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Monday, June 27, 2022

Office of Perplexity & Pandemonium

The Bill violates neither the Constitution nor the intent of its framers, and opposition to it is uninformed

Written by Abhishek Singhvi |
June 3, 2006 12:20:07 am

The current chaos and cacophony over the concept of office of profit is the most remarkable validation of its exclamatory acronym “Oops”. Having endured six decades of constitutional anonymity, “Oops” is making up for lost time with unprecedented vengeance.

The framers specifically entrusted the power to exempt or not to exempt offices of profit to Parliament by categorical constitutional mandate in Article 102. They did so without any explicit or, ostensibly, even implied fetter or limitation. In other words, Parliament’s power to decide when to exempt, whom to exempt, how many to exempt and how much to exempt was, at least overtly or ostensibly, not intended to be limited by the framers.

A proposal by an editor of the Indian Law Review reached the Constituent Assembly not to allow Parliament to add to or delete from the list of exemptions. The proposal was discussed and rejected specifically by the framers saying that Parliament must retain the flexibility to exempt. B N Rao, Advisor to the Drafting Committee, suggested that the disqualifications be put in the Constitution itself and not left to Parliament. That again was shot down on the ground that Parliament must retain total flexibility. How are we violating the framers’ intent?

Exemptions were enacted by Parliament innumerable times: in 1950, 1951, 1954, 1959, 1960, 1977, 1993, 1999 and 2000. Since the apparently plenary power of Parliament to exempt is unquestionable, both from constitutional text and from framers’ intent, the only question which can possibly arise is: by merely adding a one-time tranche of 40-odd positions in the present Bill, is Parliament virtually repealing the constitutional concept of OOP?

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Parliament is neither explicitly nor implicitly repealing the OOP concept since every residual post and position in the universe continues to be a disqualification under Indian law, except the 40 exempted ones. In stark contrast, the UK law lists 250-odd disqualifications, leaving all other posts open to UK MPs to assume. The universe of possible disqualifications is thus immeasurably larger in India than in UK, the country of origin of OOP.

Jurists opposed to the Bill paradoxically concede that no less than the apex court specifically upheld retrospective legislation retrospectively exempting an office of profit as valid in the Kanta Kathuria case. Surely a feature upheld as constitutionally valid by the Supreme Court cannot make the present Bill immoral or potentially unconstitutional.

It is not enough to refer to the Narasimha Rao case to contend that once disqualified by the EC, the disqualification would relate back to the date of appointment. That is not the issue. The real issue is: under Article 103, the EC would be obliged to apply the law as it stands amended on the date of adjudication of the pending complaints. If on such date, the law stands amended by an expansion of the list of exempted offices, the EC cannot go behind that law (which stands on the statute book and by which the EC is equally bound). Hence, the amending law would prevent disqualification, provided it becomes law before EC adjudication.

Thirdly, it is a frequent practice that the amending law relates back to the date of the original Act it seeks to amend. That is a normal feature of the very concept of retrospectivity. The Bill would be equally valid if it said that it relates back to the respective dates when the respective offices in the list of exemptions were created. In neither case is retrospectivity per se legally pernicious.

India is nowhere even near contemplating repeal or deletion of the basic constitutional concept of OOP. This is in stark contrast to other parts of the Commonwealth. In Canada, the Lortie Commission recommended abandonment of OOP. In Australia, two Royal Commissions have demanded its repeal.

The antipathy to OOP arose in the context of the perceived contemporary irrelevance of the concept. Historically, there was a perpetual state of hostility and antagonism between the British Crown and Parliament. In that context, it was thought necessary that MPs should be insulated to the extreme from any influence by the British executive. A very far cry indeed from the present-day form of Cabinet Government, where there is a hyphenated link between the legislature and the cabinet. Indeed, in contemporary Parliamentary democracy globally and not only in India, the cabinet is nothing more than a very special committee of the legislature. The separation of powers in the sense that term is bandied about is nothing but a chimera and a fiction. Nevertheless, I, for one, would strongly oppose any move to abandon OOP as a concept. But it would be equally wrong to see the present Bill as a de facto repeal of the constitutional concept which it nowhere seeks to do and, indeed, cannot do.

If by uniformity of an all-India enactment is meant the power to cover MLAs and MLCs also, it is clear that Parliament cannot legislate for such State legislators. It has no legislative competence to do so. Nor is it possible for a Parliamentary enactment to equate certain state offices (eg Ranchi Development Authority) with central offices (eg. National Advisory Council).

Secondly, if Parliament makes a value judgement and exempts, say, 20 offices, is it possible to say that the Parliamentary legislation is unconstitutional or immoral because it does not exempt another 20 such offices, which may be perceived to be similar? On this principle, how would any central or state exempting statute, specifically permitted by the Constitution, exempt any law?

The President has the full right to raise questions and those queries are entitled to the highest respect and to a detailed response. But the Opposition is doing nothing but playing opportunistic and irresponsible politics. I have a new Biblical phrase for them: “Do not allow others to do that which you do yourselves.” What is good for Jharkhand is immoral for India. What is valid for the Jharkhand assembly is unconstitutional when done by Parliament. This is not even politics; it is expediency, it is preaching without practice.

Equally irresponsible is the repeated suggestion of the Opposition to the EC to indulge in some kind of competitive adjudication by embarking on a race against time (or at least a race against Parliament) by disqualifying legislators even before Parliament meets and even during pendency of the Bill with Parliament and the President. Such utterances expose the Opposition’s true motives.

The writer is a Member of Parliament, national spokesperson of the Congress party and a senior advocate

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