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USY-MP/1Z/2.30

The House re-assembled at thirty minutes

past two of the clock, MR. CHAIRMAN in the Chair.

 

THE PARLIAMENT (PREVENTION OF DISQUALIFICATION) AMENDMENT BILL, 2006

 

MR. CHAIRMAN: Now, we will take up the Office of Profit Bill for discussion.

׾ֵ֮ יָ : ֳ֯ן , ָָ ֟ ו֋, ױ ֯ ־ã , ֻ֮ ...(־֮֬)...

MR. CHAIRMAN: Hon. Members, before the House takes up the next item, that is, reconsideration of the Parliament (Prevention of Disqualification) Amendment Bill, 2006, I have an observation to make.

As the hon. Members are aware, hon. President, while returning this Bill, has desired the Parliament to reconsider the Bill:

In the context of the settled interpretation of the expression 'Office of Profit' on Article 102 of the Constitution, and

the underlying Constitutional principles therein.

Hon. President has also desired that while reconsidering, among other things, the following may be specifically addressed:

Evolution of generic and comprehensive criteria which are just, fair and reasonable and can be applied across all States and Union Territories in a clear and transparent manner;

the implication of including for exemption of the names of offices the holding of which is alleged to disqualify a member and in relation to which petitions for disqualification are already under process by the competent authority; and

soundness and propriety of law in making the applicability of the amendment retrospectively.

I would, therefore, urge upon the hon. Members to focus on the issues referred to in the President's message, while participating in the debate.

Hon. Minister may now move the motion. ...(Interruptions)...

SHRI DINESH TRIVEDI (WEST BENGAL): Sir, I don't understand why this Bill is so important. ...(Interruptions)...

THE MINISTER OF LAW & JUSTICE (SHRI H.R. BHARDWAJ): Sir, I move:

"That the Parliament (Prevention of Disqualification) Amendment Bill, 2006, as passed by the Houses of Parliament and returned by the President under the proviso to article 111 of the Constitution, be taken into consideration".

 

Hon. Chairman and Members, The Parliament (Prevention of Disqualification) Amendment Bill, 2006 was considered and passed by this House on 17th May, 2006. (Interruptions) The Bill, as passed by both the Houses of Parliament, was sent to the hon. President for assent on 25th May, 2006. (Interruptions) The hon. President returned the Bill on 30th May, 2006 with a message to the Houses for reconsideration of the Bill under the proviso to article 111 of the Constitution. The message of the President was published in Rajya Sabha, Parliamentary Bulletin, Part II on May 31, 2006. (Interruptions)

SHRI DINESH TRIVEDI; Sir, why is this Bill important than the lives of so many people. (Interruptions)

MR. CHAIRMAN: Nothing else will go on record. (Interruptions)

SHRI DINESH TRIVEDI: Sir, since...(Interruptions)...I am staging walk- out.

(At this stage the hon. Member left the Chamber)

SHRI H.R. BHARDWAJ: Sir, the President, in his message, directed that while reconsidering the Parliament (Prevention of Disqualification) Amendment Bill, 2006, as passed by both the Houses of Parliament, the following issues may be specifically addressed, namely:

3.           Evolution of generic and comprehensive criteria which are just, fair and reasonable and can be applied across all States and Union Territories in a clear and transparent manner;

(Contd. by 2a -- VP)

-USY/VP/2.35/2A

SHRI H.R. BHARDWAJ (CONTD.): (b) The implications of including for exemption the names of office, the holding of which is alleged to disqualify a member and in relation to which petitions for disqualification are already under process by the competent authority, and (c) soundness and propriety of law in making applicability of amendment retrospectively.

Sir, I may state here that the expression "holds any office of profit under the Government" occurring in article 102 of the Constitution has nowhere been defined precisely. Its scope has to be gathered from the pronouncements made, from time to time, by the Supreme Court and of the High Courts as to what constitutes the expressions "office", "profit" and "under the Government." The courts are of the view, I again repeat, the courts are of the view that a practical view, not pedantic baskets of tests, must guide the courts to arrive at an appropriate conclusion whether the concerned office is an "office of profit."

Sir, article 102 (1) (a) of the Constitution provides that a person shall be disqualified for being chosen as, and for being, a Member of either House of Parliament, if he holds an office of profit under the Government of India or the Government of any State, I may here then say, other than office declared by Parliament by law not to disqualify its holder. So, it is the Parliament which has the power to exempt those Members of Parliament who are holding the office of profit.

The Constitution of India demarcates the legislative powers between the Union and States to deal with the disqualification of Members of Parliament and members of the State Legislatures. The power of the State Legislatures, in respect of their members is contained in article 191 (1) (a) of the Constitution and, accordingly, State Legislatures have enacted the Prevention of Disqualification Acts for their respective States. Any attempt by Parliament to lay down generic criteria which will apply to the members of State Assemblies may be seen as an encroachment by the Parliament in the domain of State Legislatures.

Sir, the Parliament and State Legislatures have plenary powers of legislation within the fields assigned to them, and subject to certain constitutional and judicially recognised restrictions can legislate prospectively as well as retrospectively. There is a famous case in Rajasthan in which the Supreme Court gave its ruling. The Supreme Court in Kanta Kathuria versus Manak Chand AIR 1970 SC 694 held that article 191 of the Constitution itself recognises the power of the Legislature of the State to declare by law that the holder of an office shall not be disqualified for being chosen as a Member and for being a member of the Legislature. There is nothing in the words of the article to indicate that this declaration cannot be made with retrospective effect. The word 'declared' in article 191 (1) (a) does not imply any limitation, Sir, I am laying emphasis on 'limitation on the powers of the legislature.' The declaration can be made effective as from an early date. This is the rationale of the law of 1970, Supreme Court.

The Government has, therefore, carefully and respectfully considered the message of the hon. President and it is of the view that the Bill should again be considered and passed by the Parliament.

Sir, I commend the Bill for the consideration of this august House.

The question was proposed.

MR. CHAIRMAN: Any Member desiring to speak may do so after which the Minister will reply. Shri Arun Jaitley. (Followed by 2B/PK)

-VP/PK/2B/2.40

SHRI ARUN JAITLEY (GUJARAT): Mr. Chairman, Sir, I am deeply obliged to you for giving me this opportunity on behalf of my Party to oppose the Motion and the Bill moved by the hon. Law Minister. Sir, when I start to speak, I have two deep regrets. One is with regard to the substance of what we are discussing. We approved something earlier, which was unconstitutional. The highest constitutional office in the country advised us. We are now on the strength of majority in this House as also the other House choosing to ignore that. The second regret is with regard to the manner in which we are discussing this. Sir, there are many a challenging moments in democracy where hard decisions are to be taken. But this is one Bill where there is something more serious than what meets the eye. When this House had debated this Bill on the 17th of May, I had, at that stage, while opening the discussion for my Party, said that that moment was probably one of the all-time low for Indian Parliament, where Parliament instead of legislating in public interest was legislating in self-interest. But look at the manner in which we are now legislating. Our Budget Session got a shadow of this Bill, and our Budget Session ended before schedule because some persons holding offices of profit had to be protected; and, because parliament was in Session, an Ordinance could not be passed; and, therefore, this House lost valuable time in the Budget Session because the Budget Session was preponed and adjourned ahead of schedule. Thereafter, a political controversy with regard to resignations, by-elections, etc. took place. We then --at least, we have the satisfaction, on this side, of having opposed this Bill -- approved this Bill. And, when we approved this Bill, we were reminded by the highest constitutional authority of this land that, probably, what you have done is not constitutional. We are now choosing to overrule him, and, while we are choosing to overrule him, we are not merely subverting the Constitution, there is, certainly, unrest on our side even on the manner in which we are doing it. We were discussing a Motion on the Mumbai blasts yesterday. Today, for some reason we decided to put that on the backburner, and, suddenly, took up this Bill. What is so sacrosanct about today, the 27th of July, that this Bill must be taken up in the Rajya Sabha today? Because 28th is Friday and it is not normally possible to do detailed legislative business; 29th and 30th will be Saturday and Sunday; somehow, this Bill must be approved today itself and that is the deadline, so that it can be approved by the Lok Sabha on the 31st. And what is the consequence of 31st? That the Election Commission has asked certain respondents including one of the State Governments, "please give your response in relation to certain offices". The substance of this Bill is that we are subverting the Constitution. The manner in which we are discussing it, we are subverting parliamentary procedures and giving a preference to self-interest of parliamentarians rather than the issue of terrorism which we have chosen to put on the backburner, so that on the 31st some of our colleagues in this House as also the other House can be saved. When I said that, when we took it up on the 17th of May, it was an all-time low. Today, Sir, we are compounding the matter further, that somehow all other issues in the country including the discussion on terrorism can wait but the right of parliamentarians to profit from offices conferred on them by the executives must be given priority. This, certainly, will not be a glorious moment for this House. Sir, at least, my Party has the satisfaction of having opposed this Bill from its very inception. I remember in the earlier round in May when I had given several reasons to oppose this Bill, I was taunted by the other side that my arguments were laughable.

(Contd. by PB/2C)

PB/2c/2.45

SHRI ARUN JAITLEY (CONTD.): I don't have the satisfaction today of the last laugh in view of what has happened in the last few months. But we all have this concern that what kind of an august body are we. We committed a constitutional blunder; we committed a constitutional monstrosity by bringing a legislation in the face of Article 102. We tried to exempt not offices, but our concern was to the holder of the offices who had to be protected. We were reminded by the highest constitutional authority that this requires reconsideration. Sir, never has this country seen such a disconnect between what the parliamentary majority is deciding and the will of the people. Sir, a few days ago, I saw on television a television poll saying -- and television polls let me concede are not representative enough -- can President overrule Parliament? The question was framed in a manner where the answer should have been obvious 'no'. But where are we taking our own credibility by legislations of this kind? Ninety-one per cent of the people on the television said 'yes; he should in a Bill of this kind'. That is the disconnect we are bringing between public opinion and what this House is deciding, and let us be very clear that there are not many occasions that we, in parliamentary history, get to correct the wrongs which we have committed. We repent over those wrongs; our future generations regret those wrongs. But this is a historic occasion where opportunity has revisited us, an opportunity has revisited us to tell us that public opinion is against you, media opinion is against you, the opinion of the highest constitutional authority is against you and all constitutional advice is against you. Please reconsider what you have done. I can understand, Sir, for want of understanding of constitutional niceties, we may decide and commit a mistake once. I can understand, Sir, that vested interests, at times, to save a Government in power or a coalition, may compel us to commit a mistake, but as for those who refuse to correct mistakes on being repeatedly told what are the mistakes you have committed -- at times, we wonder why is this being done -- is it merely because of the arrogance of power that this is being done? We are in power, we have the numbers, and because we have the numbers, we are in a position to decide anything, or, is it being done because we refuse to see reason or rationality or logic or lack the humility to give respect to another viewpoint, even if the viewpoint comes from the President of India?

Sir, we committed a constitutional misadventure. A sane advice has come to us from the President of India, and to respond to that advice, it is the arrogance of parliamentary majority which tells us, how can he decide? Is he a rival centre of power? Well, the President of India performs his constitutional duty. But, then, let me assure you, Sir, Indian democracy is not so fragile. The Indian democracy has many a safeguards, and amongst those many safeguards that Indian democracy has, the public opinion may be one, the right to vote out a Government may be another. Those who all cheer you when you walk to power are the ones who will be looking at you when you walk down from power, and only history will decide whether you have the last laugh or those people who are watching you have the last laugh. And, the Government today is so intoxicated with that arrogance that it is not thinking in terms of what those people who will watch them when they walk down from power are going to think. (Contd. by 2d/SKC)

2d/2.50/skc

SHRI ARUN JAITLEY (CONTD.): Parliamentary majorities are not immortal. The right to remain in power is not immortal. It gets shaken. With the kind of public opinion, media opinion and constitutional opinion that has been passed, I have not the least doubt that the time is not far away when this law will also be subjected to strict judicial scrutiny. And, if it is held to be violating many a constitutional provision, it may become very difficult to sustain such a law.

Sir, I recollect, in the last Session, we had supported the Government on the amendments to the Municipal Law. Even at that time, we had cautioned them that there is a presumption of a validity of law, but don't enact laws, which are so fragile that they fail in scrutiny sooner than later. Don't be under this arrogance that we are the sovereign and, therefore, we have all the powers. There are Parliaments in the world, which have complete parliamentary sovereignty, and they can decide anything. But, the sovereignty of Indian Parliament is conditioned in matters of legislation on two grounds. The first is, the Indian Parliament does not have absolute sovereignty. The Indian Parliament's sovereignty is subject to the legislative competence of the Parliament. It can legislate only in matters where it is competent to legislate; it is not the sovereign in matters that fall within the purview of the State Legislatures.

The second restraint that we have is, we cannot legislate on a subject that violates constitutional provisions. Our right to legislate, is, therefore, conditioned by that limitation. That is why, all our legislations have to stand, at times, the test of judicial scrutiny. That is how our democracy is made. Why did we support earlier and why do we now oppose this Bill?

Let us look at this Bill. The very basis of Article 102 has been that our Constitution is made on the premise of separation of powers. The Executive performs its functions, the Legislature performs its functions and the Judiciary performs its own functions. All the three wings function independently. The Executive is accountable to the Legislature and, when the Executive is accountable to the Legislature, to maintain the independence and dignity of the Legislature, Article 102 was brought into the Constitution. The Executive cannot confer benefits on you. If you are profiteering from the Executive, if you are beholden to the Executive, you lose your independence in the matter of the Executive being accountable to you. And, therefore, the Constitution has very clearly said that whoever occupies an office of profit, gets disqualified the moment he holds such an office. The holding of such an office was itself a disqualification.

We are now creating a large number of offices, as far as the Union is concerned, where you continue to hold those offices. Whatever we do now here will be replicated by all the States. So, you will have hundreds and hundreds -- it could also be thousands -- of offices all over the country, which would be in the category of exempted offices, and the effect of those exempted offices will be that the legislative bodies, and their independence, will be controlled by the Executive. This is because there will be thousands of legislators all over the country by such amendments, retrospective or prospective, who would be given benefits and offices by the Executive, and, therefore, their independence and dignity to question the Executive when it is accountable to them itself goes down.

This Bill, in its spirit, and in letter, goes against what is said in Article 102, but what are particularly disturbing are two facts. While deciding on this Bill, we decide to give benefits to certain offices -- the exemption benefits. And, when we choose these offices, what are the criteria. What was the intention of the framers of the Constitution? The intention of the framers of the Constitution was that a particular office may be an office of profit, but the office may require, by its very character, that a Member of the Legislative body should occupy that office.

(Contd. by 2e/hk)

HK/2e/2.55

SHRI ARUN JAITLEY (CONTD.): Then such an office would be considered as an exempted office. So, the exempted office and its character must have some nexus to the functions the individual has to perform. Therefore, conventionally, the offices we put in two places were Ministers, State Ministers, Deputy Ministers because they necessarily have to be MPs and MLAs. Then came a situation where benefits were being conferred on the Leader of the Opposition, on Chief Whips of parties, on Deputy Whips of parties. So we included them to say, let leaders of opposition, chief whips, etc., and all MPs and MLAs should be conferred benefits. I can understand that outside the legislature there could be some extraordinary offices wherein individual's experience as an MP or an MLA may be of great use. If such an office comes up, the Constitution envisages in Article 102 that such office could be put in the exempted category and this, Sir, is the principle ground on which my party and I believe, and most of all on this side believe, that this law is completely vulnerable. How did you decide the exemption? You did not decide the exemption on the basis that these are offices where MPs are necessarily required, so exempt them. The requirement of the office is such that an MP's experience will be of great utility. You decided this criteria on the basis that a large number of our colleagues, at present, are in violation of Article 102; they stand to lose their membership and, therefore, let us amend the law and let us protect these defaulters as of today. So, the nexus of this list of exempted offices is not to the requirement of the office, it is to the holder of the office for whom a privilege is being created. I want to save the present holder of the office because the stability of my Government depends on his support and, therefore, depending on who the holder of these offices, I will exempt him. Was this the object of Article 102 that exemption will have nexus to the holder of the office and not to the requirement of the office? If on such colourable exercise of power we start legislating and then we say that I am sovereign, who is the President to tell us rethink, why should courts interfere in all these matters, then, certainly if we choose to violate the Constitution, somebody has to just knock at the door and remind us that, yes, Parliament is sovereign and supreme in functions which it has authority, but over and above the Parliament, besides the people of India, there is the Constitution of India and, therefore, the mandate of this Parliament may include amendment of the Constitution except its basic structure. The mandate of this Parliament does not include violation of that Constitution and, therefore, if the Parliament chooses to violate the Constitution by creating first whole exemption, then, creating the list of exempted offices whose nexus is not to the requirements of the office but the nexus is to the holder of the office, then, certainly, Mr. Chairman, this law is something which should shake the conscience of every Indian and that is why in poll-after-poll overwhelming majority people say that Parliament's rights on this should be constrained. This is an extraneous debate. We do not accept that debate. But it is an extraneous debate, which has started. And then what do we do? We not only make sure we exempt these offices, we give everybody wholesale exemption since 1959. Now, offices are created in the year 2004, in 1993, in 1989, but the exemption is with effect from 1959. That is the drafting of this Bill. So, the President rightly says, "How are you exempting offices prior to the date of birth of that office?" Why are you doing that? And we say, sorry, we are in majority, so we are entitled to do that; we will just reconsider and say that we want this Bill back. This, Sir, is the dilemma that we face today. (Contd. by 2f/KSK)

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