This scribe had criticized President Kalam for signing the Office of Profit (OoP) Bill to make it law. The argument was simple. The President is under oath to protect the Constitution. That is his first priority. He returned the Bill to Parliament for reconsideration without signing it because he considered it legally flawed. Apart from expressing other concerns, the President questioned the "soundness and propriety of law in making the applicability of the amendment retrospectively". Parliament returned the Bill for him to sign without amending it, but acknowledged that his concerns were valid. It appointed a Joint Parliamentary Commission (JPC) to address his concerns. Under the existing law 40 MPs would have been immediately unseated, with more to follow. The President signed the unamended Bill, which he considered legally flawed. So no MP was unseated. Thegovernment remained secure. Was Parliament motivated in amending the existing law? Until this writing, not one meeting of the JPC has taken place.
My criticism of the President perhaps hurt his admirers. They are legion. Someof them have argued that while the President has a right to return the Bill for reconsideration by Parliament, once the Bill isreconsidered and resubmitted to him, he is constitutionally responsible and bound to give assent to it. Likewise when a Bill isreturned, Parliament is constitutionally bound and responsible to reconsider it, but Parliament has the right to return the Bill to thePresident after reconsideration, with or without any amendment.
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While they quote Article III of the Constitution correctly, this argument is flawed. What Article III does not say is as important as what it does. It provides no time frame for the President to sign the returned Bill. A precedent might relevantly be recalled. President Zail Singh sat over a Bill without signing it, and the Bill eventually was abandoned. Had Parliament not acknowledged the relevance of President Kalam’s objections to the OoP Bill, and had it not appointed the JPC, the President might have signed it. After Parliament conceded that the President’s concerns were justified, should not the President have delayed signing the Bill until the recommendations of the JPC were incorporated in the Bill? The premature signing of a Bill, acknowledged as being flawed legally, seemed a clear impropriety. The President was ill-advised to sign the Bill. His haste has aroused irresponsible and unwarranted speculation about political bargains, including one about a second term for him! Such scurrilous speculation is extremely unfortunate. This issue is far from dead.
Trinamul Congress MP Dinesh Trivedi’s petition, challenging the constitutionality of the OoP Law, is being presently heard in the Supreme Court. A battery of lawyers headed by Mr Harish Salve is arguing in favour of the petition. A three member Bench, presided over by Chief Justice KG Balakrishnan, is hearing the petition.
The petition states: "The Impugned Act has been passed with retrospective effect solely to protect about 40 sitting members of Parliament, who had been facing disqualification proceedings before the Election Commission. The statement of objects and reasons does not even attempt to provide any rational or discernible basis of classification." Clearly, the petition questions the motive for changing the existing law.
In Para 22 (III) the petition pointedly asks whether "the offices of profit which have been included by the Impugned Act in the Schedule to the Parliament (Prevention of Disqualification) Act, 1959 are based on any rational criteria".
The government presented its counter affidavit as a rejoinder to the petition. The rejoinder quoted precedents to justify Parliament’s power to enact legislation with retrospective effect. Responding to the specific question regarding criteria for deciding the offices of profit, thegovernment’s rejoinder stated that "in response to the contents of paragraph 22 (III), I submit that the offices are included to fulfill the objective of the amendment, i.e. to prevent by-election in over 40 seats and prevent unnecessary expenditure".
On the question of criteria for determining the offices of profit, the petitioner and thegovernment therefore do seem to agree. Both have stated that the purpose of the amendment was to protect 40 sitting members of Parliament. It remains to be seen how the Supreme Court decides on the petition. The next date of hearing is May 9th, when arguments will take place. It is expected that the judgment will be delivered before the end of July.
If the Supreme Court strikes down the amended Office of Profit Law the results could be devastating. The judgment would very likely come on the heels of the UP assembly poll results, but before the next Presidential election. If Congress does not fare well in the polls of India’s largest state, the existing tensions within the UPA alliance might conceivably reach breaking point. A string of successive poll setbacks has not only eroded the ruling party’s authority with allies, it has also demoralized the party within. The blame game within the Congress is at present in murmurs. It could become deafening if the UP poll results are unfavourable. All this could further complicate the political alliances and agreements required to push through the desired presidential candidate. In other words, there is an ominous possibility of an even more fractured polity before the next Presidential election.
Given this scenario, might one expect a President to emerge who could confront an extremely fractured polity and an unstablegovernment? Is it not possible that, in the event, circumstances may compel the President to adopt a more interventionist role? Constitutions are not dry text on paper. They determine how governance is actually carried out. They inform men of flesh and blood how they must conduct themselves within law and convention as commonly perceived. But perceptions change with events. Constitutional interpretation evolves with political experience. It is just possible that fast changing coalition politics, and fractured parties, may bring drastic change in the commonly held perception about the President’s role.
For such change, our clearly written Constitution may not present any great hurdles. Our present commonly held perceptions and interpretations may initially come in the way. But the force of coming events could transform them.The Supreme Court judgment on the Office of Profit law could become a watershed in national politics.
People might, then, usefully rethink on whether or not President Kalam should have signed the Bill before amendments were introduced.
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Rajinder Puri can be contacted at rajinderpuri2000@yahoo.com
