Rejecting President’s questions is denying what democracy, Constitution mean

It will be rather strange if the attitude of the political parties is one of repudiation of the existence of the power of the President to return the Bill for reconsideration, as this would be questioning the checks and balances inbuilt in the Constitution and will therefore tantamount to a denial of the elements that go to make up the democratic structure of the Constitution.

It is true that in Kantha Kathuria’s case (1969) the Supreme Court had upheld a similar law, passed by the State of Rajasthan retrospectively, excluding the post of Special Government Pleader from the operation of Art 191(1) of the Constitution in regard to the office of profit. This judgment is that of a Constitution Bench of the Supreme Court, but, surprisingly, the Court did not notice Article 190(3)(a) of the Constitution, which is equivalent to Article 101(3)(a), which applies to Members of Parliament.

Under these provisions, if a Member of the Legislative Assembly or a Member of Parliament is disqualified under Article 191(1) or Article 102(1), as the case may be, his “seat shall thereupon become vacant”.

The member who therefore holds an office of profit, not excluded under a “Prevention of Disqualification” Act, would cease to be a member, and, his seat having become vacant, would have to be filled up by the Election Commission by holding elections for that seat.

In case the member disputes the fact that the additional office held by him is not an office of profit, the Governor or the President, shall determine the question in accordance with the decision of the Election Commission of India. The Election Commission of India shall afford an opportunity to the member before arriving at its decision.

But, what is significant is, that a Constitution Bench of the Supreme Court had held in P V Narasimha Rao’s case (1998) that the finding on disqualification will relate back to the date on which the disqualification set in.

In the present case, the peculiar position is, that the question whether the 54 or 56 posts relating to the 45 organisations found in the Table in the Parliament (Prevention of Disqualification) Act, 1959 are offices of profit is foreclosed, by the very inclusion of the said posts in the Act, which declares that certain offices of profit shall not result in disqualification.

The title of S.3 of the Act itself is “Certain offices of profit not to disqualify.” The Bill, therefore, through this legislative declaration, places beyond dispute the character of these offices as offices of profit under the Government. The seats held by the Members of Parliament concerned become vacant on the respective dates when they were appointed to the offices of profit.

If this is the true position under the Constitution, no retrospective legislation by Parliament could possibly be undertaken, which would result in re-inducting a member, whose seat has become vacant.

Such a law would be ultra vires Articles 101(3)(a) and 102(1) of the Constitution. The only alternative is for the member to seek re-election, his resignation being only a formality.

In that event, the member’s holding that office of profit, covered by the Table to the Bill, would no more be a disqualification, as the law, certainly would validly operate prospectively.

There is one aspect, however, which puzzles me.

Section 3(1)(l) and (m) exempt, broadly, trustees of Trusts under Government or office bearers of Societies under Government, from being subject to disqualification under Article 102(1)(a) of the Constitution. One could take serious objection to such a provision.

This would also apply to trusts and societies which come into existence in future. Parliament when passing the law is not even aware of what these offices could be. The provisions virtually nullify the high policy underlying Article 102(1)(a) or Art 191(1)(a).

For example, the Chairman or Director of organizations like the CSIR, which is a Society under the Societies Registration Act, and all its subordinate units, would be protected, even though they are public servants and draw salaries and allowances.

Secondly, though the other provisions attach a condition to the exempted office, that only compensatory allowance can attach to the office, and not salaries, there is no such limitation in sub-clause (l) and (m) of Section 3(1).

Thirdly, far narrower and temporary provisions existed in the Prevention of Disqualification Act, 1953, but these provisions were dropped when the present Act of 1959 was passed, as even the narrower provisions in the 1953 Act were considered too wide.

I have a far more serious objection to the present Bill. Ministerial posts as well as those of Chairman and officers of the Corporations, Societies and Trusts would be largesse which could be distributed by the party in power, or a Chief Minister or a Prime Minister, to those members who are prepared to extend support to the party in power or for maintaining their continued loyalty and support.

The anti-defection law incorporated into the Tenth Schedule to the Constitution sought to curb this vice, but its failure was demonstrated by the need to amend the Schedule, as well as Articles 75 and 164, by the Ninety First Amendment to the Constitution, in 2004.

Parliament was constrained to make this amendment, as the Council of Ministers in some States attained gargantuan proportions, after engineering defections, the post of Minister being exempt from the “Office of Profit” disqualification.

The amendment made by introducing Clause (1A) in Article 75 and Article 164 restricted the size of the Cabinet to 15% of the total Members of the House of People or the Legislative Assembly of the State.

My objection is that whatever was achieved by the 91st Amendment of 2004 to foster democratic norms, has been neutralized by innumerable posts in Trusts and Societies under the Government, now being made available to the party in power, to be distributed to Members of Parliament and of the Legislative Assembly of States.

The present Bill practically emasculates the efficacy of Article 102(1)(a) of the Constitution.

The rationale for such a disqualification is not far to look for.

One is to prevent the conflict between the duties and interest of a legislator. In addition, the Government would be able to control the member’s will, with the consequent loss of independence. Lastly, the potential for manipulating the political system, by holding out the promise of lucrative offices.

One is forced to recall the dark forebodings of Dr Rajendra Prasad on November 26, 1949, when the Constitution was adopted, about those who made great sacrifices and fought for independence so selflessly and fearlessly being tempted by, what he described as “the fishes and loaves” of office, now that the struggle for independence was no more there.

One would be tempted to state that Rajendra Prasad’s fears for the future of the country are becoming a reality.

The ban on the representatives of the people in the Legislative bodies from holding lucrative posts is a fundamental principle of democratic governance. In Britain, this has existed for three centuries from 1707. The United States Constitution carries a similar ban against members of the Congress from holding offices of profit.

The Government of India Act, 1935 also had similar provisions. The present Bill, rather than furthering the democratic process set in motion by prohibiting floor-crossing and defections and by curtailing the number of ministerial posts at the disposal of a Prime Minister or Chief Minister, has set the clock back and is retrograde and regressive.

I am, in these circumstances, convinced that the doubts raised by the President have to be seriously addressed by Parliament.