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-YSR/VKK-AKA/3f/5.00

SHRI RAM JETHMALANI (CONTD.): I don't know, Sir, if there is anybody else who has done that.

SHRI AMAR SINGH: Shrimati Jaya Bachchan also...(Interruptions)...

SHRI RAM JETHMALANI: My hats are off to that lady that she emulated this great example; and I must pay a tribute to the female gender that the greatest example of good constitutional bearer has come from the ladies in this country...(Interruptions)...

SHRI AMAR SINGH: Shrimati Kapila Vatsyayan...(Interruptions)...

SHRI RAM JETHMALANI: You happen to be more familiar with ladies. (Interruptions) My tribute to you as well. (Interruptions) Sir, while we are all immersed in immorality, in that sense, immorality does not consist in accepting an office of profit, the immorality consists in waiting for legislation to be passed to redeem you from the consequences of a breach of the Constitution. That is immoral according to me and those who did not wait for Parliament to do it deserve the gratitude and the appreciation of the nation and those who so waited, at least, are estopped from talking on the anvil of morality. Morality is out. Sir, my friends in the BJP, they are all my friends today. They were my friends before and I hope we will continue to be friends for all time, except some who particularly offend me. ...(Interruptions).. Their immorality is accentuated by their *. They are the beneficiaries of this legislation. Not one of them has resigned who should have resigned and still now, they claim, "We are so moral that we are opposing this Bill." Sir, while you increase the charge of immorality against you by your *, you further compound it by the eloquence of Mr. Jaitley.

 

He uses his eloquence which I cannot hope to emulate. But I do submit, Sir, the this * has no place. Our attitude to * is also *, if not cynical. Sir, don't remove that word.

MR. DEPUTY CHAIRMAN: No, I am removing because it is unparliamentary.

SHRI RAM JETHMALANI: You can expunge it by all means.

ߴ֟ ִ þָ֕ : 4 ָ , ָ ֵ

ֳ֯ן : ו֮֟ ֵ , ֲ expunge օ

 

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

* Expunged as order by the Chair.


SHRI RAM JETHMALANI: Now, Sir, let me see what the hon. President has told us to do. Sir, he has made five points and each point is worthy of serious consideration and serious reverence. The first point that the hon. President has asked us to do is, look into the settled interpretation of this word. Sir, have we done it? I find that nothing of that kind has been done. You have exempted some offices. The only thing common to all these offices is that they are all constitution breakers; that they have broken the Constitution, wittingly or unwittingly, but, they have broken it; that they have incurred a certain consequence; that is the only common thread which unites all these offices in the schedule. What you should have done in reverence to the President and, in fact, what you should have done in the original legislation is, to formulate a common principle of exemption which can justify these 90-odd or 40-odd exemptions which you have created. (Contd. by RSS/3g)

RSS/3g/5.05

SHRI RAM JETHMALANI (CONTD.): This has not been done, and Sir, my friend, Dr. Bimal Jalan, he is not a lawyer; he claims to speak like a layman, but, he said something so important and vital that it should not miss the attention of this House, and particularly, the Law Minister. What he said is that some of these offices which you have sought to protect by this law, are not really offices of profit at all. He is right. He did not spell out his reasons. I do not blame him. But, Sir, my own view of the law has been, and the Supreme Court has said nothing to the contrary till today, that an office of profit in which the holder of that office has no statutory power of any kind to make any decision, which can be binding upon a citizen or a section of citizens, is not an office at all. Before it becomes an office of profit, it must be an office. An office does not mean an office, which you get in the party office or something like that, or a table or a chair or something. The office means something which carries the power to affect the destinies of others. If that is so, it is an office of profit. Most of these offices are not really offices of profit.

Secondly, an office of profit must be an office of profit. A profit means that you must be richer by reason of holding that office. If you are paid a reasonable travelling allowance, reasonable daily allowance, it is an office of profit. The Supreme Court is very clear that an honorary office is not an office of profit. You have unnecessarily besmirched the holders of these offices, who are honorary holders of offices, and who are not holders of any statutory power of any kind. So, all this should have been spelt out and properly considered, and we have done no service to the President by not considering his advice number one. His advice number two is that, please consider the underlying constitutional principle of this particular provision in the Constitution. I regret again that there has been no application of mind to this aspect of the matter at all. The principle underlying this is based on the History of England. The Crown of England habitually used all offices of profit to hold his royal power against the popular power of the people of the country. Wherever the enlightened Britisher went, he introduced this provision that no member of the legislature shall hold an office of profit because that became a system of institutionalised bribery of the legislators. Sir, it was there in the Government of India Act, 1935. Nobody objected. In the Constituent Assembly, the measure was adopted without discussion. So clear was its impact, and its implications understood. The hon. President says that, please inquire into this great principle, which is the basis of this provision, and then pass some exemptions. The exemptions must be those in which the offices are of such a nature that a legislator is better able to perform that office, in preference and in comparison to anybody else, and second, that he is, perhaps, able to perform it without the use of any statutory power, and perhaps, without enriching his pocket. Now, all these things are required to be considered seriously if we are to respect the exalted office of the President, and particularly, the current incumbent of that office, who has no axe to grind. He is a scientist; he is not a politician, and he has referred this matter to this House.

The third thing which the hon. President has asked us is to say what I have been saying all alone, and I had said it in my speech last time that underlying all these offices which you have exempted, what is the criterion of discrimination? There are still some offices of profit which will incur the disqualification. Why are those offices to incur disqualification and why not these offices, this is what he should make clear by showing that there is a rational discrimination? Otherwise, it will be that only the existing Constitution breakers are protected, but those who deserve to be protected on the same ground, are not protected, and this legislation is extraordinarily arbitrary, devoid of any basic principle and it will not stand the constitutional scrutiny of the Supreme Court. (contd. by 3h)

-RSS/MKS/5.10/3H

SHRI RAM JETHMALANI (CONTD.): This is the third reason that Mr. President has told you.

The fourth reason, he said, is that there are pending judicial proceedings. Consider what you are doing to them. By this legislation you have created the impression that Parliament is of the opinion that even honorary holders of office and non-statutory holders of office who could make these points before the Supreme Court are now debarred from doing so. This is the way the Parliament itself has construed it. So, you have affected the destiny and the final conclusion of the pending proceedings. We have made no distinction about those, and we have deliberately disregarded the President's advice.

{THE VICE-CHAIRMAN, PROF. P.J. KURIAN, IN THE CHAIR}

Sir, the fifth and the last one, I am telling you, Sir, --I hope this Bill passes through the constitutional mill in the Supreme Court-- is, the Constitution says that the holder of an office of profit will forfeit his office except an office which has been declared by Parliament to be exempt from this provision. It means, Sir, that the office is exempted from that at the time when the man comes to hold that office. Nobody challenges the power of Parliament to make retrospective legislation. By all means, you can retrospectively change the law, but this is not retrospective legislation. This is retrospectively undoing a constitutional consequence and the constitutional inexorable result which has arisen from the Constitution. This is totally different from saying that we have the power of making a retrospective legislation. Nobody denies it. This is a clause by itself. Exempted office is an office which is exempted on the date on which you are elected as a Member of Parliament or on the date on which you come to hold that office. So, Sir, all the five major concerns of the hon., distinguished President of India, I believe, have been sufficiently thrown to the winds. I also believe that this Bill will, ultimately, meet the fate which is, probably, deserved by all kinds of Bills of this kind and, in the process, Sir, we do seem to have violated the spirit of article 111. But, certainly, I do not subscribe to what Mr. Arun Jaitley has said. Thank you, Sir. (Ends)

SHRI SHARAD ANANTRAO JOSHI (MAHARASHTRA): Mr. Vice-Chairman, Sir, I rise with a very heavy heart not only about the contents of the present discussion on the Amendment Bill but about the manner in which it has been brought before this House. Sir, I know that Bombay is in the grip of great tension today. This morning, a suspect terrorist was about to be lynched and he had to be saved by the police forces. It has come in the reports and the newspapers that on the 11th of July, seven blasts took place. That was the day on which several of the buildings owned by Dawood Ibrahim were supposed to be destroyed. It has come in the newspapers yesterday that the Bombay High Court has decided that Sahara Sara, another big Mall of Dawood Ibrahim, is to be destroyed either today or tomorrow, and I have all the fears that today or tomorrow, we are going to have a very massive explosion in Mumbai. It was in that cloud of this, we demanded that the Office of Profit Bill ought not to get priority. Sir, just imagine if something really happens today, then, that will be the darkest day in the history of Rajya Sabha, and tomorrow, we will find it difficult to answer to the people why is it that we considered the Office of Profit Bill more important than what was happening in Mumbai.

Having said that, Sir, I would say that we have seen the message of the President, and saying that I told you so is not a very happy thing. But I have got a copy of my speech when the Bill came, for the first time, for discussion...(Interruptions)... I must say that the President has only added two more points to the three points that I have raised at that time. (Contd. by TMV/3J)

-MKS-TMV-GS/3J/5.15

SHRI SHARAD ANANTRAO JOSHI (CONTD.): There is no criterion. What ought to have been done is giving a definition, an analytical definition, to "office of profit" by attributes and making it applicable to everybody until, as Mr. Sitaram Yechury has stated, a Committee goes into that and prepares a definite criterion. There is no head-going hurry. We can prepare it before the next elections. Till then what ought to be done has been demonstrated. I share the compliments that Mr. Ram Jethmalani paid to the President of the Congress Party, even though I am not her admirer, and Shrimati Jaya Bachchan also. They followed the law, resigned, went back to the constituencies and came back re-elected. This was the right thing ought to have been done by way of remedy. I really don't see any reason why, rather than taking a principled and moral position, we are going in an awkward way which is not only immoral but seems to be immoral. Last time, when this Bill came up for discussion, I said that this would not stand the scrutiny of the courts. I am still sure--you may pass it with any majority--that this is not going to get through the Supreme Court. Our friend, Dr. Abhishek Singhvi, said that it was not for us to bother about the legality of the thing. It is not true. In this House, I voted against the Bills, at least, on three occasions. On each of the occasions, I warned that it would not be legal and it came to be true. Take, for example, POTA. The only two people who opposed were Dr. Chandan Mitra and myself. It was actually turned down by the court. On the Bill giving moratorium on destruction of buildings in Delhi, I raised my opposition voice and the courts have rejected it. In this case also I can assure you that this Bill is not going to get through the courts. All that you people are going to do is to take advantage of the time that will pass in-between to keep the Government going. Last time, I asked for division and voted against it. I will ask for division once again, if necessary, and vote against this Bill. Thank you. (Ends)

THE VICE-CHAIRMAN (PROF. P. J. KURIEN): Shri Syed Azeez Pasha. Please be brief.

SHRI SYED AZEEZ PASHA (ANDHRA PRADESH): Hon. Vice-Chairman, Sir, while participating in the discussion the legal luminaries have already thrown sufficient light on the pros and cons of the Bill. Last time, when I participated in the discussion, I had expressed the opinion of my party, why we are supporting and what the reasons are. I feel that certain ambiguities which were there in the Bill have now been clarified. I don't think that we are showing any sort of disrespect to the President of India by reviewing and passing this Bill because article 102 is self-explanatory. I want to say that when we, the Left parties, support this Bill, let nobody get the impression that in order to save the various offices of profit we are supporting the passage of this Bill. My learned friend, Mr. Amar Singh, has already pointed out that the recent verdict in West Bengal and Kerala is a clear-cut indication. It was a massive mandate in support of the Left parties. So, we are not afraid of resigning and contesting elections once again. That is why our parties are supporting the passage of this Bill. Thank you. (Ends)

THE VICE-CHAIRMAN (PROF. P. J. KURIEN): Shri Dinesh Trivedi. Dineshji, please be brief.

SHRI DINESH TRIVEDI (WEST BENGAL): Should I sit down?

THE VICE-CHAIRMAN: I am the last man to say that.

(Followed by VK/3K)

VK3K/5.20

SHRI DINESH TRIVEDI: This exactly is my point. This is the kind of respect we are giving to the message of the President of India. I thought that the message of the President of India would be taken with much more seriousness and attention which it deserves. Hon. Ram Jethmalaniji has aptly put it. It is not only legally speaking but also morally and spiritually. I expected the House to deliberate on this, not for four hours, maybe, for four days. But what I see here is that we want to curtail all the speeches also. Sir, I appreciate you because I also sit on this august Chair. We are compelled by the time given to us and I have no quarrel on that. My friend Shri Manu Singhvi, is sitting here. Since he mentioned about the developments in the morning, I am compelled and I also wish to join issues. He mentioned that we were merely disrupting the House. I am sure he did not really mean that. It was more worthy. Nevertheless, this gives me an opportunity also. There are certain things which are symbolic. Hon. Prime Minister of India, distinguished President of the Congress Party, Rashtrapatiji, the Leader of the Opposition, all these powerhouses of India went to Mumbai -- for what -- to show that the whole country stands behind, the whole country is capable and will fight the terror. (Interruptions). If you are not serious about listening to me, it is your choice. I am on a very serious note. If you want to have acrimony all the time, there is nothing I can do. I plead...

THE VICE-CHAIRMAN (PROF. P.J. KURIEN): Please address the Chair. Don't respond to that.

SHRI DINESH TRIVEDI: As I said, it was very symbolic. They all went there. It was important; it was symbolic. We started this Session, we all remember, with two minutes maun. What was the quarrel in the morning? The quarrel in the morning was, I only wanted to know what had changed suddenly that we were curtailing the discussion on the Mumbai blasts and suddenly bringing something which was not anywhere near the importance....

THE VICE-CHAIRMAN: Mr. Trivedi...

SHRI DINESH TRIVEDI: Sir, I have a right to know....

THE VICE-CHAIRMAN (PROF. P. J. KURIEN): The discussion is taking place because of the ruling given by the Chairman. Don't go to that.

SHRI DINESH TRIVEDI: Sir, I have a right to refute....

THE VICE-CHAIRMAN: You cannot directly or indirectly criticise the ruling of the Chairman.

SHRI DINESH TRIVEDI: This is not fair. When he was speaking, there was no interruption. Why did he start that? There was a charge levelled against us that we were disrupting the House. When it was said, I was the first one to get up. Still I have not got the answer as to what was so important and under which rule it was so important that we were compromising with the interest of one billion people of this country and trying to talk about the interest of 40 odd Members of Parliament. That is why I am very sad today. (Contd. by 3L)

RG/5.25/3L

SHRI DINESH TRIVEDI (contd.): Certain instances in life leave a big scar on your entire emotions. Today's incident is one such which is, definitely, going to leave a scar on my emotions, and nothing can change that. Having said that,...(Interruptions)

SHRI JANARDHANA POOJARY: I am on a point of order...

SHRI DINESH TRIVEDI: I am not yielding...(Interruptions) He has to say under what rule he is raising it.

SHRI JANARDHANA POOJARY: It is under Rule 261. In the morning, the hon. Member, while addressing the Chair, made a charge against the Chair saying, *. He has made a charge against the Chair. That is on record...(Interruptions)

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

* Expunged as ordered by the Chair.


SHRI DINESH TRIVEDI: Sir, if they are interested in disrupting the House,...(Interruptions) Sir, rule 261 does not pertain to a point of order...

THE VICE-CHAIRMAN (PROF. P.J. KURIEN): I will deal with that...(Interruptions) I will deal with that. Mr. Poojary, if we have to expunge some remarks made in the morning, there is a rule for that. That cannot be raised as a point of order now...

SHRI JANARDHANA POOJARY: I have already given in writing...

THE VICE-CHAIRMAN: Then the Chairman will consider it.

SHRI JANARDHANA POOJARY: Otherwise, the Press will publish it. It is a remark against the Chair...(Interruptions)

THE VICE-CHAIRMAN: The Chair will consider it. Please sit down...(Interruptions) But there is no point of order here. Mr. Trivedi, you please continue.

SHRI DINESH TRIVEDI: I am not on any ego hassle. If I had said something which I shouldn't say, I have no hesitation in saying,...

THE VICE-CHAIRMAN: Trivediji, please come to the Bill.

SHRI DINESH TRIVEDI: I am not on any ego clash. We are on a more serious note. As I was saying, I expected this House to deliberate this in a more serious manner, except the hon. Member and my very senior and experienced colleague, Shri Ram Jethmalani, who, point-by-point, mentioned the message of hon. Rashtrapatiji. And that is exactly, what I felt, the whole Parliament should have been doing. But, as I said, we are more in a hurry to pass this Bill.

(MR. DEPUTY CHAIRMAN in the Chair.)

As I promised, Sir, I am not going to speak more than five minutes more, if you permit me. I have told earlier also when we were talking on this subject, I stand here today more to protect, as per the oath which I have taken, the spirit and letter of the Constitution rather than joining a debate for the sake of it. Sir, it is quite evident that it is not going to serve any purpose of my elaborating this discussion because if we had not listened to the sane advice of Rashtrapatiji, I am sure nobody is going to listen to my voice. His voice is the tallest of all of us. If that voice has not been heard, and if we have not heard his message in all sincerity under our command, then, my talking here will not obviously make much sense. However, I mentioned earlier also what my objection is, and I would like to repeat that. This country cannot have two sets of laws, one for the ordinary citizens and the other for the hon. Members of Parliament and Members of Legislatures. Whenever a citizen breaks a law, we all stand here and say, "Let the law takes its own course." But if a Member of Parliament is found, knowingly or unknowingly, flouting whatever law of the land is, then, what do we do here? We change the course of law. (Continued by 3M)

TDB-ASC/3M/5.30

SHRI DINESH TRIVEDI (CONTD.): We don't say, "Let the law take its own course". So, this double standard will not go very well in the country. Sir, when they say that this is a Bill -- and I had told last time also, when I was speaking on this Bill that this is not a Bill, to my mind, this is a paper of confession. You are confessing that these are the offices which are held. Like Jaitleyji has mentioned that there is a face behind each and every office. Sir, we are not exempting the office. What we are doing is, exempting the Member of Parliament, and not the office. So, it was a statement of confession, and I still feel it is a statement of confession. Yechuryji mentioned about Tripura. I don't have any quarrel individually. But the fact is, if it is not an office-of-profit, if Shantiniketan and the rest are not an office-of-profit, why does it find a mention of that in the Bill? Can somebody explain that to me?

Sir, we have been talking about hypocrisy and other things. I don't think so. There can be more hypocratic approach to this than what had been talked about. Sir, it is very evident, as I had promised my friend, Sureshji that I will not take more than five minutes, I am going to conclude in one minute. Just one minute. ֵ֤

ֳ֯ן : ֯ ׻֋

SHRI DINESH TRIVEDI: Sir, we have already proved that this is ultimately going to go through the scrutiny, and fortunately, our Constitution is above every one of us. Fortunately, we have a Supreme Court in India, unlike any country. And ultimately, the test of this Bill is going to be there in the hon. Supreme Court. Sir, it reminds me of -- and this is where I will conclude -- Shaheed Bhagat Singh; it reminds me of Chandrasekhar Azad; it reminds me of the son of Bengal, Khudi Ram Bose. Sir, they had no hesitation in giving up their lives for the country. What a shameful day today that there are M.Ps. who are hesitating to give up their membership of Parliament! It is a shameful day. Sir, when the Parliament was attacked on 13th of December...(Interruptions)...

ֳ֯ן : ֯ ״֮֙ ֵ ...(Interruptions)...

SHRI DINESH TRIVEDI: Sir, on 13th of December...(Interruptions)...

SHRI N. JOTHI: He is not having any office-of-profit. ...(Interruptions)...

ֳ֯ן : ֯ ׻֋

SHRI DINESH TRIVEDI: Sir, if they are going to disrupt me...

MR. DEPUTY CHAIRMAN: No, no; they are not disrupting you.

SHRI DINESH TRIVEDI: Sir, we have four hours for this Bill, and four hours are not over.

ֳ֯ן : ֮֯ ״֮֙ ִֵ֠ օ

פ ס־ : ָ ә ֟ פ כÙ ...(־֮֬).. ״ּ ֮ ӟ þֳ־ ..(־֮֬)..

ֳ֯ן : ס־ , ֋ ֯ ...(־֮֬)..־ֲ ֺ ֯ ו֋

פ ס־ : כÙ ֮ , ֯ ֮ ֮ ו֋

ֳ֯ן : ֯ ֮ ֯ ו֋

פ ס־ : ֠ ֻ ..(־֮֬)..

ֳ֯ן : ֋, ֯ ֮ ֟ ו֋ ֯ ׻֋ ..(־֮֬)..

SHRI N. JOTHI: Sir, he is talking about Mahatma Gandhi.

פ ס־ : ֟ Ӭ ֤ -֠

ֳ֯ן : ֯ ׻֋ (3N/NB ָ ָ)

-TDB/KLS/NB/3N/5.35

פ ס־ : ֳ֯ן , ֲ ֟ ֟ , ָ֕ , ߸ִ ֟ , ָ֕ , ֕ ָ֮ ֤֕ ֟ ׻֋ ֮ ֮ ֕ ֤ ֤õ , ֮ ֯׿֯ , ׻֋ ֮ ֛ ֟ ׻֋ ֮ ֯ sacrifice , ֮ ֯ ֮֓ ׻֋ Ùߙ֮ sacrifice .... (־֮֬)

ֳ֯ן , ֲ 13 פӲָ ٻִֵ ָ ֟פ ֻ , ӓ ָ ֻ ß֮ ־ֲ ׻֋ ִ , : ֟ ֕ ٻִֵ ײֻ ׸ , ֮ ֟ ӓ ֛ , ָ פ י ֟ ָ , ֛ ִֵ ֟

MR. DEPUTY CHAIRMAN: Please conclude.

פ ס־ : ֳ֯ן , ָ օ ٻִֵ ֟ ֌ , ָ -

"ָؓ ֛,

־֮ ֋

־֮ ֋,

֋?"

I oppose the Bill and during the course, I will ask for division also. Thank you. (Ends).

MR. DEPUTY CHAIRMAN: Shri Abani Roy, you are the last speaker.

׮ ֵ (׿ִ ֻ) : ֳ֯ן , ײֻ ָ ֓ , ֻ ֻ ֟ ײֻ ִ֣Ԯ , -߮ ֟ ֟ ָ-ָ office of profit definition ֟ , definition ֮

׾ ֤ : ֤, ֯ פ ׻֋, ֯ פ .... (־֮֬)

ֳ֯ן : ׾ ֤ ,

. ִ ӛָ : פ ֟ ֯ ִ֟

׮ ֵ : ֳ֯ן , ֮ office of profit definition , ו ָ כև ־ֿ ָ ֟ ָ 1959 ׻Ù ֮֮ ֛ , ֤ ױ ֮֮ ֛ ָ ֲ ߴ֟ ֵ ֮֓ ֤õ֟ և, ֻ֓ ֓ ևԅ ֕ office of profit , office of non-profit , , ׸֟

ָ ֟ ֕ ֓ ׻֋ ™ן י י ־ֲ ִ ׻֋ ָָ ܾß י ־ֲ , ׾֬ ֟ ֻ ִ ֤ ֓ , Դָ֤֮ ܵ , , ӓ, ֮, ־֮, ֚ , օ ׻֋ ָׯ֟ ֋ ָׯ֟ ֋, ָ ֟ , ָ morality , ָ ֤ ֟ , ֯ 56 56 ׸և ו֋ և, ָ ֻ , ֮ ׻֋ פ ֟ , פ , morality , but we won't believe in that, ׻י ֵ֤ ׻֋ ֯ oppose ָ ֯ פ oppose , ֲ ֟ ֮֟߅ ֕ ֯ oppose , ׸, ֯ ֮֕ן ֵ֤ ׻֋ ִ Ù ָ ֓ , ֓ ևԅ ֕ ֓ , ֟ ָ ײֻ ׸ ֟ , ׸ ֤ ֲ ֵ֤ ״ֻօ 3O/HMS ָ ֿ:

-KLS-SSS-HMS/3O/5.40

׮ ֵ (֟) : ׻֋ ֯ ֯ Դָ֤֮ , ? ׻֋ ױ ױ כױ߿֮ ׾µ ׻֋ ֲ ֮ ו ָ ֮ , ֕ ׸֟Ԯ ֋ ֣-֣ ׸֟Ԯ ֋ ֮ ֻ ײ ꌙ ־֮Դ ױ ֟ ו ָ ֵ , ָ ßֻ ֋ ֟ Ӥ ֕ և ꌙ ־ֿ ֕ ׸֟Ԯ ֋ ֕ ֤ ׸ٟ֟ ֵ ֕ ֤ , ׻֋ ֳ֮֕ ֤ ? ßֻ ? ִִ ֟ ֮ ֟ ֮֋ ӯ־ ײֻ ֋ ָ ֤ 000 ֳ ֤ ָ ֣ ײֻ ִ֣Ԯ (ִ֯)

THE MINISTER OF LAW AND JUSTICE (SHRI H. R. BHARDWAJ): Hon. Deputy Chairman, Sir, at the outset, I express my gratitude to all the hon. Members who have, by and large, spoken well on the message of the hon. President. But, before I come on the merits of the comments, I would like to emphasis one thing, in the Parliamentary democracy and traditions of Parliamentary democracy, in that, the role of the head of the State, we havefollowed the British pattern and President occupies a very high office. As they call in Britain 'his Majesty' or 'her Majesty's Government', so, this is the 'Government of the President'. We are the Ministers acting on the allocation of business of the hon. President. So, there should be no apprehension in anybody's mind that there is any desire to do anything contrary to the wishes of the President and his name should not be dragged in the controversy at all, as, Sir, this morning, two days ago, after the message was printed. Like the British Queen, the President also does not attend the House every day. They communicate through messages. This is the tradition of Parliamentary democracy. Like the British Queen who communicates to the House her messages, the same pattern we follow in India. The President also communicates through his message and he is within his Constitutional rights to send messages for our guidance. He addresses both Houses of Parliament.

SHRI N. JOTHI: Mr. Law Minister, will you yield to me?

SHRI H. R. BHARDWAJ: No, no, not at all. We should be disciplined. (Interruptions)

SHRI N. JOTHI: There is no written Constitution in England. In England, there is no written Constitution. Let us not compare.

MR.DEPUTY CHAIRMAN: That makes no difference. Please sit down, Mr. Jothi.

SHRI H. R. BHARDWAJ: I am very sorry; this is not the way...

MR. DEPUTY CHAIRMAN: He is not yielding. I can't allow. It is not a debate. Please sit down. He has the right to say and there is no need to intervene.

SHRI N. JOTHI: Only in India we have a written Constitution.

SHRI H. R. BHARDWAJ: Sir, we are all advocates. We should have basic etiquette. Just now we were saying that we should discuss this message very seriously with all the consideration to the points suggested by the hon. President in his message. I want particular attention, particularly, focussed to those points. I am very keen that we should discuss, debate and find out the solution because the hon. President has been pleased perhaps to raise several issues. Basically, they relate to three to four points. The first issue is, probity in public life and what I have been able to locate from the point of emphasis is probity in public life of old ethical values, avoidance of conflict of interests and respect for the institution of democracy. Sir, there can be no two opinions on this and we have very keen desire that we should promote all the values of our Parliamentary democracy. But, there are certain issues which have been judicially decided, for example, Parliament's power.

(Contd. by NBR/3P)

NBR-PSV/3P/5.45.

SHRI H.R. HANSRAJ BHARDWAJ (CONTD.): Sir, in the same Article, which provides disqualification, the power has been conferred on the Parliament. It says, '...other than an office declared by Parliament by law not to disqualify its holder.' So, these two lines are very important. On the one hand, the Constitution says we shall not hold office of profit. But, in the next lines, added to it, it says, 'other than offices declared by Parliament' which are not offices of profit or exempted. So, when Parliament exercise these rights, it is the duty of Parliament -- Parliament applies its power -- and this is what exactly has been said in several cases. Under Article 102(1)(a), of course, Parliament has the jurisdiction to declare an office as not to disqualify its holder, for example, Sibu Soren's Case. For the benefit of the hon. Members who have spoken, the Sibu Soren case was in 2001. And then, the most important case in the legal history of India on this particular issue -- Parliament power and Parliament legislating retrospectively -- is a case of a Five-Judge Bench of the Supreme Court headed by one of the greatest judges, Justice Hidayatullah, Justice Sikri and Justice A.N. Ray who became the Chief Justices and one of them had the privilege to be the Chairman of this House, Justice Hidayatullah. What do they say? I will not go into the details. They said categorically two things. They said, (1) Parliament has power to exempt those persons who are likely to be disqualified for office of profit. And then, while doing so, if they are removing the disqualification retrospectively, it is very much within the power of Parliament. I will just read out one thing and this was argued by the great M.C. Chagla and the Supreme Court answered, 'great stress was laid on the word 'declared' under 191. But, we are unable to imply any limitation on the power of the legislature.' So, there are no limitations. Morality, this and that are all political arguments which Arun normally raises when he has no legal argument to advance. That is his eloquence, I know. He is a young man with full of energy. What can he do when he has no legal point? He has to argue on morality. But, what he has not replied is Kanta Kathuria's case. Whether you are denying legislature's competence to declare any office of profit exempted. A great stress was laid on the word 'declared' in that article. But, we are unable to imply any limitation on the power of the legislature.

The second point is, again, apprehension that it may not be a healthy practice and this power might be abused in a particular case. Or, no grounds, again said emphatically, for limiting the powers of the legislature. This House must take cognisance of this. When the hon. President of India has sent a message what is the importance of the message? He is within his right to send the message. And, he feels that hereinafter we should evolve better ethical principles so that there is no conflict of interests in the functioning of Parliament. There should not be any executive influence on the legislatures. They, perhaps, moved the President to make this reference under Article 111 which says, 'the President may...specified provisions thereof... will consider the desirability of introducing any such amendments....' The President has not suggested any amendment to this Bill. Hon. President has raised general points 1, 2 and 3. And, we have to seriously consider them. I would have been very happy, rather than importing politics into it, we could have considered them and I would have replied them point-by-point, because we are not less committed in the matter of public morality or, for that matter, probity or, principles. Great sermons have been delivered to us. I have 35 clean years of political life. We know when we come to Parliament it is our duty to assist the Chair in conducting the business of the House. What had happened in the morning? On one pretext or the other they are just postponing consideration of this message. (CONTD. BY USY "3Q)

USY/3q/5.50

SHRI H.R. BHARDWAJ (CONTD.): This is not relevant. We must take each point which has been mentioned in the message -- evolution of generic and comprehensive criteria; the implication of exempting of the names of holders of offices legitimately disqualifying a Member; and, soundness and propriety of law in making the applicability of the amendment retrospectively. These are very noble points which have been raised. As they come from the hon. President, we should satisfy him by debate not by fighting each other, not by acrimony. This is not parliamentary etiquette or democracy. We should satisfy the hon. President that Parliament has considered his viewpoints very seriously and that we are very grateful to the hon. President for having made these points. It will enable us better options. Who denies that there can't be better options on these issues? There is an issue of tainted ministers. There is an issue of disqualification. There is an issue of ethical value in Parliament. Recently, the Committees have gone into several issues regarding parliamentary democracy and strengthening the parliamentary democracy. Several issues are pending with us. If we will not allow our mind to those points clearly and with dedication, we will reach nowhere. Then, whom will you blame? Let me tell you the history. The first amendment in the Constitution came by 42nd Amendment, I think Mr. Arun will be aware of it. It was annulled by 44th Amendment. What was the 42nd Amendment? It was that the Office of Profit is not defined in the Constitution, let a comprehensive list of the offices of profits be drawn so that no MP should occupy those offices. It is the one practice which is being followed in Britain even now. The Parliament declares, by a Resolution, that these are Offices of Profit. And, every now and then, they go on adding to them. It is a big list that was invoked in the 42nd Amendment, but it was annulled in 44th Amendment. The law that I am protecting before you is the constitutional provision 102, adopted in the 44th Amendment. Now, this is the provision, today, in the Constitution. Thereafter a Standing Committee on Office of Profit also went into it. But somehow or the other we have not been able to coin a definition because of the several judgements. The Supreme Court says that we cannot create a basket. In Sibu Soren's case they say, "A practical will, not pedantic basket of tests must guide the courts to arrive at an appropriate conclusion". We have to examine all these things. And, then, if the Constitution could be amended.... The amended Constitution, for Anti-defection Law, in the Tenth Schedule, I put it in the Constitution. Thereafter, the Anti-defection Law has faced several difficulties till today in interpretation. So, this is a question that is very relevant. Times have come that of public days, public morality, and criticism by media. I am one of those who believe that media has a role in parliamentary democracy. But Parliament is supreme in deciding policy matters. The media can be guiding us. We can take a note of the public priority. But are you going to abdicate your own power in Parliament to discuss objectively the message of the hon. President? I agree with my senior colleagues, Mr. Ram and Mr. Jalan, that it is for the first time that the hon. President has been pleased to send a message. And, every now and then, we would like to have messages from the President for our guidance because we are his Government. When he says that it is his Government, he really says that it is his Government. There can be no question of defying the President. You are using wrong constitutional provision. I was surprised when it was canvassed by a delegation of the Opposition that the President can resort to article 143. This kind of argument from legal luminaries is being advanced that ignoring the Cabinet he can proceed under Article 143. I am surprised to what extent you are taking the nation to this falsehood. We cannot accept this proposition that you can bypass Parliament or the Cabinet in democracy. (Contd. by 3r -- VP)

-USY/VP/5.55/3R

SHRI H.R. BHARDWAJ (CONTD.): The President is the father figure in the Constitution. And, we are always very keen to have guidance from him. We always like to give the highest consideration to the suggestions made by this high office. Therefore, don't say this, and, for God's sake put a full stop to what you did today. This is high time you realise it. You attack the Election Commission, you attack the President, you attack, sometimes, the courts. This is not the way. ..(Interruptions)... You may go on raising voices. ..(Interruptions)...No; this is not the way. If you want every institution to be attacked, and if this tendency continues, then, nobody can defend Parliamentary democracy. You don't allow us to defend. You don't allow the Question Hour submissions. This is not the way we should act. You had been in power. You enjoyed power for nine years and we had tremendous regard for each Minister. Today you don't allow us to make submissions. This is where we must ponder over and this is the job we have been entrusted by the nation. Though the mandate of the public is that this side should govern, tomorrow, you may be there or anybody else may be there. Now, you are maligning your own colleagues. I am very much surprised that you are particularly making allegations against sitting Members of Parliament that they are greedy, they are bad. They are serving the people. Don't you press everyday that you include Members of Parliament to supervise development work of their districts or constituencies? What is their office of profit in it? Is there any greed in it? Because you don't see eye to eye with the Left, therefore, attack them in whatever manner you can. This is not the spirit of the Constitution. Therefore, you use the word, lalach, or 'office of profit.' What is it? Members of Parliament do not function throughout the year. If they go to their constituencies and supervise the development work of that area or the adjoining area, there is no big office in it. So, we will examine this. We are prepared to sit with you. But for God's sake, let us come to a consensus. After all, what are we discussing today? We are only discussing how a Member of Parliament's prestige can be defended, how we can exactly know what an office of profit is, and what we should exempt. Those Members of Parliament; sitting Members of Parliament, who are under attack, none of the petitions has been filed with full material or particulars of disqualification. This is the careless manner in which they are treating their own colleagues. We should give full particulars that this is the way the man is disqualified. Now, you are making inquiries and saying that give us this and that record. You must do your homework. If anybody is going to be disqualified, and if a serious charge is levied against a sitting Member, then, I must request that if allegations are made against a sitting Member of Parliament, they should be made with full responsibility and with full particulars of the alleged misconduct. But that does not mean... ..(Interruptions)...

MR. DEPUTY CHAIRMAN: Please don't interrupt. ..(Interruptions)... You go on. (Interruptions) Please don't yield.

SHRI H.R. BHARDWAJ: Sir, I am not yielding. ..(Interruptions)... I am replying to what was said. Therefore, Sir, right from Kantha Kathuria versus Manak Chand 1970 SC 702, -- Shri Arun Jaitley may have a look at it, he was a Minister, he knows it -- that retrospective legislation is valid. Secondly, there is the Shibu Soren's case. Recently, in the hon. Member, Shrimati Jaya Bachchan's case, the Supreme Court has again given the same guidelines that we cannot live on that basis, we will have to really interpret what is an office of profit. Therefore, all these considerations are there. We have come with this Bill to protect definitely, some hon. Members. We have not minced words. We have given it in the Statement of Objects and Reasons that 40 hon. Members are likely to be affected and a lot of expenditure will be incurred. Therefore, again I may submit that it is not me, or, the Government which can exempt them. This august House and that august House will have to apply their minds and then a give a verdict whether to exempt it or not exempt it. (Continued by 3S/PK)

 

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