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 theproviso 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 sentto 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 forreconsideration of the Bill under the proviso to article 111 of theConstitution. The message of the President was published in Rajya Sabha,Parliamentary Bulletin, Part II on May 31, 2006. (Interruptions)
[Interruptions, walk-outs etc]
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Sir, the President, in his message, directed that whilereconsidering the Parliament (Prevention of Disqualification) Amendment Bill,2006, as passed by both the Houses of Parliament, the following issues may bespecifically addressed, namely:
(a) Evolution of generic and comprehensive criteria which are just, fair andreasonable and can be applied across all States and Union Territories in a clearand transparent manner;
(b) The implications of including for exemption the names of office, the holdingof which is alleged to disqualify a member and in relation to which petitionsfor disqualification are already under process by the competent authority, and
(c) soundness and propriety of law in making applicability of amendmentretrospectively.
Sir, I may state here that the expression "holds any office of profit underthe Government" occurring in article 102 of the Constitution has nowherebeen defined precisely. Its scope has to be gathered from the pronouncementsmade, from time to time, by the Supreme Court and of the High Courts as to whatconstitutes 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 theconcerned office is an "office of profit."
Sir, article 102 (1) (a) of the Constitution provides that a person shall bedisqualified for being chosen as, and for being, a Member of either House ofParliament, if he holds an office of profit under the Government of India or theGovernment of any State, I may here then say, other than office declared byParliament by law not to disqualify its holder. So, it is the Parliament whichhas the power to exempt those Members of Parliament who are holding the officeof profit.
The Constitution of India demarcates the legislative powers between the Unionand States to deal with the disqualification of Members of Parliament andmembers of the State Legislatures. The power of the State Legislatures, inrespect of their members is contained in article 191 (1) (a) of the Constitutionand, accordingly, State Legislatures have enacted the Prevention ofDisqualification Acts for their respective States. Any attempt by Parliament tolay down generic criteria which will apply to the members of State Assembliesmay be seen as an encroachment by the Parliament in the domain of StateLegislatures.
Sir, the Parliament and State Legislatures have plenary powers of legislationwithin the fields assigned to them, and subject to certain constitutional andjudicially recognised restrictions can legislate prospectively as well asretrospectively. There is a famous case in Rajasthan in which the Supreme Courtgave its ruling. The Supreme Court in Kanta Kathuria versus Manak Chand AIR1970 SC 694 held that article 191 of the Constitution itself recognises thepower of the Legislature of the State to declare by law that the holder of anoffice shall not be disqualified for being chosen as a Member and for being amember of the Legislature. There is nothing in the words of the article toindicate that this declaration cannot be made with retrospective effect. Theword 'declared' in article 191 (1) (a) does not imply any limitation, Sir, I amlaying emphasis on 'limitation on the powers of the legislature.' Thedeclaration can be made effective as from an early date. This is the rationaleof the law of 1970, Supreme Court.
The Government has, therefore, carefully and respectfully considered the messageof the hon. President and it is of the view that the Bill should again beconsidered and passed by the Parliament.
Sir, I commend the Bill for the consideration of this august House.
[The question was proposed.]
