PREVIOUS HOUR

RSS/3d/4.00

SHRI RAM JETHMALANI (CONTD.).. because her office had carried no statutory powers of any kind. I have no idea of what emoluments that office carried with it. Therefore, I am not prepared to comment on that aspect of it. Maybe, even the profit ingredient of the office of profit was satisfied in her case. Probably, it was not. But, I would have expected somebody to tell us because, then, she would have a second feather in her crown if it was first not an office, then, it carried no profit. But, Sir, they are not prepared to give us that information. That information should be forthcoming. But I say that if any office required to be now confirmed as a non office of profit, and not leading to the disqualification, it is that office because you have made that poor lady go through the penance of resignation, penance of a new election, and I hope, at least, now, you will see to it that you have a proper definition of an 'office of profit' so that it should never be opened to argument that she is relying upon an exemption. If you define the 'office of profit' as an office created by statute, carrying statutory powers and carrying emoluments, over and above the out of pocket expenses, then, Sir, I believe that most of these offices are not offices of profit, and this Bill will be wholly unnecessary. I do not know why those, who want to defend this Bill, are not in a position to go to the people and say that we never earned any profit out of this. We have been really rendering service, as my friend here said that an office of profit should be called an office of service, and once you really make it an office of service, and not some kind of a facade, some kind of a cover for providing financial help, there will be no problem. It is an institutionalised bribe, if you ask, if you are doing it the other way.

Now, comes my third concern. My third concern is still more vital. You are right that you are not repealing article 102 or 103. But, there are a large number of offices of profit which will still carry the disqualification. Our law is supposed to comply with article 14. You must point out what rational discrimination exists between the offices which we are validating, and those offices which will still continue to be subject to the old law. Sir, I regret that this Bill shall again be terribly vulnerable to attack by the Judiciary. We will be putting our caps and hats of honour in the hands of the judges. The Judges will have to sit and pronounce that this legislation now is ultra vires, because it is opposed to article 14 of the Constitution, on which ground, our other people are incurring a disqualification, but these people are not. Sir, some rational criterion should have been indicated why these positions are being saved from the general provision, if not in the Bill, at least, in the Statement of Objects and Reasons, or, at least, in the speech of the hon. Law Minister. Now, when he sums up, I hope, he will indicate to the House a rational criterion which can then be quoted to the people and to the Judiciary that this is the real reason why these offices are being saved, and I must say again, in all fairness to the lady, that she has not only done penance, but has also gone through the electoral process again. She has gone to the people, and the people have confirmed and ratified her stand. She at least, comes to this Parliament with a new mandate from the people that you can go, and by all means, occupy that office of profit. If that is something which is creating this kind of heat, according to me, it is totally unjustified, and unfortunately, terribly unfair, and the result of party politics. Now, comes the part where I said that this is immoral. Sir, why do I call it immoral? It is because of the fact that it is a well-established principle of parliamentary life that you cannot possibly be Members, sitting in the House, and pass a legislation which has the effect of serving your own interest.

(contd. by 3e)

MKS/MP/4.05/3E

SHRI RAM JETHMALANI (CONTD.): Those who have incurred disqualifications are now sitting over here and voting. Voting to save themselves from disqualification! And see what that great American of the Congress did. There was a gentleman by the name of Saxby. He was a Member of one of the Houses of the Congress. In his time--Sir, he was only an ordinary Member--probably, without his vote, the salary of the Attorney General of the United States was increased. After his tenure came to an end, he became the Attorney General. The question that arose was: Could he draw the increased salary of an Attorney General? When he, earlier, was a Member of the Congress, the salary had been raised. Sir, look at the credit to that great Congress, the great Legislature of a great democracy. They said, "First reduce the salary of the Attorney General now and, then, appoint him as an Attorney General. He cannot take advantage of the increased salary which took place when he was the only one out of the 501-odd Members." Sir, those are the great principles about which I am concerned today. And I say this, if you want to sit over here and remove your own disqualifications, remove the disqualifications by all means, but do it for the future. Do it for others, but do not do it for yourselves. That is the great principle of probity. But, Sir, unfortunately, my voice must be a voice in wilderness because these great upholders of morality have now joined hands, and there is hardly any opposition on this issue. The Lok Sabha has already passed the Bill and nothing remains except to say that you are going to get into trouble without formulating a rational criterion of discrimination. I expected my young friend, in his maiden speech, to tell us; he was conscious of the deed of pointing out some factors of discrimination, and, therefore, he did try to outline one or two. But, with due respect, Sir, those are not correct criteria of discrimination. You cannot discriminate on the ground that people will be saved of litigation, that people will be saved of expenses of fighting an election again, that there will be some dislocation in some people's work. These are not rational criteria of discrimination under article 14. Some other higher principle has to be evolved. And you, please, evolve it before you go further with this Bill.

Sir, lastly, if anybody reads the Constitution, what does article 102 say? It says: "If you hold an office of profit or if you acquire an office of profit, your seat shall become vacant." It does not depend on any court's judgment; it does not depend, even in some cases, on the President; it does not depend on the Election Commission. They only declare, lawfully, a vacancy which has taken place by operation of a constitutional article, Sir, you can amend any parliamentary legislation with a retrospective effect. At least, most of the parliamentary legislations can be amended with a retrospective effect, but you cannot undo the result of a constitutional provision by a retrospective subordinate legislation. And our parliamentary legislation is a subordinate legislation. The holder of an exempted office of profit will not entail disqualification, but the holder of that office which has not yet been exempted ceases to hold the parliamentary seat, and after that, retrospectively, you cannot possibly reinstate him. And, Sir, that brings me to the very, very unsatisfactory drafting of this Bill. Look at section 4. How do you reconcile sub-section (1) and sub-section (2) in section 4? In sub-section (2), you say:

"Nothing contained in sub-section (1) shall be construed as to

entitle any person who has vacated a seat owing to any order

or judgment as aforesaid, to claim any reinstatement or any

other claim in that behalf."

(Contd. by 3F)

-MKS-TMV-ASC/3F/4.10

SHRI RAM JETHMALANI (CONTD.): Now, therefore, in spite of any judgement or any order, you can't claim reinstatement, means you can't claim to be a Member of the House. You can't say that you want to be brought back here or to gain admittance to the House. Under sub-clause (1), you say exactly the contrary. Sub-clauses (1) and (2) of clause 4 stand out directly in contradiction. Mr. Bhardwaj, kindly, at least, improve the English of sub-clause (2). What does it say? It says that you shall not be entitled to make a claim to be reinstated or to claim a claim. You can't claim a claim. You can make a claim, but you can't claim a claim. Kindly improve the language of sub-clause (2). Sub-clauses (1) and (2) stand out in stark contradiction to each other and it is going to create several problems for the judiciary and for those who are going to deal with this in future. So, Sir, I expect some satisfactory answer from the Law Minister which will make me to give my wholehearted support to it. You are, probably, exposing 56 people to an unnecessary ignominy. They may not be holders of an office of profit and, yet, you are telling them to claim exemption under this law. Perhaps, all the 56 are not offices of profit. Somebody should look into this. (Interruptions)...

THE MINISTER OF LAW AND JUSTICE (SHRI HANSRAJ BHARDWAJ): That is the argument made by you people in the Supreme Court plus that lady, Shrimati Jaya Bachchan. (Interruptions)...

SHRI RAM JETHMALANI: What do you mean by "you people"?

SHRI HANSRAJ BHARDWAJ: Some of you have argued like this.

SHRI RAM JETHMALANI: "Some of you" means you are one of us.

SHRI HANSRAJ BHARDWAJ: Either you or Shri Fali Nariman, these are the two people who argued this. That is unfortunate. Now, you are blaming me that I divested Shrimati Jaya Bachchan of her membership of Parliament. Let me tell you that lawyers can argue in any way. But this is Parliament. Somebody argued like this.

SHRI RAM JETHMALANI: Sir, at least, seek a little postponement and put in a definition on "office of profit" and you say that on the basis of that definition you are exempting all these people from the disqualification created by the Constitution.

SHRI HANSRAJ BHARDWAJ: Will you yield? I have listened to you. Are you aware that this issue was discussed in the Forty-second Amendment and in the Forty-fourth Amendment? (Interruptions).. Let me now convince him. He is my senior colleague. When you speak extempore, there are problems. Let me tell you that you were very active in 1977 when Mrs. Gandhi, by Forty-second Amendment, put a definition like the one you have said that you only prohibit those institutions like the one in the English system and only those institutions are prohibited and kept it open-ended. The Morarji Government reversed it and said, "No". This is exactly what they have accepted and this is concurred to.

SHRI RAM JETHMALANI: Have I ever said that whatever Morarjibhai did was all right?

SHRI HANSRAJ BHARDWAJ: Let me tell you that though it has not been argued, the latest argument which Shri Fali Nariman has made is like that and you have this judgement from the Chief Justice of India. Now, various kinds of arguments were advanced by various people. The Supreme Court has said that now pecuniary benefit is enough to disqualify a person.

MR. DEPUTY CHAIRMAN: You can make that submission in your reply.

SHRI HANSRAJ BHARDWAJ: I am not an ignorant Law Minister. I have practised for 45 years. I have listened to all of you in the courts. This is a matter on which the Attorney-General was consulted three times by the earlier Governments. You must be aware of an English case where they also went into it to give a precise definition. But they said, "It is not possible having regard to the matter of policy. We will only, by a Resolution of the House, debar a particular post that will be exempted". In our case in India, if you read this Act carefully, this is the section. There are certain prohibited classes and offices... (Interruptions)...

SHRI RAM JETHMALANI: Mr. Law Minister ... (Interruptions)..

MR.DEPUTY CHAIRMAN: We will finish the speakers and then you can bring all those things in your reply.

SHRI HANSRAJ BHARDWAJ: Anybody can be delivered summons.

SHRI RAM JETHMALANI: Sir, what I wish to say to the hon. Law Minister is that the English Parliament is not subjected to article 14. They have no Constitution of our kind. So, they can do whatever they go on doing. We, here, have to have a legislation which meets the criterion of discrimination. Have some rational criterion of discrimination which must be apparent from the Bill or should be apparent, at least, from the Law Minister's speech. Make your speech and say something in it so that we will justify it before the judiciary. Thank you very much.

(Ends) (Followed by 3G/VK)

VK-NB/3G/4.15

SHRI DINESH TRIVEDI (WEST BENGAL): Mr. Deputy Chairman, Sir, for a moment, I thought that I am sitting in a court of law.

MR. DEPUTY CHAIRMAN: Court of lawmakers.

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פ ס־ : ֳ֯ן , ֟ ױ ֟ և , ֵ֤ ָ Ӥ ֲ ָ֕ , ׻֋ ִ ֛ օ Sir, as far as I am concerned, again going by the spirit, it is an open-and-shut case. I am not getting into the depth of it as to what is the definition of Office of Profit or whatever it is. What is the case? The case is very clear that there are about 40 Members of Parliament. This is as per the Statement of Objects and Reasons, as per the definition. There are 40 Members of Parliament. This figure of 40 reminds me of one story. In my childhood, I read 'Ali Baba and... whatever. (Interruptions). It is just a coincidence. I am not using the word *. I am just talking about Ali Baba.

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When we come to this House, we take an oath of allegiance to the Constitution of India. Sir, today, I am here on a call of duty to review and revive and affirm that faith to the Constitution of India and today the Constitution of India does require right thinking people to defend the spirit of the Constitution of India.

ֳ֯ן , ֕ þ ֻ ֤ á ֛ ֤ He never went into any kind of details that there is a train accident; whether it is an Office of Profit and am I supposed to resign, etc. He never consulted any lawyer. His conscience said that he is duty bound; he is accountable to the people of this country. He said, "Although I was not the engine driver, I take this accountability and I resign herewith." I certainly have no hesitation in complimenting those Members of Parliament who had the courage of conviction and said, "If

---------------------------------------------------------

* Expunged as ordered by the Chair.


this is the law and if I am on the wrong side of the law, it calls upon my duty to resign and seek re-election." So, I definitely would like to compliment such Members of Parliament. They, at least, had the courage of conviction to stand up and be counted. (Contd. by 3H)

RG/4.20/3H

SHRI DINESH TRIVEDI (contd.): Kapilaji was there. Like, one of the earlier speakers mentioned, in four days' time, she also resigned. Definitely, the President of the Congress (I) Party went and said, "Yes; I will stand for another election." She did so because she felt that they were on the wrong side of the law. Now, why is this Bill being brought? The objective clause is so very clear. If this Bill is not brought, then, more than 40 Members of Parliament will have to face certain disqualification. I don't want to repeat what Arun Jaitleyji said. But it is an open and shut case. Now, does this country have two sets of law? This is what I wanted to ask. And, this is what my friends outside ask: Does this country have two sets of law? One set of law is for Parliamentarians and the other set of law is for the common people on the street. If a common person on the street is caught violating any provision of this law or any law, he is told that the law will take its own course. What are we doing here? We are changing the course of law because we are mightier, we are stronger, than the common man on the street! Like my friend, Digvijayji said, 100 crores of people are watching us, and I am sure, in the days to come, they are not going to pardon us. They are going to tell us, "We have sent you to Parliament not to protect your interests. We have sent you to Parliament to protect the interests of the country and to protect the interests of the poor citizens of India." But, here, we have the exclusive club of our own, and we get into technicalities as to what the office of profit is and what the office of profit is not. At least one thing is very clear that by naming all such offices in the Table and in the Schedule, you have accepted that these are the offices of profit, and those people who are having those offices of profit are, definitely, going to be disqualified. So, it is an open and shut case. But since the law was a catching point, that is why, you are in a mighty hurry to pass this law. Sir, we have had people sitting in the high pedestal, in high positions, which are constitutional positions, giving sermons day in and day out on morality. May I ask: What has happened to their morality? Where have they gone? Why do they want to hide behind the provisions of this particular Act? They are not only lawmakers; but some of us, who are here, are eminent lawyers as well. Sir, when we are looking at the definition of the Office of Profit, I will give you one example. I know I don't have much time and I will conclude. In the year 1962, there was a very interesting and a unique case. Maybe, my friends, who are here, want to update themselves. This case pertains to the constituency of Burdwan. The reason why I am talking about is to what extent the Supreme Court and the framers of law are extending this definition. One gentleman, in the name of Guru Govind Basu, contested the election from Burdwan. After winning the election, his opponent, Mr. Sankari Prasad, challenged his election. And, why did he challenge it? He challenged it on the ground saying, "You are an auditor. You are a partner in an audit company, and you have been appointed auditor for the Steel Authority of India and some such Governmental organisations. By definition of that, you are receiving some kind of favour, some kind of remuneration from the Government."

(Continued by 3J)


3j/4.25/ks-hms

SHRI DINESH TRIVEDI (CONTD.): "The appointing agency is the Government. The dismissing agency is the Government. The test of an Office of Profit is this. So, you will have to vacate". He was disqualified. To this extent, the definition of an Office of Profit has gone!

Bhardwajji, it is your birthday today. Like everybody else, I do wish you many, many happy returns of the day. But, Sir, today, certainly, I feel, is a black day in the history of democracy, not because it is your birthday, but because of the Bill which you have brought forward in this House. I don't think, Sir, this is a Bill. This, ultimately, is a statement of confession, and the statement of confession is, "Yes, we have committed this crime but we want to circumvent the law and we want to ensure that these people, who otherwise are going to face the music of law, are protected". This is a very clear confessional statement and I don't think this is a Bill either.

Lastly, I will tell you, whenever anybody becomes a Minister, he has to take the oath. When he takes the oath, what does he say? I will read it out. The last two lines that he says are, "...and that I will do right to all manner of people in accordance with the Constitution and the law, without any fear or favour...". Sir, if I may say so, you have favoured all those forty-plus MPs who are otherwise going to get disqualified by your own admission. And, Sir, you have fear also. You have a great fear of losing your power, of losing the Government, and losing your Ministry, if I may say so.

MR. DEPUTY CHAIRMAN: No. (Interruptions)

 

SHRI HANSRAJ BHARDWAJ: Sir, this is an accusation. (Interruptions) MR. DEPUTY CHAIRMAN: No, no. I think that is not the... (Interruptions)

SHRI HANSRAJ BHARDWAJ: I mean, don't make it a personal debate. I am not losing my seat. (Interruptions) I tell you, I have great regard for all of you. But why start speaking about... (Interruptions) It is precisely because of the Trinamool effect in you, Mr. Trivedi, that you are opposing it. Because you are against the CPI-M, therefore, you are speaking here this kind of * .

SOME HON. MEMBERS: No, no. This should not go. (Interruptions)

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ֳ֯ן : ׮ֻ פօ ...(־֮֬).. That has been removed from the record. (Interruptions)

SHRI YASHWANT SINHA: Sir, let it remain. We can remove from the record anything which is in bad taste. This is in very good taste. (Interruptions)

SHRI HANSRAJ BHARDWAJ: Yes, you can remove it. But are we gaining or losing anything here in discussing it? (Interruptions)

MR. DEPUTY CHAIRMAN: It has been removed. (Interruptions)

SHRI DINESH TRIVEDI: Sir, I stick to what I have said. It is not I who has said it. Mantriji is on record. (Interruptions)

MR. DEPUTY CHAIRMAN: Mr. Dinesh Trivedi, please.

SHRI DINESH TRIVEDI: Sir, they have been disturbing me. Now, let me have my say. The hon. Minister is on record saying that if he did

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* Expunged as ordered by the Chair.


not come up with this Bill or if the Government did not come up with this Bill, then, there would be a certain litigation and expulsion of Members of Parliament. So, I again reiterate that he and the Government has done it to favour a few people. This favouritism is not

acceptable. And definitely, like a lot of my colleagues have mentioned, there is a fear. The fear is that the support from the Left is going to be withdrawn. So, there is a case of fear and there is a case of favour as well. (Contd. by 3k/tdb)

TDB-PSV/3K/4.30

SHRI DINESH TRIVEDI (CONTD.): Sir, I would like to make a technical point as well. My lawyer friends will bear me out, I am not a lawyer.

MR. DEPUTY CHAIRMAN: Mr. Trivedi, you said that you are concluding.

SHRI DINESH TRIVEDI: Sir, I will conclude in one minute. I have given you my words. I will. Sir, when a Member of Parliament who is certainly not qualified by the clause of Office of Profit, the day when he takes the oath -- and I challenge, I will challenge it in the Supreme Court, perhaps, I will take the help of the eminent lawyers here -- his oath itself was null and void. You might have brought this Bill, but I am going to challenge the very oath because he was not qualified to take that oath as a Member of Parliament.

Sir, I again appeal to this Government that there is no harm in accepting something which is not right. Please reconsider this; please take this into the Committee of Ethics. The reason why we have been giving example of one gentleman who had to go out of the Parliament, and we all, including me, supported this. He even asked for a legal assistance, which was denied to him. His fundamental rights were denied to him because we said that the dignity of this House has been brought to compromise. Sir, I dare say that if that has been brought to compromise, the dignity of this House could have been compromised in a wholesale manner, and I strongly oppose this Bill. (Ends)

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SHRI SHARAD ANANTRAO JOSHI (MAHARASHTRA): Sir, I get only a few minutes, and I would not like any part of those few minutes to be wasted by noise of this type. Mr. Deputy Chairman, Sir, when Mr. Arun Jaitley opened the debate, he brought out two major issues. One was, the constitutional issue of the independence of the Legislature and the independence of this Parliament. Does the Parliament remain inhibited because there are Offices of Profit which are at the mercy of the Executive. That was the question that he raised. The second point was the ethical or the moral issue, whether a Member of Parliament, having an Office of Profit conforms to the high moral standards that are set by this House. Unfortunately, the whole debate drifted away from these two points, and sort of deteriorated into comparisons between two very highly popular dynasties in this country - one in the field of Bollywood, and one in the field of politics. And, it appeared as if there was going to be a contest between the Gandhis and the Bachchans. I don't think that was really the point at all.

Sir, the Session before last ended on a very high moral note, and we decided all together that one of the Members of this House should be disqualified. I am gratified that I voted even at that time against that decision. And, very soon after that, when it was pointed out that if you permit this kind of a disqualification, soon it will be used by a ruling party with wafer thin majority to develop into a solid majority by disqualifying members of the Opposition parties. (Contd. by 3l)

kgg/3l/4.35

SHRI SHARAD ANANTRAO JOSHI (contd.): That was not taken seriously at that time, but by the end of the next Session, that is, the last Budget Session, we saw a complaint made against a particular person--and I mentioned the two dynasties--and the person was disqualified here, and then there was a whole unseemly situation of the House being adjourned sine die and talk of a notification being brought in order to save some high personality.

It was bad blood created and, soon after that, the leader of the UPA set an excellent example by not going into the legalities but by simply deciding by her inner voice that it was not proper, she resigned the post of Member of Parliament, she resigned the offices of profit that were involved and came in the political arena and she created a sort of 'cleansed atmosphere'. At the same time, Jaya Bachchanji went to the Supreme Court and the Supreme Court upheld her disqualification and then came this Session where the Bill is being brought. I think, what Sonia Gandhiji did and what happened in Jaya Bachchan's case makes it very clear that there is no case for, or there is no justification for exemption, exoneration or amnesty for any person. If Jaya Bachchan had to pay for it, then there is no reason why others should be allowed to go scot-free, or, alternatively, if Sonia Gandhiji, as Ram Jethmalaniji mentioned, underwent a penance, then others will have to undergo the same penance.

Sir, that created a sort of expectation that we will have a kind of principled decision on the subject. What we have got is a list of amnesty! We have not tried the people, we have not provided charges against them, but we are introducing a unilateral list of amnesty saying that these people have been declared as innocent. I am very frightened of this kind of open-ended list. Farmers in India have suffered when the first Constitutional amendment was brought and the right to property was restricted. And, we introduced Schedule IX and since then, the Schedule IX, which is very comparable to clause 3 of this Bill, has been expanding ever since, encroaching upon, particularly, the rights of farmers as regards their property rights.

The amnesty list does not include any post which can be linked up to any qualities that a Parliamentarian may have. For example, he may be allowed to hold a post or office where he can pick up something which would be useful in his Parliamentary career, or he can be given an office where his particular qualification might be used. For example, if Shri Kasturirangan is appointed in a particular post, then nobody can raise an objection because you do not have ten Kasturirangans in this country. But the list that has been given, as Arun Jaitley said, has a face behind each list and this is, in fact, an amnesty. I am sorry that this is very unjust to the law abiding citizens who, at the time of elections in 2004, probably, decided not to contest elections because they were aware of the law and they knew that because of office of profit that they hold, they were not qualified to even contest the elections to the Parliament and, therefore, they abstained from contesting the elections. While those who thought that they will be able to somehow navigate through the legalities and keep their post have come here and are now finding a way out in this Bill. It is a very unsatisfactory way of dealing with it.

Mr. Deputy Chairman, Sir, I would like to propose to the Minister that there are two ways in which the problem can be solved. The first way is what I would call the Jaya Bachchan way: For those who have infringed on the law, there is no excuse; there is a law and you have to go, whatever be the consequences; as regards the electoral expenditure, that has to be met because we have to uphold the high standard of morality of this House. The second alternative is what I would call the Jaipal Reddy alternative that he applied in the case of Delhi demolition. We do not know what the position is.

We heard very lively altercation between two legal pandits, but we are even more confused and that would be a case for a more detailed study. (Contd. by 3m)

KLS/AKA/3m/4.40

SHRI SHARAD ANANTRAO JOSHI (CONTD): We can just freeze the position as it is - do not disqualify anybody, do not send anybody out, but do not exonerate them either. Let us keep this position for two or three years, until next the elections come. Let us study it carefully. To Delhi tenements we gave one year. Let us give to the parliamentarians three years, and by the end of three years when the next elections are due, let us prepare a complete law which will be strictly applied to those who file nominations at the time of next elections. One of the two methods has to be used. What is being done now is a knee-jerk reaction to save some people. I would not go to the extent of saying that this is for saving the present alliance and the political game. But what I would say is that this is certainly a knee-jerk reaction and knee-jerk reactions do not build great institutions. This has been a great institution so far and I would urge upon the Law Minister not to start hurting great traditions of this Parliament on his birthday. Thank you very much. (Ends)

׮ ֵ (׿ִ ֻ) : ֳ֯ן , ֕ ו ײֻ ֓ , ִ פ ֋, ָ ֳ֮֕ ֤ פ כ ׸ ֓ - ׮ כ , دϙ כ ֯ ֓ ꅠ ֻܵ ָָ , ָָ ׾ָ , פ ָָ ֻ , ֻܵ ï™ , ï™ Ӥ ֲ֮ ׻֋ ױ ֱ ױ ָ ֟ ֻ ֳ֮֕ ֤ ָ ֮ ֻ ֋ ֟ և , ָָ ֻ 2004 ֵ֮ ֕ ݕ괯 ߠ ֟ ָָ Ӥ ֮ ׾֮֬ ֮ ֻ , ִֻ ï™ ָ ָ ֕ ײֻ ֮ ֛ ֕ ֟ ִ ֵ , ֻ ãן ָ-ָ ָ ï™ ֋, ï™ ܵ ױ ֱ ױ , ֮ ֋, ֮ ֋օ ֟ ָ Ù ָ ֮ ֋, ֕ ֕ , ָ օ ָ ֤õ , , ֮ ֛ , ֟ ָ ׻֋ ִ ֟ ו֮ , ֮- ֙ ֙ ֙ -֡ ױ ָ ֮ ֛ -׾ָ֓ ָ, ֙ ֙ , ֻ ֮ דֻ֋, ֮ , ֙ ֯ ׻֋ ֙ , ֯ AICC ָָ֮ ָ ־ ֛ ֛օ ֮֯ ֤ ָ פ ָ ֮ פ ָ , ׌֟ ֮ؓ֟ -֡ פ, ֓ ִ֤ ֓ ֋Ӆ ׻֋ ָ ײֻ ֯ ݕ괙 , , ֤ ܵ ֲ , ׾֮֬ ӿ֮ ܵ ֲ , ֲ ֻ ָ ָ ָ ׸, ꌿ֮ ߿֮ ׸ ֤ ֻ ('3N/SCH' ָ ָ)

SCH/4.45/3N

׮ ֵ (֟): ׻֋ ֯ ׮־ ֻ ֕ ֯ פ ׻֋ ֓ , ֲ ܵ , ï™ , ֲ ֯ ֓ ֋ꅠ ֮ פ ֟-֟ ֋, ֟ ֮ ֋ ֮ ֮ ֻ ׻֋ ָָ ָ ß ָָ ֣ ֳ ״ֻ , ֲ ֣ ֟֓ߟ ִ ן ֮ ײֻ ӿ֮ ֵ ֋, וִ ֟ ï™ ױ ױ ִ ֮ ֮ ָ ָָ ֮

ָ ֟ ײֻ ֕ ָ ֵ , ֻ ֕ ײֻ , ֵ֤ ֋ , ײֻ ָ ֓ כ ִ֬ ׸ ֕ ֻ , ֲ ֤ ׸ , ֵ֤ ׸ ֮ ׮ և , ן ן , ֻ ֮ ֻ פ ֤ ׾֮֬ ֮֟ , ָ ָ ֮ ֣-֣ ֯ ֳ ָ ӿ֮ ß־ ܵ ֯ ו֋ פ ߕ ׾֮֬ Ӥ ֋ ָ ִ ï™ ֺ ֛, ӳ־ ׻֋ ֟ ָ ֮ פ ֋ פ ߕ ׾֮֬ ֟ , ï™ ֺ ֛ ֲ ָ ָ ֓ ׻֋, ׾ָ֓ ׻֋ ־ ֤ ֮֓ ׻֋, ָ ֮ ֛ ֿ ֟ ָָ ָ ӳ߸ ׾ָ֓ ֳ ֮֕ן ֣ ֓ , ן ֯ ӿ֮ ß־ ֋, ײֻ ִ֣Ԯ , ֕ פ ֺ ׻֋ ß־ , ָָ ֮, ֟ ֮ ֮ ֟ ִ֯ (ִ֯)

֤ ߕ ֿ (֮ Ϥ): ו̕ և ָ , ׮Ù ֙ כ ָ ײֻ ִ֣Ԯ ׻֋ ֛ ו ֌ ִ֣Ԯ ֟ , ֮ ׸֮̾ , ׸֮̾ ֛ߋ ߕ ֣ , ֮ ,

և ָ ָ, ײֻ ֵ , ֕ ך ֻ ׻֋ ֵ ٙ 102 46 ֯ߕ ̤ , ׻֋ ײֻ ֲ ٙ 102 Ӥ֕ ֵ, ֤ օ ֤ ָ֮ ֤֮֕ ֻև ֻ֮ أ ָ ֋ ֱ ִ ָ ֋, ٙ 102 ׻֋ ֵ օ ֲ ָ ֈ؛ ֤ ٙ 102 Ӥ֕ , ֲ ֣-֣ ݕ̴֮ ו̕ ֕ ݕ̴֮ ו֕ ߕ ֱ

ָ ײֻ ִִ ̸ ֵ֟ ߕ , ֮ ִ ָߕ ׻ , ֮ ֛ ֟ , ױ ִֻ֯ ֈֻ כ, ׸וֵ Ù ײָ, ׻֋ ô և ָ Ù և , ӕև ָ ֋

״׮Ù ֲ ײֻ ָ ֟ , ֲ ֕ ֌ ֺ , ׻֋ ֌ ֺ ִ֮ ֻ ֟ ײֻ MCM/3O ָ ֿ:

-SSS/NBR-MCM/3O/4.50.

֤ ߕ ֿ (֟) : ֣-֣ ߮ ָ ֟ ִܾ--ܾ ָ י֕ ִ֟ ױ ֱ ױ ױ׮ֿ֮ , ׻֋ ִ ô әׯϙ֮ ִ֟ ִֻ ִִ ״ֻ ׻֋ ׌ֆ ױ׮ֿ֮ , , ß֮ ß ׮ֵ ֲ ֛ ׸ Ùߙ֮ ִ Ӥ , וִ ָ ׸ ָ ֙ - ׮Ù ֙ ֱ כ ָ 같 ٙ ִ ׾ָ֓ ״ֿ֮ ־ Ӥ֕ ֮ ִִ ٙ ״ֻ ָ , ֲ ־ ֮ ֮ ָ ֕;ߕ ֮ ִ ֋ ևֻ ֣׸ , ٻִֵ Ù ֋, ꌿ֮ ߿֮ ֱ օ ֟ ײי ٻִֵ ֈ כ ׯ׮ֵ֮ ֋ ָ 000 ֣ ײֻ ֱֻ ֤ פ ָ ֓ ֻ ֓ ָӛ ֮ ֋ וִ ױ ִ ױ ֕ ֟ ֱֻ ? Ӥ֕ ֟ Ù כ ױ ֕ ֟ ֻ Ӥ֮ دֻ֯ Ù ֯׮Ù ֮֟ ֤֮ ָ ֵ ߅ ָ, ߕ ô כ-׻ױ֮ , Ù׻ֵ ײΙ , ָ ָ ֱ כ-׻ױ֮ , ָ ֮߮ ׬ָ ׻֋ ֺ ֟ ߕ Ùߙ֮ Ù ִ ־ ָ ֋Ӆ

ָ ô ִ ָ ֟ ָ ֋ ױ ִܾ--ܾ 40-50 Ùߙߕ և-ꌿ֮ , ֟ ׻֋ ֟ ׮֮ ֣-֣ ֲ ײֻ Ù ִ ־֮Դ ָ ָ ָ׿֯ ֮ ֻ֮ әÙ ָ֕ ֣-֣ ֻ֮ ևָ ִ ֮ ״׮ִִ ִ ߴ օ ִ֟ ִ ֺ ׻֋ ָ , ֮ ״׮Ù ߻ ִִ ߕ ִ֮ ֟ ־ ִ֮ 녠 օ

(ִ֯)

THE MINISTER OF LAW AND JUSTICE (SHRI HANSRAJ BARDWAJ): Mr. Deputy Chairman, Sir, I am very grateful to all the hon. Members who have spoken on this very important subject. Sir, it is important in two ways. There is a lot of public information, but is not available not only to the hon. Members but also to some media members. An atmosphere is being created as if this is something wrong. Some hon. Members have used the word 'immoral', 'unethical' and 'unconstitutional.' I would not comment upon whether they are ignorant about law or they have not properly updated their legal knowledge. But, I simply draw the attention that this issue has occupied the attention of this august House, this Parliament since the inception of the Constitution. (CONTD. BY USY "3P")

USY/3P/4.55

SHRI HANSRAJ BHARDWAJ (CONTD.): And, those leaders who were party to the 42nd Amendment of the Constitution as well as 44th Amendment, would see that that will reflect the diverse views of the various constituents of the Government in 1977 and now. I would only submit, if you permit me, that immediately after Independence, the first law which was enacted was with regard to Prevention of Disqualification Act. Thereafter, a difficulty was felt that the 'office of profit' must be defined, and that definition must come in the Constitution because the main article in the Constitution, that is, 102, which I will with your permission read, says, "A person shall be disqualified for being chosen..." The 'for being chosen' means before the election, at the time of election. So, this disqualification will hit the nominations, as being chosen as a Member of Parliament, and for being a Member of either House. So, there are two stages -- one, when you are going for getting elected; if you are a holder of an office of profit, your nomination will be rejected, but if you become a holder of an office of profit after getting elected, then, you will be disqualified as well. So, to get over this problem, in 1976, an amendment was made in the Constitution, which made a provision expressly, of only those offices which by law, as office of profit, are prohibited by Parliament. So, a list had to be drawn of the prohibited offices under the 42nd Amendment. This consistent with the UK Disqualification Act provided that only those holders of office will be disqualified, as have been passed by Parliament expressly that these are the offices which will be held as office of profit. So, this view was not acceptable to the Government in 1978. They reversed this. What we have, today, in the Constitution is exactly what was in 1978, adopted. And, this continues to be the position. Article 102 lays down condition for disqualification that if office of profit, under the Government or the Government of a State is held other than declared by Parliament. This is where all the hon. Members must know, and it is here we derive power and competence. 'Office declared by Parliament', I repeat, "declared by Parliament by law not to disqualify". So, Parliament has to make a law to exempt those offices, not to disqualify the holder of office. There is no positive definition of 'office of profit'. It was tried once, but some of the Members sitting on that side, who might have been in the then Janata Dal Government, did not like that definition, which was an easier method of dealing with this problem, and they resorted to this. Now, it is the duty of Parliament, the Government so feels, to consider this issue. Parliament has a responsibility to discharge that when you want to exempt certain holders of office you can come to Parliament. Parliament is competent to pass a law, exempting certain persons who are holders of office. Who are those holders, and why this has been exercised, I want to hear those Members who were criticising saying, "I am doing something unethical on my birthday". I mean, this is the way they have lightly treated this subject. I am surprised -- I haven't seen during my long career in Parliament -- that such irresponsible statements are being made by Members of Parliament. I am citing that the Government of Morarjibhai, in which Mr. Advani was a Minister, Mr. Vajpayee was a Minister, they brought this provision, not me. And, you are criticising that it is unethical to follow this provision of law!

(Contd. by 3q -- VP)

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