West Bengal. Bulk of the offices, in the schedule, are: The Tripura Khadi and Village Industries Board, the West Bengal Handicrafts Development Corporation Limited, the West Bengal Small Industries Development Corporation Limited, the West Bengal Industries Development Corporation Limited, the Sriniketan Santiniketan Development Authority, the Haldia Development Authority, the West Bengal Minorities Development and Finance Corporation, the Hooghly River Bridge Commissioners, and there are series of West Bengal authorities. (Interruptions) Sir, one thing I have always conceded in favour of my friends in the Left Parties, has been that in any debate, their effort is always to occupy the high moral ground. And, today, if this list of 45 odd or 50 odd offices is received, there is one factor about this list, which is common -- every name has a face behind it. Every name is not concerned with the institution and the functions it discharges. The object behind the exemption was that there might be some exceptional offices, with those experienced in legislative activity may have to perform a function. Therefore, in that one exceptional case, or, in those three exceptional cases, Members of the legislative bodies may be spared and they may be exempted. But the rationale of adding this list is not that the nature of office is such that it requires an MLA or an MP to perform. That is why this list is a complete * on power. (Contd. by 1x -- VP)
SHRI ARUN JAITLEY (CONTD.): The rationale behind this list is, the present occupant of this list has a face, he has a name and that name belongs to the party which is supporting the Government. And this is the price of the support which they are trying to extract. And, therefore, those who have claimed to occupy the high moral ground, in any debate on any public issue, are today virtually holding the Government to ransom and saying, "please include all these offices because we are in danger of losing our Members." Why should the Haldia Development be headed by only a Member of Parliament? The Kandla Port is not headed by a Member of Parliament. The Navashiva Port is not headed by a Member of Parliament. The development authorities are not headed by Members of Parliament. Handicraft bodies are not headed
* Expunged as ordered by the Chair.
by Members of Parliament. The Sriniketan Shantiniketan Development Authority ...(Interruptions)...
MR. DEPUTY CHAIRMAN: Don't take names please. ...(Interruptions)...
SHRI ARUN JAITLEY: Okay. There is a name and a face behind each one of these bodies, and this is really the price for support to this Government which my friends in the Left have really extracted. So, the holding point of the coalition is not the Common Minimum Programme, but it is the joint survival of both of them. The CMP stands substituted by the desire to survive. While on the television screens you may say that it is the CMP which holds us together, but it is really this support for survival which holds this Government together. ...(Interruptions)... The CMP, as my friend, Shri Yashwant Sinha, says, can now be called the 'Common Minimum Profit.' This is the CMP. That is why, we are really choosing to support a Bill of this kind. ...(Interruptions)...
SHRI C. RAMACHANDRAIAH: Mr. Narayanasamy, that is why, we are here. ...(Interruptions)...
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SHRI ARUN JAITLEY: Sir, I will take two minutes. ...(Interruptions)...
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MR. DEPUTY CHAIRMAN: I know he is the only speaker. ...(Interruptions)... I am just reminding that the time allotted to your party is over. ...(Interruptions)... I just reminded him. ...(Interruptions)... I wanted to know how much time he will take. ...(Interruptions)... I know he is the only speaker from your party. Thirty-one minutes allotted to your party are over. So, I just wanted to know how much time he will take. ...(Interruptions)...
SHRI ARUN JAITLEY: Sir, if we now see the objects of the Bill, a large number of Members of the Legislative Assemblies, the Lok Sabha and this House may be facing election petitions. If election petitions are allowed, or if they are allowed to continue, a lot of cost is incurred on litigation. Wasteful time of Members of Parliament is being spent in going to courts and engaging the advocates. If in the case of any Member's membership is set aside, it will lead to a fresh election. And a fresh election, according to the rationale of this Bill, is destructive of democracy. Therefore, the offices must be saved. Now, if this is done in regard to every case, if this rationale is carried forward, where does this leave us? It leaves us in a situation where -- now the law settled by the Election Commission, the Rashtrapati having accepted the recommendations of the Election Commission, and the pronouncements of the Supreme Court, the law is clear now -- if you occupy an Office of Profit, you may not actually receive some money, but if you are merely entitled to receive it, that is enough to disqualify you. That is the salutary principle, independence of legislators. We have always spoken of the independence of the Judiciary, the dignity of the Executive and its professionalism in giving advice. But the concept of the independence of the Legislative bodies cannot be ignored. That is really the essence of Indian democracy. Therefore, what should the Government have done in a situation of this kind? I can quite understand a political difficulty across the spectrum that the Government faces. The Government had really two kinds of courses. The course had to be Constitutionally correct, and more important, morally and ethically correct. What is morally and ethically highly improper would violate the spirit of the Constitution itself. The course which the Government has chosen is a course which, in my view is, morally and ethically disastrous and Constitutionally questionable. It is a course which seeks to say that with retrospective effect, last 52 years, we legitimise all violations of article 102. (Continued by PB/1Y)
SHRI ARUN JAITLEY (CONTD.): We not only legitimise those violations, but we hereby say that hundreds and hundreds of offices all over the country can be occupied by Legislators, and this will not be deemed to be an Office of Profit. The independence of legislative bodies will be set at naught. This is the effect of this legislation.
My colleague, Sushmaji, had been propagating this idea that if you have a difficulty on hand and that now you feel that there is a fresh consideration of law which has come to our notice, all right, please condone the past if you want to, but, at least, stop this practice for the future. Let us not leave behind footprints which are constitutionally unacceptable in any democracy. This House, the Government and all of us, collectively, would have risen in public esteem that we have now realised that what was happening was not fair, was not constitutionally correct, and, therefore, we have decided to stop this practice, we don't want to be vindictive, we don't say that membership of Members of Parliament and Legislative bodies be eliminated, but, as a constitutionally correct course, henceforth, no such illegality will be continued. It is the same course which Mr. Jaipal Reddy in the Delhi's unauthorised constructions has been suggesting; please forget the past and start following the law in future. This was the possible course which was being suggested, and if you didn't want this course, there was an alternative course open. And, in the alternative course, you don't add list of dozens of Members in each State Assembly and the Centre; you just have a clarificatory legislation as to what really is an Office of Profit. If you want MLAs and MPs to head certain kinds of bodies so that their legislative experience can be used, then, please bring a clarificatory legislation for the future that they can occupy these offices and give their experience to these bodies, but they will not be entitled to draw a single rupee either as a compensatory allowance or salary or perquisites or any facilities. Let them get only the remuneration they get as Members of Legislative bodies. I get my salary as a Member of Parliament and I discharge functions in a body where I think with a spirit of self-sacrifice, I have to do it. Instead of adding to the list, you could have had a clarificatory note, so that the people feel that in addition to your functions as a Member of a Legislative body, you are working somewhere else independently and you don't want any remuneration for doing that. This would have enhanced the dignity and the stature of Members of Parliament. But the same House some months ago proclaimed itself for the best of ethics, and rightly so. The Ethics Committee said that somebody has accepted five thousand rupees; and for accepting five thousand rupees, you don't deserve to be a Member of this House, and, Sir, today, you want this country to believe that we are bribed day in, day out by the Executive, continue to get profit from the Executive and continue as a Member of Parliament because the legal system and the legislation of this country will continue to protect you. This, Sir, is what I said, will go down as one of the all-time lows in Indian legislative history, and that is why my party has decided to oppose this Bill in its present form completely. (Ends)
MR. DEPUTY CHAIRMAN: Dr. Abhishek Manu Singhvi. It is his maiden speech. ...(Interruptions)... Afterwards, please.
(Followed by 1z/SKC)
DR. ABHISHEK MANU SINGHVI (RAJASTHAN): Mr. Deputy Chairman Sir, I rise before this august House for my maiden address. I have heard the hon. Member with rapt attention, and despite his undoubted forensic skill, may I say that he cannot make a weak case strong, or a weak case persuasive. I rise to support the Bill because it is a public interest measure, because it is a bill to keep pace with the times.
Sir, the acronym OoP, Office of Profit, is an old parliamentary concept. But, it is an old parliamentary concept, which comes with an inbuilt palliative, an inbuilt corrective. That inbuilt corrective is provided for course correction whenever society wants it. It is the enabling sanction of the Constitution itself and that is precisely what the hon. Member and the party he represents wants us to forget. May I remind you of that enabling specific mandatory sanction of the Constitution? It reads thus: " If"- the word is 'if' --"he holds any office of profit under the Government of India or the Government of any State other than an office declared by Parliament by law not to disqualify its holder." In other words, once Parliament so declares, the Constitution mandates that it shall not be an office of profit, that it shall deemed not to be an office of profit. And this is really a charge by the hon. Member against the framers of the Constitution. It is a charge by the hon. Member against those who debated in the Constituent Assembly -- to which I shall refer shortly-- and rejected the very proposal which the hon. Member is today making.
Why is this course correction, this enabling sanction of the Constitution, required? It is required so that the concept does not become a trap for the unwary, so that the concept does not become an obstruction to public interest, so that it does not become an obstacle to good governance and so that it does not create wholly unavoidable uncertainty. This Bill does nothing more, Mr. Deputy Chairman, Sir, except that which is entrusted by the Constitution to Parliament to do. It does no more than what has been done several times earlier, at least, ten times earlier. It is pre-sanctioned and pre-certified by the Constitution. It obviates uncertainty. What is this uncertainty? It is the uncertainty of the very mode of judicial determination. Once a statute specifies an office, the very mode of statutory specification eliminates uncertainty. It eliminates the uncertainty of the facts case to case. It eliminates the uncertainty of post-facto determination and adjudication in judgement case to case. That is precisely why this specific mandate was provided in the Constitution. We must never forget why the Constitution spoke the words it did. The candid fact is that the 1959 Act was not reviewed, examined or evaluated over the years. This Bill is, therefore, both curative and preventive. ...(interruptions)...
MR. DEPUTY CHAIRMAN: Silence, please. It is his maiden speech. Please, listen to him.
DR. ABHISHEK MANU SINGHVI: Sir, this Bill addresses reality, and the reality is that there have been several offices, which serve a public interest but which have gone unaddressed in earlier amendments. It is a big mistake, Mr. Deputy Chairman Sir, to consider that every office listed in the Schedule to this Bill is an office of profit. That is a big mistake, which has been dealt with earlier. A catena of judicial decisions lay down judicial tests and if one were to apply those judicial tests, many of the offices in the Schedule would not qualify as offices of profit. And they would not qualify as offices of profit also, either because they involve autonomous institutions, or because they involve no sovereign, no executive, no revenue functions, or because they involve no hire-and-fire by the Government. But, nevertheless, they are put in this Schedule, they are put in this Bill, and they have been put in earlier amendments. Why -- for the reason that it is important to provide statutory certainty by name. A statutory certainty does not come by mere definitional changes and this is the precise point raised earlier in the debates, and that is why, this mode of statutory specification in terms of the Constitution is being adopted. It is, therefore, a methodology of abundant precaution for certainty, surety and good governance.
What is the mischief that this Bill seeks to suppress? Clearly, the Bill seeks to avoid a conflict, and the law and Constitutional provisions seek to avoid a conflict between duty and interest. Clearly, they seek to prevent a misuse of official position. Clearly, they seek to prevent and avert the likelihood of influencing by the Executive. But, I submit that this concept cannot be cast so wide. It cannot be cast so wide that participatory Government itself, doctors, scientists, lawyers, engineers, a host of public-spirited individuals, a host of the elective and non-elective offices, will be excluded. (Contd. by 2A/HK)
DR. ABHISHEK MANU SINGHVI (CONTD.): In the salutary words of Justice Krishna Aiyar, he said, "An interpretation of office of profit to cast the net so wide that all our citizens with specialities and know-how are inhibited from entering elected organs of public administration and offering semi-voluntary service in official, statutory or like projects run or directed by the Government may be detrimental to democracy itself." It is really that detrimental democracy which this Bill and its earlier amendments seek to prevent. I will deal shortly with various examples given by the hon. Member. But a quick historical survey of the concept of Office of Profit is instructive because it shows the growing contemporary irrelevance of the concept prior to the present amendment. It is ironic that the story starts not with the slippery slope of what is an Office of Profit but the fact is that Office of Profit was created as an escape route from Parliament. The story starts in England where by a quaint English notion Members of Parliament were not entitled to resign their membership of Parliament. To enable them to leave Parliament for those who wish to do so, two ancient or obsolete offices were created and the fictional assumption of which would allow them to leave Parliament. But in what context did this happen? This happened in a context of perpetual strife between the British Crown and the British Parliament. There was a perpetual state of hostility and antagonism between the British Parliament and the British Crown. It is in that state of hostility that it was thought necessary that Members of Parliament should be insulated to the extreme from any influence by the British Executive. What a far cry today! Do we have that separation of powers today? Today the Cabinet Government system, the form of Cabinet governance which we follow and which several other countries follow, provide a hyphenated link between the Legislature and the Cabinet. Indeed, the Cabinet is nothing more than a very special committee of the Legislature. What happens when the previous Government enacts the rule that a legislative whip will lead to voting only in accordance with that whip? Such a whip, such a rule, such a constitutional amendment means that the separation of power which the hon. Member talked about may exist only in a figment of his imagination. It does not exist in the reality of Cabinet governance today, neither in India nor anywhere else where it exists. Therefore, to talk of Office of Profit in that artificial sense, in the sense of an artificial non-existence separation of power, is completely wrong and indeed misleading. But that is not to say that we are casting away the concept of Office of Profit; that is not to say that we are abandoning the concept of Office of Profit. The Office of Profit concept remains. But we need to revisit it to see its contemporary form, shape and size in the contemporary relevance of the contemporary context. It is very interesting that the example which the hon. Member gave of England is itself an example which undermines the point he seeks to make. In England after the Office of Profit concept was started, it was shortly thereafter felt that it is an unfortunate noose around the neck and, therefore, you had eminent Committees like the Herbert Committee of 1941 and the Spens Committee of 1956 to revisit the concept. Ultimately, in 1957, a statute was passed in England which has been reincarnated in 1975 which does the opposite of what India does. It specifies a certain number of offices which will compulsorily disqualify persons. In other words, the residuary category, the entire universe of all other offices, is open to be assumed and will not result in disqualification. (Contd. by 2b/KSK)
DR. ABHISHEK MANU SINGHVI (CONTD): In other words, the British Statute, which the hon. Member mentioned, creates a far larger exempting zone. It creates a far larger exempting zone because the British Statute only lists about 200 offices which will lead to disqualification. Everything else in the universe is open to be assumed by a Member of Parliament in the country of its origin, the Great Britain, and that will not lead to disqualification. That is the meaning of changing the law to keep pace with the times. That is the meaning of adapting the contemporary relevance of the concept of Office of Profit to the changing realities of the world, and if I remember right, I heard the hon. Member say that this is a very positive statute. Well, if the British Statute is positive and it limits only 200-odd positions as Offices of Profit and leaves open the entire universe of all other offices, then in that case, the Indian model is, obviously, much more restrictive. The British seed did not travel to India till 1935. In the nineteenth century, there were several statutes. There were the Indian Council Acts in 1861, in 1870, 1874 and so on and so forth. Not one of them mentioned an Office of Profit. The 1915 and 1919 Acts mentioned a vacancy or assumption of office under the Crown, but did not mention an Office of Profit. It was, for the first time, in the 1935 Government of India Act that the phrase, as we see it today in article 102 and article 191, was found. It was the Government of India Act which brought in this concept. And, after the Government of India Act, I must hearken you back to the Constituent Assembly debates. The Constituent Assembly, very interestingly, mentioned a proposal by the Editor of the Indian Law Review. The Indian Law Review Editor, whose proposal was discussed in the Constituent Assembly, specifically asked for the deletion of the words, "other than those posts declared as exempt by Parliament". That was a specific proposal which came to the Constituent Assembly. The Constituent Assembly specifically shot it down on the ground that the Parliament must retain that power, that flexibility, that plenary jurisdiction to add to the list of Offices of Profit, which may be exempt, or indeed to add to the list of offices generally which may not be Offices of Profit which are required to exempt, and that is a very clear answer of our Constitutional intent. That is a very clear answer of what our framers intended and hon. Member's request today is to go contrary to the intent of the framers of the Constitution. Thereafter, the then Constitutional Advisor, Shri B.N. Rao, brought another model. The another model he brought required a provision of disqualification in the Constitution itself. That was another specific proposal by the Constitutional Advisor, Shri B.N. Rao. That proposal was again shot down on the ground that Parliament must retain that flexibility and that power to add to the list of exempt offices. These are very significant clues to the Parliamentary intent and, more importantly, to the intent of framers of the Constitution and it is that intent which sought to be subverted by those who oppose this Bill. The debates in Parliament, which preceded the various Acts we had; we had the 1950 Act, the 1951 Act, the 1954 Act and then, of course, the 1959 Act. Each of these Acts was preceded by the debates, especially the 1954 Act and 1959 Act. In these debates, it was pointed out -- in fact, both the Bills were piloted by the then Law Ministers -- that the specification of many of these offices in the Schedule does not necessarily mean that they are Offices of Profit. The specification is necessary for abundant precaution; the specification is necessary to eliminate uncertainty. And, then came the Bhargava Committee Report. After the Bhargava Committee Report and after the 1959 Act, which as you know, did exactly what the present Bill does except that the number of exempt offices was smaller. The only difference was that the number of exempt offices was smaller. But, thereafter, in 1960, several Central Government public sectors were added. In 1977, the post of the Leader of the Opposition was added. In 1993, the Deputy Chairmanship of the Planning Commission was added. And, in 1999 and 2000, all the leaders and deputy leaders of various political parties were added. (continued by 2c)
DR. ABHISHEK MANU SINGHVI (CONTD.): Let me address the highly overstated and somewhat dramatically overstated argument of retrospectivity. Most of you know about article 103, and, I am sure, the hon. Member knows it better than most of us. Article 103 requires all adjudication and decision on matters involving disqualification to be mandatorily done by the Election Commission, whose opinion the President must seek, and, by whose opinion, the President is bound. On the date when the Election Commission will decide these matters, this Bill seeks to change the law before that date. In other words, on a future date, if the Election Commission will decide the 30 or 40 odd petitions pending, it will have before it a law which the Election Commission like all other authorities in India are bound to apply; a law which says, "You, the Election Commission must decide in accordance with the law as it today stands. That is retrospectivity; that is prospective application of an existing law, which every adjudicator is obliged to apply. That is point one.
But, point 2, perhaps, my hon. friend knows even better, is that way back in 1969, there was the judgement of the Supreme Court -- not a judgement only by the Supreme Court, but by a Constitution Bench of five Judges of the Supreme Court. A lady, Ms. Kanta Kathuria in Rajasthan who had become an MLA while she held the position of a Counsel in the Government of Rajasthan. That infirmity was sought to be cured by the Rajasthan Legislative Assembly completely retrospectively, not even prospectively in the sense that this Bill does... (Interruptions)....This Bill applies to the Election Commission prospectively but that Bill was completely retrospective. The five Judge Bench of the Supreme Court upheld retrospectivity, and, that is the law as it today stands. (Interruptions)
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DR. ABHISHEK MANU SINGHVI: My friend made a farce, out of positions, which are dating to 1959, to 1960, to 1962. He called it absurd that a position which does not exist in the Act is sought to be legitimised; a position not born.
But, surely, my friend, especially my friend as a former Law Minister, must know that if you pick up any and every Act of Parliament, and, I repeat, any and every Act of Parliament, which has retrospectivity; the retrospectivity proceeds on a deeming fiction. The deeming fiction is that from the date when the law was passed, which this law seeks to amend, the law shall be deemed to have always been that. Surely, this law today in 2006 seeks to amend the 1959 law. If this amendment were to stop at 1972 or 1973, my learned friend and his party would be the first to rise and say, what kind of an amendment is this. It does not go back, it does not reach back to the 1959 Act. This is absolutely known to anybody who moves any Bills, and, I am sure, my friend, the Law Minister and everybody else can produce umpteen endless number of Bills with retrospectivity passed under the pilotship of the hon. Member himself, which follows the sanctified, ancient, established formula of retrospectivity.
There is an opposition to the Bill on the ground that this goes against the spirit of the Constitution. This is nothing but a red herring. Everybody knows that we are not moving a Constitutional Amendment Bill. This is neither a Bill to amend the Constitution, nor, my friends, is it a Bill to delete the concept of Office of Profit. A deletion of the concept of Office of Profit by a Constitutional Amendment Bill would certainly fall foul of a higher moral principle, even though Parliament may be entitled to do it on its two-third amending power. But what my friends do is to first set up a straw man. They set up a straw man saying that you are reducing and eliminating the concept of Office of Profit to vanishing point, and, then, they proceed to shoot down their own straw man, which they have themselves set up. But this is a mere an amending Act. This Act does no more and no less that what 1950 did, 1951 did, 1954 did, 1959 did, 1960 did, 1977 did, 1993 did, 1999 did and 2000 did. (Contd.by sk/2d)