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K/3.00/2F      

SHRI ARUN JAITLEY (CONTD): Let us pick up each of these 55 offices sought to be exempted by this Bill. Next to the name of each office, you can write the name of the individual who is sought to be exempted. If it is simply put, as my colleague Sushmaji said the other day, " ֤ ֤ ߔ , ֵ֓ " That is the essence in this Bill. And, they are wanting to create an exemption of this kind by exonerating people who have violated the law. Now, let us see the dichotomous situation which comes up. There are offices which exist. Let me give an example - Development Authority. Now, every city, every district, every township has a Development Authority. You have the Delhi Development Authority. You may have the Kanpur Development Authority, Jaipur Development Authority. So, if Development Authorities require MPs as Chairmen, then all the Development Authorities should be exempted, but we don't exempt all. We only exempt those Development Authorities where MPs as of today are Chairpersons. We only exempt those offices. Why should the Jaipur and the Ahmedabad and the Mumbai Development Authority not being exempted? Why should only Haldia and Santiniketan be exempted? For the simple reason, the current violators are the ones who are sought to be exempted, and by exempting current violators, the Government decides to use its majority to prolong its own longevity so that its own supporters don't get disqualified under article 102. To prolong its own longevity, it decides to exempt those people. But, then, another dichotomy comes in. There are offices created which if you occupy, you are exempted from disqualification from the Union Parliament. But, for the same offices, you are not protected if you are a Member of a Legislative Assembly. Now, let us see, Indian Institute of Psychometry, All India Council of Sports. Now, these are the offices which the Parliament has treated as exempted offices, but the Andhra Pradesh Legislature has not treated them as exempted offices. So, if you occupy these offices, and if you are an MLA in Andhra Pradesh Assembly, you will get disqualified. But, if you are a Member of Parliament, you don't get disqualified. So, the President then rightly says, "Are we having some uniformity in this matter or not?" Or is it an arbitrary pick and choose that only my current supporters are to be exempted and, therefore, I will abuse the legislative power and using my majority, have a legislation of this kind. Sir, it is on this reason that we decided to oppose this Bill. What does the President now remind us of? The Parliamentary Bulletin indicates some of the reasons why the President has returned the Bill, and I presume that the reasons, which are to be specifically addressed, are the ones that the President has reminded us of. The first reason, he says is, "Why should there not be a comprehensive criterion for the whole country?" Now, I can quite understand a comprehensive criterion. I read my friend Shri Sitaram Yechury's article in today's newspaper. Bhardwajji just now said the same thing. Office of Profit has not been defined. Who prevented you from bringing a legislation defining the Office of Profit? Office of Profit was not defined by the Legislature, but Office of Profit has been interpreted in dozens of judgements by the Supreme Court. Today, there is no ambiguity on as to what the definition is. But, if some of us are confused, let us not just give irrelevant and irrational reasons. Then, your Bill should have said, "My Bill merely is for the Centre". In Article 191 and Article 102, we give a uniform definition of the Office of Profit. You could have addressed the concern of the President by saying that there are a reasonable rational criteria all across the country where article 102 and article 191 give the same definition for the Centre and the States for an Office of Profit. Now, don't tell us in your opening comments that there is a need to define it. Mr. Yechury has very forcefully argued in today's article that because there is no definition, there is need for defining it. But, your Bill does not define it. The Bill is only an arbitrary selection of posts depending on 'my list of supporters today so that I can exempt them'.

(continued by 2g)

GSP/2G/3.05

SHRI ARUN JAITLEY (CONTD.): The second reason is, and, this, Sir, besides being questionable and colourable, is morally improper. What is morally improper can never be legislatively proper. There are persons against whom petitions are pending, persons who have already violated the Constitution and what does Article 102 say, you stand disqualified when you hold an office of profit. The disqualification of these Members took place on the day when they held office, the first day when they entered this office. The disqualification has already occurred. If anyone of them disputes it, it is only then, as per article 103, the Election Commission will make a formal declaration and the President will act accordingly.

So, the second objection of the President is that the disqualifications have already occurred. These offices should stand vacated. Petitions are pending under article 103 for declaring them as vacant. You now step in and say, I will retrospectively exonerate them by retrospectively changing the law. For retrospective legislation, you use Kanta Kathuria's case to justify. I think, a time will come where even that will have to be re-examined and revisited. But retrospective changes do not correct the moral wrongs. When you corrected the law retrospectively in 1975, the Election Law, you scored a technical win but you suffered a great moral defeat. Because you had to resort to that kind of an amendment by a retrospective legislation in 1975 to score a technical victory in validating an invalid election, you are now trying to validate those who have ordinarily vacated office, who stand disqualified; and, because they happen to be current Members, and, as a good fraternity, we must support each other, and, so we will help each other in retaining their memberships.

The third objection of the President is almost to the same effect; how do you have 1959 retrospectivity. The States are using different criteria; the Centre is using different criteria. Where are we moving towards, Sir? Sir, it is an easy trap to fall in and I can see this Government falling into this easy trap. Even independent of the President guiding the Government to come on track, we had a series of consultations with the Government. We told them that we are not going after somebody's blood. We don't want to destabilise the polity. If a wrong practice has come in and the wrong practice is to be undone, we advised the Government that there are several ways of doing it. Even if you want to condone the past, do you have the moral stature to say that this kind of practice for the future should stop? Consult political parties and do it.

Now, this is something over which, without destabilising the polity, we would have stood high up in public esteem. The Government would have stood high with pride saying that this was a bad practice. There was a bad practice continuing that in a House of 70, you could have 65 Ministers. This House and the Lok Sabha unanimously amended the Constitution and set 15 per cent limit. Anti-defection Law was passed. We then amended it further to do away with the split. These were all Constitutional reforms that various Governments have done and each Constitutional reform has served the polity well, and, this was an occasion to say that this kind of practice is going on in the past, we want to stop this practice and we want to correct for the future. We suggested to the Government, come out with some such proposal -- don't be under the presumption that we want to destabilise the Government and we want 50 of them to go -- we will speak to you, you will find a solution. We made positive suggestions. Sir, but I got an uneasy impression. What I have mentioned earlier, the arrogance of numbers adds to the arrogance of power and these two arrogances taken together itself were so intoxicating that those in power refused to see reasons. (Contd. by 2H/sk)

SK/3.10/2h

SHRI ARUN JAITLEY (CONTD.): And, when you refuse to see reason, I can tell you what the consequences will be. The consequences will be, one, I have said, public opinion is against you; you are committing a moral wrong. When the highest Constitutional authority is advising you to correct, the highest Constitutional authority is not a usurper. He is the highest Constitutional authority. And, Sir, my party believes, and I am willing for an open debate on this. I am sure, since it is a grey area, there could be different opinions, as far as this is concerned. What will happen now? Let us just see what the role of the President under our Constitution is. Under Article 79, the phrase 'Parliament' is defined not just as the two Houses of Parliament. Article 79 says, "There shall be a Parliament for the Union which shall consist of the President and the two Houses known respectively as the Council of States and the House of People". The President is an integral part of the Parliament. The Constitution so defines it. When we send a Bill to the President for assent, there are several functions the President performs, and while performing each one of them, the President has to keep utmost in his mind the oath of affirmation of office that he takes under Article 60. Let me read that oath of affirmation, "I solemnly affirm/swear in the name of God that I will faithfully execute the office of President of India and to the best of my ability preserve, protect and defend the Constitution and the law and that I will devote myself to the service and well-being of the people of India". The President is, to the best of his abilities, duty-bound to preserve, protect and defend the Constitution. He has taken an oath. There are functions which the President under Article 74 performs. He is bound by the aid and advice of the Council of Ministers. There are functions where he has to apply his own independent mind. Whom to invite to form the Government is a function where he is not bound by the aid and advice. Whether the Prime Minister in office has lost majority or not is an independent function. Whether nobody has majority and I should dissolve the House is his Constitutional function. And, when we send a Bill for affirmation to the President under Article 111, the Supreme Court says specifically, the President is not performing an executive function; the President performs a legislative function. In that legislative function that the President performs under Article 111, he has to make up his mind whether he must give assent or whether he must refer it back. While deciding whether to give assent or refer it back, the President does not go by aid and advice. If he is to decide to give assent, he gives assent. He is entitled to consult various people. He can consult Government; he can consult Parliamentarians; he can consult leaders; he can consult Constitutional authorities, and for that legislative function, he can even undertake a Constitutional consultation under Article 143. That is the job of the President. Then he can tender advice and say that this is what I feel. But now, the Parliament says we refer it back. If it refers it back, the President will have to consider what to do, because at the end of the day, the President will be bound to devote himself to any extent to preserve the Constitution. He cannot second time withhold consent. But, while in the process of deciding to give consent, he would still be entitled to take all efforts to make the Prime Minister, to make the Government, see reason to get the best Constitutional advice from various authorities, including the Constitutionally-provided advice and tell the Government that this is what it is. And finally, if the Government says sorry, we overrule everybody and every interpretation of the law, the President will have to perform his duty under Article 111 of not withholding assent. But, before he gives his ultimate assent, he should leave no stone unturned to protect the Constitution of India.

(Contd. by 2j-ysr)

-SK/YSR/3.15/2J

SHRI ARUN JAITLEY (CONTD.): That is the job of the President under article 111, and that is when the President is true to his oath under article 60. Sir, if the Government still chooses to say that it wants to go ahead, then, Sir, as I said earlier, not only will it be an all-time low for this Parliament, but it will be an all-time low for Indian democracy and for the Government also. Sir, we all understand -- none of us in this House was born yesterday that we cannot understand what is going on behind -- the significance of why the debate on the Bombay bomb blast has been deferred and the Office of Profit Bill has come today. There is something significant about Monday -- Monday is the 31st. The Election Commission wants replies by the 31st. My friends in the Left parties are not willing to give those replies. So, the Government is not willing to give those replies by the 31st. Therefore, not only is the Constitution to be subverted but also the parliamentary agenda is to be subverted. It is not a great day for Parliament, Sir. Let me remind my friends in the Left Parties that it is not merely a dispute of definition, because this law does not give any definition. If the Government merely wanted definition, as Mr. Yechury has very forcefully argued today, we would sit with them and work out a definition common to articles 102 and 191. But the object is to protect the present defaulters. Sir, every time I hear my friends in the Left Parties, I get one good feeling that I may be disagreeing with them, but from their ideological point of view, at least, they try and put forward what they want to say. They forcefully argue; they preach; and they pontificate. But then we expect them to be held by the standards which they have professed. They always want to hold the moral high ground. But because 17 or 18 MPs are to be protected, Constitution should be subverted, and parliamentary agenda should be subverted. For what? So that my MPs can have Offices of Profit.

Sir, I am sure my friends, Mr. Yechury and his colleagues, are better scholars of Marxism than I am, but the little that I know was that the hallmark of all exploitation was profit and the desire for profit. This is what Marx said, probably told the world.

Today, Sir, it is a matter of regret that the pre-condition for support is: 'protect my Office of Profit.' This is the opportunistic position the Left Parties have reduced themselves to. Sir, this is the sum and substance of this legislation.

In this live democracy, you could see, even when we participated in this debate, some of our colleagues were uneasy. Why are we saying postpone the Bombay bomb blast debate and why are we agreeing to your ruling? We should protest. So, we agreed to participate despite our protest in the matter. Because we did not want to give up this opportunity. The President has asked the House to reconsider it. We agreed, so that we should not be accused of having ducked the debate. Constitutionally, ethically, politically, and morally, the Opposition, Sir, is right; the Government is in the wrong. I have no doubt that the arrogance of this Government will compel it to approve of this Bill. The fragility of this Government, which is dependent on the support of the Left Parties and these 55 holders of Office of Profit, will compel it to support this Bill. But I have not the least doubt, Sir, that we have great faith in Indian democracy. When rulers decide to approve of such legislations, people know how to deal with such rulers. We will, at least, have the satisfaction of having gone back as dissenters. We will hold our heads high enough. But I can assure those in the Government that the last laugh on this has still not been seen. I have no doubt that this Bill, even after its passage, will have great difficulty in becoming a law. And if it becomes a law, it will face a near-impossibility in sustaining itself as a law. With these words, Sir, I oppose this Bill on behalf of my party. (Ends) (Followed by VKK/2k)

-YSR/VKK/2k/3.20

DR. ABHISHEK MANU SINGHVI (RAJASTHAN): Mr. Chairman, Sir, I am grateful for this opportunity to respond. I have heard my friend in rapt attention and despite the several fallacies of his arguments, each of his points require very specific response. 'Office of Profit' has acquired an acronym OoP, which is perhaps reflective of the chaos and confusion. If you pronounce that acronym OoP, the chaos and confusion is inherent in that acronym itself. But my friends on the opposite side are obviously trying to contribute more and more to that chaos and confusion. From a discussion on a Bill on the Office of Profit, they have repeatedly tried to convert it to a discussion on a Bill of perplexity and pandemonium. But, may I deal with the issues on three fronts? My friend challenged the manner in which this House is proposing to deal with the subject and to pass or not pass the Bill. And he, then, dealt with the merits of the matter. So, may I firstly start with the manner of passing of this Bill?

My friend referred to it being a bad day for Parliament. I ask him and his supporters: Is it very glorious for you to have participated, through no less than the Leader of the Opposition, in meetings which pre-decided that the Office of Profit Bill will be taken up sometime today and then, to renege on a commitment which your party's senior representative had made along with others? Is it fair and glorious for you to draw the equation in 'either-or' format -- either terrorism or office of profit where there is no mutual exclusivity between the two? There is no question of both not being important; there is no question of this House not discussing both. You heard the Minister a short while ago saying that we shall sit as late as we like to discuss terror which, of course, as you know well has been discussed yesterday in some detail. Therefore, where is the question of 'either-or'? Where is the question of a choice? As parliamentarians, as common sensical citizens and as lawyers, we know that there is nothing sacrosanct about 31st. If the Election Commission has given time five, seven or ten times earlier, it is entitled, in its own discretion, to give time. And, I don't think they are going to consult you before they give or do not give time. So, why do you interpose this hypothetical situation, create a red-herring that this House wants to discuss this now to prevent something happening on 31st or to have something happening on 31st. (Interruptions)

SHRI C. RAMACHANDRAIAH: That is the opinion of the nation. That has been reflected. (Interruptions)

SHRI N. JOTHI: Then, why are you piloting this Bill? (Interruptions)

DR. ABHISHEK MANU SINGHVI: Sir, I am sure if you have had the patience to hear your party Member, you will have the courage to listen to a different viewpoint. I am sure that you subscribe to Walter's view as parliamentarians that you disagree with me vehemently, but, will support my right to speak, and to speak in patience, without interruptions, if I may respectfully say so. Just as a few moments ago, we did when the hon. Member from your party was speaking.

(MR. DEPUTY CHAIRMAN in the Chair)

You talk of the manner of passing this Bill. Is it very glorious for you not to follow and not to support a repeated ruling of the Chair? That perhaps is your idea of parliamentary democracy -- not to follow the ruling of the Chair. (Contd. by RSS/2l)

RSS/2l/3.25

DR. ABHISHEK MANU SINGHVI (CONTD.): To obstruct the House or walk out of the House on other issues when both, terror and the Office of Profit Bill are liable to be discussed today, and shall be discussed today...(Interruptions)

׾ ֤ : ֯? ֲꌙ ָ ׻֋

ָ֕ : ֲꌙ ָ ׻֋ ..(־֮֬)..

ֳ֯ן : ֮ ו֋ ..(־֮֬)..ߕ, ֮ ו֋..(־֮֬)..

0 ׳ ֮ ֑־ : ..(־֮֬).. ָ ו ָ ֯ ָ ֮֮ߵ ָ օ օ..(־֮֬).. So, therefore, don't try to mislead the people of the country about the manner. The manner is the only democratic manner of passing it. On the contrary, if I may say so, you are responsible for obstructing the House, for delaying proceedings, for taking the valuable time of Parliament and painting a picture of 'either or' situation when none exists.

Coming now to the second issue which has been involved, and that is, the issue of Parliamentary passage of a Bill, Presidential assent or no assent, and the entire procedure of Article 111 of the Constitution. My friend to whom I listened with rapt attention, unfortunately, is guilty of fallacy upon fallacy, and let me list a few of the fallacies, and then, deal with them, one by one. His first fallacy is, implicitly right through his address, that Parliament does something wrong, if it even dares to discuss a matter, and then to pass a Bill, which has been returned to Parliament by the President; that is the implicit theme of his address, and that in doing so, Parliament is doing something unconstitutional, Parliament is doing something wrong, Parliament is doing something erroneous....(Interruptions)... That is implicit in what you said.

SHRI ARUN JAITLEY: Don't answer an argument which I have not addressed.

DR. ABHISHEK MANU SINGHVI: That is implicit in what you said because, you are painting a picture of Parliament versus the President, which equation is precisely not there. It is the same equation, which you painted, when you said a moment ago, either office of profit or terrorism.

...(Interruptions)...

MR. DEPUTY CHAIRMAN: Mr. Jaitley, please don't intervene.

DR. ABHISHEK MANU SINGHVI: Can I remind my learned friend that it is the equation of 'either or' which you are trying to paint in every situation? The third fallacy is, the party in Opposition, will say that the Bill is unconstitutional, and that will make it unconstitutional. By definition, an unconstitutional Bill should not be passed by Parliament. But, why is it unconstitutional? It is because you say so. As Alice in Wonderland said, "Something is wrong because, I, Alice in Wonderland say so." But, what is unconstitutional about it? Let me remind the hon. Member and his Party that, unfortunately, for you, and perhaps, for us, the entity which decides constitutionality, is yet to come into the picture, and it comes into the picture not when a document is a Bill, but, when it becomes an Act, and that entity is the Supreme Court of India. So, let us wait for the Supreme Court of India to pronounce it unconstitutional or to validate it. Let us not give an advance certification in a self-serving manner, and then say, it is unconstitutional, and we should not pass it. If this is so, then, you would be deciding it. But, unfortunately, for you, the interpretation of the Constitution is entrusted to the Supreme Court.

The next fallacy is that there are limitations on Parliamentary power, and as far as two limitations are concerned, I entirely agree with you. But, unfortunately, you have smuggled the third limitation. The first limitation is, the legislative competence, which is not an issue today, we are not transgressing or encroaching on any State power. The second limitation is that ultimately what Parliament passes, will be held or not held to be constitutional by the Courts. So, there is a limitation of ex post facto judicial review. But, let me remind the hon. Member and the Party he represents that there is no third limitation on Parliamentary power. Article 111 of the Constitution is certainly not that limitation. Presidential reference back is certainly not a third limitation. Article 79 is certainly not a third limitation. Indeed, my friend's argument suggests a complete vote of no confidence in the House and the Parliament to which he belongs. It suggests a vote of no confidence in the very institution of Parliament. But, let me remind you that merely because, for whatever reasons, you happen to be one of the few parties in this House which have decided to oppose this Bill, let not hard politics make bad conventions, bad precedents, bad law. You are dragging the President and the office of President into a political arena. In the last few days and weeks, I have heard with astonishment... (contd. by 2m)

-RSS/MKS/MP/3.30/2M

DR. ABHISHEK MANU SINGHVI (CONTD.): ...arguments that the President should not refer this Bill for advisory jurisdiction to the Supreme Court. I have heard, with astonishment, arguments that the President can or should override the Parliament. It was a topic of debate on television. I have heard issues as to whether the President can delay such matters. Why are these issues being raised? These issues are being raised because you have deliberately misled the nation and this House on the meaning and scope of Article 111 with which I wish to start.

Now, it is interesting to note that if you had done your Constitutional homework, you would have emphasised the last five words of this Article. And the last five words of this Article are so unusual as not to be found, virtually, in any provision of the Constitution, and virtually, in any other Constitution of the world. Those words, if I may remind you,--I am sure you have not forgotten it, but your community overlooked them in your addresses--are: "The President shall not withhold assent." Surely, we, you, the House, the President, the nation, are all bound by the words of this small book, which we call, the Constitution of India. And let me remind you of another part of your constitutional homework that these very five words were missing in the draft Article which came for approval before the Constituent Assembly. The Constituent Assembly, prior to Article 111, had before it Article 76. And if you read the books on this, you will find that Article 76, in its original form, did not have these crucial words. A debate arose, an issue was raised, and it was said that, ultimately, in this country, for right or wrong, for good or bad, we have adopted a constitutional system of parliamentary democracy under which, barring two or three exceptional situations, the President of India follows the system of a constitutional entity and does not rule but raise. He follows, by 400 years' precedents, broadly, the contours of the status of the Queen of England. And, therefore, the Article did not have these words. These words, after discussion, were inserted. What does that mean? For you it means that you are guilty, just now, of advocating a deliberate violation by this House of the intent of the framers. You want to violate the spirit and the letter of intent of those who framed this Constitution.

Coming to the third aspect of Article 111, Article 111 represents the Constitutional dialectics of give and take. In the Marxian terms, it represents the thesis, the anti-thesis and the synthesis. That is a Marxian dialectic. But there is a dialectic in this constitutional process also. The Constitution envisages, knows, and accepts, all along, that there may be situations where the Parliament and the President may differ; it does not mean that either is wrong; it does not mean that either is right. It only means that each is a high constitutional functionary and is entitled to the highest respect, the highest reverence and the highest consideration. But, ultimately, for those who decide, the framers could not have left it as two disagreeing institutions. So, having anticipated the potential disagreement between these two institutions, the framers created this mechanism and added a proviso to Article 111, and, indeed, the proviso did not have these words. But these words were added, precisely, to envisage the situation which you call immoral and wrong. And you suggest that the President, having spoken on it, this House cannot or should not debate it. The fact that I am debating this or the fact that you are considering it is not the slightest disrespect to the highest holder of the Executive office in this country. On the contrary, each and every concern of the President of India has been and must be taken into account. But will that attenuate or circumscribe the sovereign power of this Parliament, which has been entrusted to this body by the Constitution itself? Because if you say so, then you express a vote of no confidence in Parliament; you express a vote of no confidence in the Constitution; you express a vote of no confidence in those who framed the Constitution and express this intent so clearly, so categorically. But let me continue into how you have dragged the President into this political arena; very wrongly. You are aware that the President has a right to send it back for reconsideration. You are equally aware that we have a right to consider and, then, decide as per the wisdom of this House. (Contd. by TMV/2N)

-MKS-TMV-ASC/2N/3.35

DR. ABHISHEK MANU SINGHVI (CONTD.): The President chose to send it back. Let me say here that I totally disagree with your picture that the President in sending it back has written down that the Bill is unconstitutional. That is completely misleading again. Please see the President's referral back. There is no question of assuming that the President thinks or says or says that he thinks that it is unconstitutional. I will come to that in a moment. (Interruptions)...

SHRI N. JOTHI: He is a gentleman. (Interruptions)... He said it politely. (Interruptions)... He is a gentleman. (Interruptions)...

DR. ABHISHEK MANU SINGHVI: I am glad that my friend is using such good words. If you believe in those good words, you should not drag the President into the political arena. You should not have dragged the President into the political arena. (Interruptions)...

SHRI N. JOTHI: He used only gentle words. (Interruptions)... You have to understand it. (Interruptions)...

MR. DEPUTY CHAIRMAN: Mr. Jothi, please.

DR. ABHISHEK MANU SINGHVI: The President sends it back on a referral. The referral is to reconsider it by the Parliament under this article of the Constitution. While the matter is pending in the Parliament, while the Parliament is seized of the matter, while the President quite rightly, in terms of the Constitution, has left it for the time being to the Parliament, you chose to go to public and you chose to go to the President to suggest various alternatives to the President. Is this glorious? Is this correct? Is this a following of the Parliamentary procedure? Is this an adherence to high standards of public life or the Constitutional spirit? You could have waited for the Parliament to debate it. You tried to pre-empt.

I hear with equal astonishment, utter amazement, your suggestion that the President can and should refer it to the Supreme Court. For this argument, you pressed into service the office of oath. There lies another fallacy. But that fallacy has very grave implications. That fallacy is your premise that the President is entitled under the Indian Constitution to be a judge of potential legislation by referring to his oath. Now, forget this case for a moment because we tend to become exacerbated and excited about the facts of a particular case. But please appreciate the implications of what you have said. If this is correct, then every proposal, every Bill from Parliament can be judged by the President by reference to his oath. The President will decide by reference to his oath, according to you, not according to the President, that a Bill is unconstitutional, violative of Part III or it shockingly violates his oath and, therefore, having so decided, will not give assent. The Supreme Court is, of course, to become irrelevant. But more than that, there is absolutely no power under the Constitution and the President rightly recognises it and all our Presidents have rightly recognised it till now; but you don't recognise that the President has no power under the Constitution to refer and decide matters by reference to a third entity known as the "oath". This will convert our Parliamentary democracy, our Constitutional ethos and the spirit of our Constitution into a totally different field. It may be converted into a Presidential system, partly of the US kind, or it will make it a hybrid which belongs to no species or no category. But it will certainly do violence to the very basis on which our Constitutional structure is premised. So, your reference that the President should consider referring it to the Supreme Court is a deliberate mischief.

You are also equally aware of the fact that this question of what the President can and can't do arose in several situations. Ultimately, 22 or 25 years before from today, way back in 1974--it is nothing new; it was decided before 1974--it was conclusively settled to rest by the Indian Supreme Court that these questions of the President acting on his own under articles X and Y and being bound under articles A and B will arise frequently. It is a usual thing. Therefore, it arises. We must definitively settle this issue and decide in all the situations the President can act individually. In Shamsher Singh's case, way back in 1974, not two or three or four Judges, seven Judges laid down the law of the land which has withstood the test of time today, after 22 years. They have said, "barring the situation where the President may decide on his own in a dissolution case or where the incumbent Government has lost its majority, the President shall always act on the aid and advice of the Cabinet". If that is so, where is the question of your going to the President or to the Press and suggesting that the President suo motu and separately on his own shall approach the Supreme Court, whether under article 143 for advisory opinion or anything else? Now, to that question, article 79 is no answer. The answer you gave is irrelevant, as far as the Presidential power is concerned. (Contd. by VK/2O)

VK/2O/3.40

DR. ABHISHEK MANU SINGHVI (CONTD): Article 79 simply says that the President is part of the Parliamentary process so far as passing of a Bill is concerned. But that is axiomatic. It has been known to us since the 12th Century when the British Queen was also treated as part of the Parliament that one of the two Houses will pass a Bill and the President of the Sovereign will assent to it. In that sense they are part of the Parliamentary process. But that does not mean and no President has ever suggested that it means and no one else has suggested that it means that the President shall have individual discretion in respect of Bills. That again is highly mischievous and misleading. But let me remind you that you have not only raised this issue, you have also obstructed Parliament on this issue. You have sought to go to the public and the Press by suggesting that referral of this matter to the Supreme Court by the President without the aid and advice of the Council of Ministers is permissible. Let me remind you also of more recent law, definitive law on the subject. You mentioned article 79 completely irrelevant and unrelated to the subject. But let me remind you again of judgements which have drawn a very, very sharp distinction between the power of the President under article 111 and the power of the President under some special provisions where he does have individual discretion. That is a very interesting theme which makes the precise point which this Government is seeking to make and this House should make and that is this. The President under article 111 can return. The last four words say that if it is returned back by the House, the President shall assent to it. This is the Supreme Court, not me and you, ....

SHRI N. JOTHI: Will you yield to me?

DR. ABHISHEK MANU SINGHVI: No, I am sorry.

SHRI N. JOTHI: Sir, he is giving wrong information. Under article 143, he can....

MR. DEPUTY CHAIRMAN: Mr. Jothi, your name is there. Have some patience. (Interruptions).

SHRI N. NOTHI: Sir, under article 143...

MR. DEPUTY CHAIRMAN: No, I am not allowing. (Interruptions). Nothing is going on record. (Interruptions). Mr. Jothi, your name is there. You are going to speak on this. You can respond at that time. (Interruptions). Whatever he is saying, is his opinion. (Interruptions). You cannot say that. You have no right to say that. (Interruptions).

DR. ABHISHEK MANU SINGHVI: Sir, my friend will do unto others including me what he would have me do unto you. The Supreme Court has described the power of the President and the power of the Parliament precisely under this very provision, i.e. article 111, as compulsory assent. If you want to check up the law -- I don't want to get technical -- it is by five judges, in 2002, 8 SCC-182.

MR. DEPUTY CHAIRMAN: Mr. Singhvi, don't respond to him.

DR. ABHISHEK MANU SINGHVI: If you want paragraph, it is 76-77. What does the Supreme Court say?

MR. DEPUTY CHAIRMAN: You make your point. Don't respond to him.

DR. ABHISHEK MANU SINGHVI: Sir, I am not responding to him. It said, "Being an exercise pertaining to expression of political will, apparently the will of the people, expressed through the legislation passed by the elected representatives, is given prominence by specifically providing for compulsory assent or compulsory consent." But it did something more. In the next paragraph, it did something remarkable. It drew a distinction between other provisions where the President does have some discretion. For example, when a State legislation or a State law potentially may violate the Central law and it is reserved for the assent of the President under different article 254, the President would have a different approach and a different discretion. That makes the precise point that today to draw the President into the political arena -- by suggesting what -- by suggesting that the President should refer for an expert opinion; the President can override Parliament; the President may delay it; the President may refer to an oath. These are extraneous, irrelevant and misleading matters and they don't deserve the attention of this august House. But let me go further and remind you that the House is ultimately the House which takes responsibility about the validity or otherwise of a Bill. The House, when it passes any legislation, knows that ex post facto, in future, the courts may or may not strike it down. (Contd. by 2P)

RG/3.45/AKG/2P

DR. ABHISHEK MANU SINGHVI (contd.): The House cannot be deterred in advance by merely creating cobwebs and ghosts to suggest that it is unconstitutional. The President has, nowhere in his reconsideration letter, or in his reconsideration reference, so suggested. Therefore, my friend is deliberately creating a ghost, a ghost of a fear of unconstitutionality and then shooting it down.

May I now turn to what the matter is as far as the Office of Profit Bill itself is concerned? The Office of Profit Bill is nothing but a simple exercise of power under article 102. Just like you must come back to the constitutional text under article 111, you must come back to the text under article 112. Again, as we all know, -- we debated it in the earlier round -- the words there are significant. It says, "Other than office declared by law, by Parliament, not to disqualify." Now these words are added for what reason? These words have been added for the reason that uncertainty will arise in the future whenever you are not aware of the posts. The Constitution could have itemised these posts. The Act could have itemised these posts. But the Act and the Constitution-framers decided not to itemise these posts because they had to deal with future uncertainties, because they must have decided that situations might arise in future which would require flexibility and would require a decision on what to add or what to subtract.

Sir, let me address the three issues raised by the President and presented in a somewhat distorted fashion by my learned friend. The first issue is of retrospectivity. The views of the President are entitled to the highest respect. But my friend himself accepts and admits that there is a judgement in the Kanta Kathuria's case which validates retrospectivity in respect of an Office of Profit Bill. What happened in the Kanta Kathuria case? A lady was an elected MLA, but she also drew honorarium and perks as the Government advocate. After the challenge, a law was passed. The law was challenged on the ground of retrospectivity; it was upheld. My friend brings out a text. The text, which he brings out is a text of nexus. My friend says that there is a nexus...

MR. DEPUTY CHAIRMAN: Your friend has left.

פݾֵ֕ : ߻ , ֻ ֋, ֯ ֮ ִ

׾ ִ : ֵә , ִ

. ׳ ֮ ֑־ : ֮ ֮ ֲֻ֟ ... (־֮֬) ... ֮ ֮ ֲֻ֟ , ֯ ֲ ֮֟ -- ֯ , ִ֟ , ָ ֯ כֆ , ֟ ... (־֮֬) ... ָ ֯ כֆ , ֟

ܟָ : ֯ ֮ ֙ ֻ

. ׳ ֮ ֑־ : ߮ there should be a nexus between the posts and Parliament. I want to tell you; neither the Bhargava Committee has said so, nor the Act of Parliament nor our Constitution framers said so. No document, no clause, no book ever says so. Just because one party says so today, we have to create a new legal text. If this is a new legal text, why did we have a constitutional power of exemption? Why was it necessary to provide for exemption in case you had to have a nexus? This is not a text in any situation, in any discussion.

Then, as regards listing procedure, the listing of certain posts is a universal practice followed in every country which has an office of profit dispensation. (Continued by 2Q)

TDB-HMS/2Q/3.50

DR. ABHISHEK MANU SINGHVI (CONTD.): For example, in Britain, the List System is followed. There are no criteria. There cannot be criteria means that it is not possible to provide for every situation. Now, he talks about the pendency.

, ִ֟ ֟ ꌿ֮ ߿֮ ٙ 103 ӟԟ ꌿ֮ ߿֮, ֮ ֬ ֮ ֤ ָ ֮ ֤ ֬ ד֋ ꌿ֮ ߿֮ ֌ ؛ ׻֋ ײֻ ׮ֵ֤ ָ ֌ ꌿ֮ ߿֮ ؛

The hon. President's views are, of course, entitled to the highest respect. The hon. President's views may, no doubt, be taken into account by the Government in any future dispensation or any future Committee which according to the wisdom may decide to embark on a larger exercise. But, that cannot be any reason to suggest that this House should not pass this legislation. That is no reason to suggest that this House has less power, or, cannot, or is acting contrary to the Constitution in referring the matter back to the President. The point of the matter is simply this that you are entitled to practise hypocrisy. You will practise hypocrisy and double standards when you do this all over. You do this in Jharkhand. The Jharkhand Development Authority is headed by a respectable Minister. The Chief Minister of Jharkhand heads another authority. At that time, your memories go weak. But, when, through this legislation, this House seeks to recognise a reality, what is the confusion about? This legislation is about recognising a reality, and that is the real answer. (Time-bell) Sir, I will just take two or three more minutes. The reality is this. For 20-30 years, nobody has considered these posts...(Interruptions)... Nobody has considered these posts to be monetary offices of profit. ...(Interruptions)... Nobody has considered that these are persons who are rapaciously exploiting these posts. A reality existed. Several persons occupied it across parties. Several posts were occupied always by the Members of Parliament and by the Vice President of India. A reality arose in the light of some new developments. There has to be a mechanism to deal with that. The Constitution provides that mechanism to the Parliament, and this Bill does nothing but recognise an existing reality. It does not mean that in future a Committee may not devise new criteria. But, that does not mean that the reality cannot be recognised by this Bill here and now. And the opposition to this Bill is motivated. It is deliberately intended to create political misleading statements and, therefore, Mr. Deputy Chairman, Sir, I propose that this Bill be passed in the manner it is presented. (Ends)

ֳ֯ן : ָ

ָ (ָ Ϥ) : ֳ֯ן , - ֮־֤ ֲ ֤ ׾ִ֮ϟ ֣ ֕ ִ֕־֤ ֙ ֤õ ָ ׾ֿ ָ ָ ָ ָ , ֕ ֮ ֟ ֲ֕ ֣ ׻֋ ֱ ֮ ֛߅ ֕ ָ ָ ָ ָ ֱ ֮ ֛, ׻֋ ϴ ֱ ָ ֯ ָ ֟ ™ ֱ ׸օ (2 ָ/ߋ־ ָ ֿ:)

PSV-KLS/2R/3.55

ָ (֟) : ײֻ 1959 Retrospective ֵ ָ ֮ 1956 ֵ , ׮ ִֵ 3 ֻ օ

ָ ֟ ֤ ֣ , ֳ ֤ ײֻ ֳ׮֟ օ ֛ և , ֟ ֳ ֤ ׿ָ ? ׮ֿ֮ ָ ? ׮ֿ֮ ָ ߴ֟ ֵ ֮֓ ָ ֵ ֮֓ ׮֟ ևՅ ...(־֮֬)... ֋, ָ ־ ꅠ ֱ ָ ֓ , ֮ ו֋ ָ ײֻ ֮ , ֯ ׸, ָ ֮ , ֟

׮ֿ֮ ָ ֵ ֮֓ Ͽ , ׮־ԓ֮ ֵ פ ָ ׮ֵ֟ ֻ, ׮Ե ִ֕ ׸־ ӳ־֟: ׮י ִ֕ ꅠ ָ-ָ ן ֟ , ָ-ָ ָ ִ֯ӣ ףֵ ָ ָ ֵ ֮ ֤õ ׻֋ ײֻ ֋ , ָ ֟ , ִ֯ףֵ ֻ , ס֯ ֟ פ ֵ֟ ָ ֮ ֤õ ֮֓ ׮֟ ָ , ־ ֮ -ִ פ פ ֻ֯ ָ ָָ ֻ ...(־֮֬)... , ֮ ֟ , ֯ ֮ օ ָָ ֻ , ֮ ֤õ ֮֓ ׻֋ ֺ ֳ ֤ ָ ֤õ ֻ ևՅ ׯ֔ ָ ֲ , ָ ֮ օ ָ ֮ ָ ָ և ָ ־ֻ , ָ ׮ֵן ׮Ե ִ֕ ׸־ סֿ ָ ֙ פ ֵ ָ ִ׮֟ ֣ - ֵ פ, ֻ ֮ ֟ ֻ ָߵ ׮־ד֟ ֤õ ׿ֵ֟ ׾־֤ ֛ ֻ ָߵ ׮־ד֟ ֤õ ϟֿ, ֵ ֮֓ ׾ֹ , ֮ ׿ֵ֟ ׮־ד֟ ֤õ ׿ֵ֟ ָ ֳ ֤ ־ӛ օ ֲ ־ӛ , ߿ ָ ֻ ִ ו֮ ֮ ָ ߿ , ָ ָ ָ ָ֟ ...(־֮֬)... , ...(־֮֬)...

֮֮ߵ ֤õ ֵ

 

 
߿ ָ, , ,

ױ ֣ ָ֟, , օ ...(־֮֬)...

֟! ֟ , ߅ ֟ ...(־֮֬)... ׻֤֮ ֟ ! ...(־֮֬)...

ߴ֟ ׾֯־ : ָ,...(־֮֬)...

ָ : ֟ ֯ ֟ ׸ ...(־֮֬)...

ֳ֯ן : ֯ ך ...(־֮֬)...

SHRI AMAR SINGH : ...(Interruptions)... Do not provoke me. ...(Interruptions)... I have not said anything unparliamentary. ...(Interruptions)... Why are you interrupting me? ...(Interruptions)...

SHRI V. NARAYANASAMY: He should address the Chair. ...(Interruptions)...

ָ : ֟ ...(־֮֬)...

ֳ֯ן : ֯ ו֋ ...(־֮֬)...

֮֮ߵ ֤õ ֵ

 

 
ָ : ֟ ָ ֛ ׾׬־ ָ ׻֋ ָ ֤õ ן ֵ֟օ ٌ֕ʹ ׸ ָ ן ֵ ֟ !

ֲ ֵ ,

ָ օ

ָӛ פ ָ օ

(2/000 ָ ֿ:)

 

 

 

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