Friday, May 20, 2022

'Hypocrisy And Double Standards'

'You do this in Jharkhand. ... Nobody has considered these posts to be monetary offices of profit ... This legislation is about recognising a reality, and that is the real answer. The opposition to this Bill is motivated.'

'Hypocrisy And Double Standards'

Mr. Chairman, Sir, I am grateful for this opportunity to respond. I have heard my friend in rapt attention and despite the several fallacies of his arguments, each of his points require very specific response. 

'Office of Profit' has acquired an acronym Oop, which is perhaps reflective of the chaos and confusion. If you pronounce that acronym Oop, the chaos and confusion is inherent in that acronym itself. But my friends on the opposite side are obviously trying to contribute more and more to that chaos and confusion. From a discussion on a Bill on the Office of Profit, they have repeatedly tried to convert it to a discussion on a Bill of perplexity and pandemonium. But, may I deal with the issues on three fronts? My friend challenged the manner in which this House is proposing to deal with the subject and to pass or not pass the Bill. And he, then, dealt with the merits of the matter. So, may I firstly start with the manner of passing of this Bill? 

My friend referred to it being a bad day for Parliament. I ask him and his supporters: Is it very glorious for you to have participated, through no less than the Leader of the Opposition, in meetings which pre-decided that the Office of Profit Bill will be taken up sometime today and then, to renege on a commitment which your party's senior representative had made along with others? 

Is it fair and glorious for you to draw the equation in 'either-or' format -- either terrorism or office of profit where there is no mutual exclusivity between the two? There is no question of both not being important; there is no question of this House not discussing both. You heard the Minister a short while ago saying that we shall sit as late as we like to discuss terror which, of course, as you know well has been discussed yesterday in some detail. Therefore, where is the question of 'either-or'? Where is the question of a choice? 

As parliamentarians, as commonsensical citizens and as lawyers, we know that there is nothing sacrosanct about 31st. If the Election Commission has given time five, seven or ten times earlier, it is entitled, in its own discretion, to give time. And, I don't think they are going to consult you before they give or do not give time. So, why do you interpose this hypothetical situation, create a red-herring that this House wants to discuss this now to prevent something happening on 31st or to have something happening on 31st. (Interruptions)

You talk of the manner of passing this Bill. Is it very glorious for you not to follow and not to support a repeated ruling of the Chair? That perhaps is your idea of parliamentary democracy -- not to follow the ruling of the Chair.  To obstruct the House or walk out of the House on other issues when both, terror and the Office of Profit Bill are liable to be discussed today, and shall be discussed today...(Interruptions)

So, therefore, don't try to mislead the people of the country about the manner. The manner is the only democratic manner of passing it. On the contrary, if I may say so, you are responsible for obstructing the House, for delaying proceedings, for taking the valuable time of Parliament and painting a picture of 'either or' situation when none exists. 

Coming now to the second issue which has been involved, and that is, the issue of Parliamentary passage of a Bill, Presidential assent or no assent, and the entire procedure of Article 111 of the Constitution. My friend to whom I listened with rapt attention, unfortunately, is guilty of fallacy upon fallacy, and let me list a few of the fallacies, and then, deal with them, one by one. His first fallacy is, implicitly right through his address, that Parliament does something wrong, if it even dares to discuss a matter, and then to pass a Bill, which has been returned to Parliament by the President; that is the implicit theme of his address, and that in doing so, Parliament is doing something unconstitutional, Parliament is doing something wrong, Parliament is doing something erroneous....(Interruptions)... That is implicit in what you said. 

Shri Arun Jaitley:  Don't answer an argument which I have not addressed. 

Dr Abhishek Manu Singhvi: That is implicit in what you said because, you are painting a picture of Parliament versus the President, which equation is precisely not there. It is the same equation, which you painted, when you said a moment ago, either office of profit or terrorism. 


Deputy Chairman: Mr. Jaitley, please don't intervene. 

Dr Abhishek Manu Singhvi: Can I remind my learned friend that it is the equation of 'either or' which you are trying to paint in every situation? 

The third fallacy is, the party in Opposition, will say that the Bill is unconstitutional, and that will make it unconstitutional. By definition, an unconstitutional Bill should not be passed by Parliament. But, why is it unconstitutional? It is because you say so. As Alice in Wonderland said, "Something is wrong because, I, Alice in Wonderland, say so." But, what is unconstitutional about it? Let me remind the hon. Member and his Party that, unfortunately, for you, and perhaps, for us, the entity which decides constitutionality, is yet to come into the picture, and it comes into the picture not when a document is a Bill, but, when it becomes an Act, and that entity is the Supreme Court of India. So, let us wait for the Supreme Court of India to pronounce it unconstitutional or to validate it. Let us not give an advance certification in a self-serving manner, and then say, it is unconstitutional, and we should not pass it. If this is so, then, you would be deciding it. But, unfortunately, for you, the interpretation of the Constitution is entrusted to the Supreme Court. 

The next fallacy is that there are limitations on Parliamentary power, and as far as two limitations are concerned, I entirely agree with you. But, unfortunately, you have smuggled the third limitation. The first limitation is, the legislative competence, which is not an issue today, we are not transgressing or encroaching on any State power. The second limitation is that ultimately what Parliament passes, will be held or not held to be constitutional by the Courts. So, there is a limitation of ex post facto judicial review. 

But, let me remind the hon. Member and the Party he represents that there is no third limitation on Parliamentary power. Article 111 of the Constitution is certainly not that limitation. Presidential reference back is certainly not a third limitation. Article 79 is certainly not a third limitation. Indeed, my friend's argument suggests a complete vote of no confidence in the House and the Parliament to which he belongs. It suggests a vote of no confidence in the very institution of Parliament. But, let me remind you that merely because, for whatever reasons, you happen to be one of the few parties in this House which have decided to oppose this Bill, let not hard politics make bad conventions, bad precedents, bad law. 

You are dragging the President and the office of President into a political arena. In the last few days and weeks, I have heard with astonishment arguments that the President should refer this Bill for advisory jurisdiction to the Supreme Court. I have heard, with astonishment, arguments that the President can or should override the Parliament. It was a topic of debate on television. I have heard issues as to whether the President can delay such matters. Why are these issues being raised? These issues are being raised because you have deliberately misled the nation and this House on the meaning and scope of Article 111 with which I wish to start.

Now, it is interesting to note that if you had done your Constitutional homework, you would have emphasised the last five words of this Article. And the last five words of this Article are so unusual as not to be found, virtually, in any provision of the Constitution, and virtually, in any other Constitution of the world. Those words, if I may remind you,--I am sure you have not forgotten it, but your community overlooked them in your addresses--are: 

"The President shall not withhold assent." 

Surely, we, you, the House, the President, the nation, are all bound by the words of this small book, which we call, the Constitution of India. And let me remind you of another part of your constitutional homework that these very five words were missing in the draft Article which came for approval before the Constituent Assembly. The Constituent Assembly, prior to Article 111, had before it Article 76. And if you read the books on this, you will find that Article 76, in its original form, did not have these crucial words. A debate arose, an issue was raised, and it was said that, ultimately, in this country, for right or wrong, for good or bad, we have adopted a constitutional system of parliamentary democracy under which, barring two or three exceptional situations, the President of India follows the system of a constitutional entity and does not rule but raise. He follows, by 400 years' precedents, broadly, the contours of the status of the Queen of England. And, therefore, the Article did not have these words. These words, after discussion, were inserted. What does that mean? For you it means that you are guilty, just now, of advocating a deliberate violation by this House of the intent of the framers. You want to violate the spirit and the letter of intent of those who framed this Constitution.

Coming to the third aspect of Article 111, Article 111 represents the Constitutional dialectics of give and take. In the Marxian terms, it represents the thesis, the anti-thesis and the synthesis. That is a Marxian dialectic. But there is a dialectic in this constitutional process also. The Constitution envisages, knows, and accepts, all along, that there may be situations where the Parliament and the President may differ; it does not mean that either is wrong; it does not mean that either is right. It only means that each is a high constitutional functionary and is entitled to the highest respect, the highest reverence and the highest consideration. 

But, ultimately, for those who decide, the framers could not have left it as two disagreeing institutions. So, having anticipated the potential disagreement between these two institutions, the framers created this mechanism and added a proviso to Article 111, and, indeed, the proviso did not have these words. But these words were added, precisely, to envisage the situation which you call immoral and wrong. And you suggest that the President, having spoken on it, this House cannot or should not debate it. The fact that I am debating this or the fact that you are considering it is not the slightest disrespect to the highest holder of the Executive office in this country. 

On the contrary, each and every concern of the President of India has been and must be taken into account. But will that attenuate or circumscribe the sovereign power of this Parliament, which has been entrusted to this body by the Constitution itself? Because if you say so, then you express a vote of no confidence in Parliament; you express a vote of no confidence in the Constitution; you express a vote of no confidence in those who framed the Constitution and express this intent so clearly, so categorically. But let me continue into how you have dragged the President into this political arena; very wrongly. You are aware that the President has a right to send it back for reconsideration. You are equally aware that we have a right to consider and, then, decide as per the wisdom of this House. 

The President chose to send it back. Let me say here that I totally disagree with your picture that the President in sending it back has written down that the Bill is unconstitutional. That is completely misleading again. Please see the President's referral back. There is no question of assuming that the President thinks or says or says that he thinks that it is unconstitutional. I will come to that in a moment. (Interruptions)...

The President sends it back on a referral. The referral is to reconsider it by the Parliament under this article of the Constitution. While the matter is pending in the Parliament, while the Parliament is seized of the matter, while the President quite rightly, in terms of the Constitution, has left it for the time being to the Parliament, you chose to go to public and you chose to go to the President to suggest various alternatives to the President. Is this glorious? Is this correct? Is this a following of the Parliamentary procedure? Is this an adherence to high standards of public life or the Constitutional spirit? You could have waited for the Parliament to debate it. You tried to pre-empt. 

I hear with equal astonishment, utter amazement, your suggestion that the President can and should refer it to the Supreme Court. For this argument, you pressed into service the office of oath. There lies another fallacy. But that fallacy has very grave implications. That fallacy is your premise that the President is entitled under the Indian Constitution to be a judge of potential legislation by referring to his oath. Now, forget this case for a moment because we tend to become exacerbated and excited about the facts of a particular case. But please appreciate the implications of what you have said. If this is correct, then every proposal, every Bill from Parliament can be judged by the President by reference to his oath. The President will decide by reference to his oath, according to you, not according to the President, that a Bill is unconstitutional, violative of Part III or it shockingly violates his oath and, therefore, having so decided, will not give assent. The Supreme Court is, of course, to become irrelevant. But more than that, there is absolutely no power under the Constitution and the President rightly recognises it and all our Presidents have rightly recognised it till now; but you don't recognise that the President has no power under the Constitution to refer and decide matters by reference to a third entity known as the "oath". This will convert our Parliamentary democracy, our Constitutional ethos and the spirit of our Constitution into a totally different field. It may be converted into a Presidential system, partly of the US kind, or it will make it a hybrid which belongs to no species or no category. But it will certainly do violence to the very basis on which our Constitutional structure is premised. So, your reference that the President should consider referring it to the Supreme Court is a deliberate mischief. 

You are also equally aware of the fact that this question of what the President can and can't do arose in several situations. Ultimately, 22 or 25 years before from today, way back in 1974--it is nothing new; it was decided before 1974--it was conclusively settled to rest by the Indian Supreme Court that these questions of the President acting on his own under articles X and Y and being bound under articles A and B will arise frequently. It is a usual thing. Therefore, it arises. We must definitively settle this issue and decide in all the situations the President can act individually. In Shamsher Singh's case, way back in 1974, not two or three or four Judges, seven Judges laid down the law of the land which has withstood the test of time today, after 22 years. They have said, "barring the situation where the President may decide on his own in a dissolution case or where the incumbent Government has lost its majority, the President shall always act on the aid and advice of the Cabinet". If that is so, where is the question of your going to the President or to the Press and suggesting that the President suo motu and separately on his own shall approach the Supreme Court, whether under article 143 for advisory opinion or anything else? Now, to that question, article 79 is no answer. The answer you gave is irrelevant, as far as the Presidential power is concerned. 

Article 79 simply says that the President is part of the Parliamentary process so far as passing of a Bill is concerned. But that is axiomatic. It has been known to us since the 12th Century when the British Queen was also treated as part of the Parliament that one of the two Houses will pass a Bill and the President of the Sovereign will assent to it. In that sense they are part of the Parliamentary process. But that does not mean and no President has ever suggested that it means and no one else has suggested that it means that the President shall have individual discretion in respect of Bills. That again is highly mischievous and misleading. 

But let me remind you that you have not only raised this issue, you have also obstructed Parliament on this issue. You have sought to go to the public and the Press by suggesting that referral of this matter to the Supreme Court by the President without the aid and advice of the Council of Ministers is permissible. Let me remind you also of more recent law, definitive law on the subject. You mentioned article 79 completely irrelevant and unrelated to the subject. But let me remind you again of judgements which have drawn a very, very sharp distinction between the power of the President under article 111 and the power of the President under some special provisions where he does have individual discretion. That is a very interesting theme which makes the precise point which this Government is seeking to make and this House should make and that is this. The President under article 111 can return. The last four words say that if it is returned back by the House, the President shall assent to it. This is the Supreme Court, not me and you, ....


The Supreme Court has described the power of the President and the power of the Parliament precisely under this very provision, i.e. article 111, as compulsory assent. If you want to check up the law -- I don't want to get technical -- it is by five judges, in 2002, 8 SCC-182. 

It said, 

"Being an exercise pertaining to expression of political will, apparently the will of the people, expressed through the legislation passed by the elected representatives, is given prominence by specifically providing for compulsory assent or compulsory consent." 

But it did something more. In the next paragraph, it did something remarkable.