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RS Debate: OOP

'Verdict Of Parliament'

'We have come with this Bill to protect definitely, some hon. Members. We have not minced words. We have given it in the Statement of Objects and Reasons that 40 hon. Members are likely to be affected and a lot of expenditure will be incurred.'

'Verdict Of Parliament'
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Concluding remarks by the law minister as he rose to reply to the debate

Hon. Deputy Chairman, Sir, at the outset, I express my gratitude to all the hon. Members who have, by and large, spoken well on the message of the hon. President. But, before I come on the merits of the comments, I would like to emphasis one thing, in the Parliamentary democracy and traditions of Parliamentary democracy, in that, the role of the head of the State, we havefollowed the British pattern and President occupies a very high office. As they call in Britain 'his Majesty' or 'her Majesty's Government', so, this is the 'Government of the President'. We are the Ministers acting on the allocation of business of the hon. President. 

So, there should be no apprehension in anybody's mind that there is any desire to do anything contrary to the wishes of the President and his name should not be dragged in the controversy at all, as, Sir, this morning, two days ago, after the message was printed. Like the British Queen, the President also does not attend the House every day. They communicate through messages. This is the tradition of Parliamentary democracy. Like the British Queen who communicates to the House her messages, the same pattern we follow in India. The President also communicates through his message and he is within his Constitutional rights to send messages for our guidance. He addresses both Houses of Parliament.

[Interruptions about how because of a written Constitution, India is not comparable]

Sir, we are all advocates. We should have basic etiquette. Just now we were saying that we should discuss this message very seriously with all the consideration to the points suggested by the hon. President in his message. I want particular attention, particularly, focussed to those points. I am very keen that we should discuss, debate and find out the solution because the hon. President has been pleased perhaps to raise several issues. Basically, they relate to three to four points. 

The first issue is, probity in public life and what I have been able to locate from the point of emphasis is probity in public life of old ethical values, avoidance of conflict of interests and respect for the institution of democracy. Sir, there can be no two opinions on this and we have very keen desire that we should promote all the values of our Parliamentary democracy. But, there are certain issues which have been judicially decided, for example, Parliament's power.

Sir, in the same Article, which provides disqualification, the power has been conferred on the Parliament. It says, '...other than an office declared by Parliament by law not to disqualify its holder.' So, these two lines are very important. On the one hand, the Constitution says we shall not hold office of profit. But, in the next lines, added to it, it says, 'other than offices declared by Parliament' which are not offices of profit or exempted. So, when Parliament exercise these rights, it is the duty of Parliament -- Parliament applies its power -- and this is what exactly has been said in several cases. 

Under Article 102(1)(a), of course, Parliament has the jurisdiction to declare an office as not to disqualify its holder, for example, Sibu Soren's Case. For the benefit of the hon. Members who have spoken, the Sibu Soren case was in 2001. And then, the most important case in the legal history of India on this particular issue -- Parliament power and Parliament legislating retrospectively -- is a case of a Five-Judge Bench of the Supreme Court headed by one of the greatest judges, Justice Hidayatullah, Justice Sikri and Justice A.N. Ray who became the Chief Justices and one of them had the privilege to be the Chairman of this House, Justice Hidayatullah. 

What do they say? I will not go into the details. They said categorically two things. They said: Parliament has power to exempt those persons who are likely to be disqualified for office of profit. And then, while doing so, if they are removing the disqualification retrospectively, it is very much within the power of Parliament. I will just read out one thing and this was argued by the great M.C. Chagla and the Supreme Court answered, 'great stress was laid on the word 'declared' under 191. But, we are unable to imply any limitation on the power of the legislature.' So, there are no limitations.

Morality, this and that are all political arguments which Arun normally raises when he has no legal argument to advance. That is his eloquence, I know. He is a young man full of energy. What can he do when he has no legal point? He has to argue on morality. But, what he has not replied is Kanta Kathuria's case. Whether you are denying legislature's competence to declare any office of profit exempted. A great stress was laid on the word 'declared' in that article. But, we are unable to imply any limitation on the power of the legislature.

The second point is, again, apprehension that it may not be a healthy practice and this power might be abused in a particular case. Or, no grounds, again said emphatically, for limiting the powers of the legislature. This House must take cognisance of this. When the hon. President of India has sent a message what is the importance of the message? He is within his right to send the message. And, he feels that hereinafter we should evolve better ethical principles so that there is no conflict of interests in the functioning of Parliament. There should not be any executive influence on the legislatures. They, perhaps, moved the President to make this reference under Article 111 which says, 'the President may...specified provisions thereof... will consider the desirability of introducing any such amendments....' 

The President has not suggested any amendment to this Bill. Hon. President has raised general points 1, 2 and 3. And, we have to seriously consider them. I would have been very happy, rather than importing politics into it, we could have considered them and I would have replied them point-by-point, because we are not less committed in the matter of public morality or, for that matter, probity or, principles. Great sermons have been delivered to us. I have 35 clean years of political life. We know when we come to Parliament it is our duty to assist the Chair in conducting the business of the House. What had happened in the morning? On one pretext or the other they are just postponing consideration of this message. This is not relevant. 

We must take each point which has been mentioned in the message -- evolution of generic and comprehensive criteria; the implication of exempting of the names of holders of offices legitimately disqualifying a Member; and, soundness and propriety of law in making the applicability of the amendment retrospectively. These are very noble points which have been raised. As they come from the hon. President, we should satisfy him by debate not by fighting each other, not by acrimony. This is not parliamentary etiquette or democracy. We should satisfy the hon. President that Parliament has considered his viewpoints very seriously and that we are very grateful to the hon. President for having made these points. It will enable us better options. 

Who denies that there can't be better options on these issues? There is an issue of tainted ministers. There is an issue of disqualification. There is an issue of ethical value in Parliament. Recently, the Committees have gone into several issues regarding parliamentary democracy and strengthening the parliamentary democracy. Several issues are pending with us. If we will not allow our mind to those points clearly and with dedication, we will reach nowhere. Then, whom will you blame? 

Let me tell you the history. The first amendment in the Constitution came by 42nd Amendment, I think Mr. Arun will be aware of it. It was annulled by 44th Amendment. What was the 42nd Amendment? It was that the Office of Profit is not defined in the Constitution, let a comprehensive list of the offices of profits be drawn so that no MP should occupy those offices. It is the one practice which is being followed in Britain even now. The Parliament declares, by a Resolution, that these are Offices of Profit. And, every now and then, they go on adding to them. It is a big list that was invoked in the 42nd Amendment, but it was annulled in 44th Amendment. 

The law that I am protecting before you is the constitutional provision 102, adopted in the 44th Amendment. Now, this is the provision, today, in the Constitution. Thereafter a Standing Committee on Office of Profit also went into it. But somehow or the other we have not been able to coin a definition because of several judgements. The Supreme Court says that we cannot create a basket. In Sibu Soren's case they say, "A practical will, not pedantic basket of tests must guide the courts to arrive at an appropriate conclusion". We have to examine all these things. 

And, then, if the Constitution could be amended.... The amended Constitution, for Anti-defection Law, in the Tenth Schedule, I put it in the Constitution. Thereafter, the Anti-defection Law has faced several difficulties till today in interpretation. So, this is a question that is very relevant. Times have come that of public days, (sic) public morality, and criticism by media. I am one of those who believe that media has a role in parliamentary democracy. But Parliament is supreme in deciding policy matters. The media can be guiding us. We can take a note of the public priority. But are you going to abdicate your own power in Parliament to discuss objectively the message of the hon. President? 

I agree with my senior colleagues, Mr. Ram and Mr. Jalan, that it is for the first time that the hon. President has been pleased to send a message. And, every now and then, we would like to have messages from the President for our guidance because we are his Government. When he says that it is his Government, he really says that it is his Government. There can be no question of defying the President. You are using wrong constitutional provision. I was surprised when it was canvassed by a delegation of the Opposition that the President can resort to article 143. This kind of argument from legal luminaries is being advanced that ignoring the Cabinet he can proceed under Article 143. I am surprised to what extent you are taking the nation to this falsehood. We cannot accept this proposition that you can bypass Parliament or the Cabinet in democracy. 

The President is the father figure in the Constitution. And, we are always very keen to have guidance from him. We always like to give the highest consideration to the suggestions made by this high office. Therefore, don't say this, and, for God's sake put a full stop to what you did today. This is high time you realise it. You attack the Election Commission, you attack the President, you attack, sometimes, the courts. This is not the way. ..(Interruptions)... You may go on raising voices. ..(Interruptions)...No; this is not the way. If you want every institution to be attacked, and if this tendency continues, then, nobody can defend Parliamentary democracy. You don't allow us to defend. You don't allow the Question Hour submissions. This is not the way we should act. 

You had been in power. You enjoyed power for nine years and we had tremendous regard for each Minister. Today you don't allow us to make submissions. This is where we must ponder over and this is the job we have been entrusted by the nation. Though the mandate of the public is that this side should govern, tomorrow, you may be there or anybody else may be there. Now, you are maligning your own colleagues. I am very much surprised that you are particularly making allegations against sitting Members of Parliament that they are greedy, they are bad. They are serving the people. Don't you press everyday that you include Members of Parliament to supervise development work of their districts or constituencies? What is their office of profit in it? Is there any greed in it? Because you don't see eye to eye with the Left, therefore, attack them in whatever manner you can. This is not the spirit of the Constitution. Therefore, you use the word, lalach, or 'office of profit.' 

What is it? Members of Parliament do not function throughout the year. If they go to their constituencies and supervise the development work of that area or the adjoining area, there is no big office in it. So, we will examine this. We are prepared to sit with you. But for God's sake, let us come to a consensus. After all, what are we discussing today? We are only discussing how a Member of Parliament's prestige can be defended, how we can exactly know what an office of profit is, and what we should exempt. Those Members of Parliament; sitting Members of Parliament, who are under attack, none of the petitions has been filed with full material or particulars of disqualification. This is the careless manner in which they are treating their own colleagues. We should give full particulars that this is the way the man is disqualified. Now, you are making inquiries and saying that give us this and that record. You must do your homework. If anybody is going to be disqualified, and if a serious charge is levied against a sitting Member, then, I must request that if allegations are made against a sitting Member of Parliament, they should be made with full responsibility and with full particulars of the alleged misconduct. But that does not mean... ..(Interruptions)... 

I am replying to what was said. Therefore, Sir, right from Kantha Kathuria versus Manak Chand 1970 SC 702 -- Shri Arun Jaitley may have a look at it, he was a Minister, he knows it -- that retrospective legislation is valid. Secondly, there is the Shibu Soren's case. Recently, in the hon. Member, Shrimati Jaya Bachchan's case, the Supreme Court has again given the same guidelines that we cannot live on that basis, we will have to really interpret what is an office of profit. Therefore, all these considerations are there. We have come with this Bill to protect definitely, some hon. Members. We have not minced words. We have given it in the Statement of Objects and Reasons that 40 hon. Members are likely to be affected and a lot of expenditure will be incurred. Therefore, again I may submit that it is not me, or, the Government which can exempt them. This august House and that august House will have to apply their minds and then a give a verdict whether to exempt 

This is a wholesome principle. The Constitution empowers Parliament. When Parliament is empowered, it gives its verdict and we should respect the verdict of Parliament. Therefore, all these fallacious arguments, they are creating a whip, still, on this issue nothing unusual has happened. All the Leaders of Opposition are exempted under this very law. All the Chief Whips are enjoying this facility under this very law. All Commissions of national importance have been exempted under this law. But when it came to certain other party leaders, they are sore about it. Either say tomorrow that we won't accept these perks and other things, we will work for free. But all these have been accepted. And, now, there is no other procedure by which you can exempt. 

We have come to Parliament. Parliament has debated it once, and the hon. President of India has raised these points. I have elaborately explained and I am with within my rights, as a Minister, to say that retrospective legislation is valid. It has been done and upheld by the court; and Parliament has the powers to do it. But, one thing I would like to say before I conclude is that various important issues have been raised. After the 42nd and 44th amendments, new points have been raised. And, now, comes to the fore the issue of involving a generic and comprehensive criteria as just, fair and reasonable which can be applied across the States and Union Territories in a clear and transparent manner. This is a challenging job and it can be undertaken only if all the parties join us. 

On probity, there should be no partisan attitude; on integrity, there should be no partisan attitude; on conflict of interest, there should be no partisan attitude; and, this Government, particularly, is very keen to make any improvement if it is possible within the constitutional limits. We will be very willing to ask this House to constitute a Committee and get going immediately after this Bill is passed. My friend, Mr. Yechury, suggested -- I have read his article but you must have also read A.G. Noorani's article, and, that, perhaps, Mr. Arun must have missed. You must read what comes in the media. It is not one-way traffic. 

So, therefore, if you are really sincere on promoting probity in public life, this is the time and we should be grateful to the hon. President to have drawn our attention to this issue. After this Bill is passed, the Government will be ready to constitute a Committee of this House, to constitute a Committee of both Houses to go threadbare with the problem and come with a solution. Sir, I, once again, thank all the hon. Members and you, Mr. Deputy Chairman, for giving me this opportunity. Thank you.

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