May 17, 2021
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Be Practical Yaar

Unlike the Lok Sabha, the Rajya Sabha, on 27 July, with its glittering roll of legal luminaries, witnessed a spirited and educative debate on the controversial Parliament (Prevention of Disqualification) Amendment Bill, 2006 on the Office of Profit i

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The law minister's opening statement as he moved the bill

Sir, I move

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

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

[Interruptions, walk-outs etc]

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

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

(b) The implications of including for exemption the names of office, the holding of which is alleged to disqualify a member and in relation to which petitions for disqualification are already under process by the competent authority, and 

(c) soundness and propriety of law in making applicability of amendment retrospectively. 

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

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

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

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

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

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

[The question was proposed.]

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