April 04, 2020
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RS Debate: OOP

A Total Sense Of Futility

'We have not paid sufficient attention and reverence to the message which we have received from the President ... When you are caught napping and found guilty of a breach of the Constitution, you must gracefully accept the consequences of the breach

A Total Sense Of Futility

Sir, I must confess that I speak with a total sense of futility. I know that this Bill has been passed by both the Houses before. It is going to be passed today. It will receive the compulsory assent of the President, as is required by the Constitution. It will inevitably meet the gauntlet of the Supreme Court, and, of course, the gauntlet of the court of the people...


But, Sir, even though I speak with a sense of futility, I think, it is a very, very important occasion today. I am not a constitutional historian, though I must admit that I am a very humble student of the Constitution. As far as my memory goes, this is the first time in the history of our Parliament that a Bill passed has been returned by the President under Article 111 of the Constitution. 

That itself lends some special significance to what is happening today in this House. Sir, the second aspect of the same matter is that it is the President of India, who, by convention and in some cases by law, is bound by the aid and advice of the Cabinet, has decided to refer this matter back to Parliament, knowing fully well that both the Houses of Parliament have passed it. Why has the President done it? He has done it not because he has any constitutional power in that sense. But his power is really moral and spiritual. He represents the conscience of the whole nation. He overrides the consideration of legal sovereignty. His sovereignty is of a totally different kind. Sir, I heard some light-hearted reference with the distinction between 'pad' and 'chehra.' But, Sir, no 'pad' is important unless the 'chehra' on it, or behind it, or over it is a person of great moral stature. 'Pad' and 'Chehra' cannot possibly be bifurcated. Sir, the post of the President of India is important because it has been habitually occupied by men of great calibre, whose views are of great importance, and whose views required to be considered with great reverence. 

Sir, I don't accept the charge of  Jaitley that there is something very immoral or underhand or unconstitutional in the manner in which this matter is being brought before the House. I don't accept many of the charges which  Jaitley has made. But, Sir, I have one charge of which I cannot acquit the Government. And that charge is that we have not paid sufficient attention and reverence to the message which we have received from the President. Sir, why I say this, I must make it clear. Every political party in this country has a quest in this Bill. In a sense, every political party is a beneficiary of this Bill. They are not forced beneficiaries, but, as my great friend, Amar Singhji, confessed with his usual candour and humility, he is a beneficiary of this Bill. Sir, we are all beneficiaries of this Bill. I may not be, but because all friends and political parties surrounding me are, I cannot dissociate myself from them. I am also a beneficiary in that sense. Therefore, Sir, we have no reason to speak in terms of morality. We are all dyed deep with a heavy paint of immorality and let us acknowledge that fact and then proceed to justify this Bill and deal with the comments which the respected President of this country has made. 

Sir, we all swear by the Constitution, and I believe that our reverence and fidelity to the Constitution requires that when you are caught napping and found guilty of a breach of the Constitution, you must gracefully accept the consequences of the breach of the Constitution. 

Sir, I may have been a critic of the Congress Party, I may have been a critic of many Congress Presidents, but I wish to repeat a tribute, which I paid before on the floor of this House, that the present President of the Congress Party is the only person who has acted with great constitutional commitment and propriety. She resigned, and she went through the heat and labour of an election during the hot months of April and May. She got a complete respite, a new certificate of good conduct and commendation from the people of this country and came back with honour and re-occupied the position which she vacated at a time. 

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 continues: 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 continues: 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 stopped 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  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.

[* Expunged as order by the Chair]

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.

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. This is the third reason that  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. 

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  Arun Jaitley has said. Thank you, Sir.

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