Sunday, March 26, 2006

Office of Profit and the Legislatures

see previous articles here and here

Cleansing the Polity or changing rules of accountability?

The situation arising out of the recent turn of events has indeed created conditions that could result in widespread disqualifications within the Parliament as well as State Legislatures.

Although the political parties are trying to find ways and means to avoid such a possibility, it should not be forgotten that the situation was brought about precisely because of legislators of all these parties brazenly ignoring the basic provisions of the Constitution that they are sworn to protect. The liberal dispensations of offices of profit were given for patronage and for the very reasons that the Constitution makers wanted to avoid. These parties are now rushing to amend the law not only to protect those against whom the complaints have already been made to the President of India, but also to see that such embarrassments are avoided in the future.

As consultations amongst the political parties, none of whom - whether Congress, BJP, the Left or others - can lay claim to political morality at least in this instance, are continuing, it is increasingly becoming apparent that a simple addition to the list of exempted positions will not serve the purpose.

Considering that ALL the major parties have vested interests in protecting their own legislators even for the future, what is likely is that, apart from additions to the list of exempted positions, a convenient definition of "office of profit" would also be added in the Parliament (Prevention of Disqualification) Act, 1959. A similar exercise may be done by the State Legislatures. Beyond that, the people of India should not be surprised to see one more amendment to the Constitution. The possible amendment could involve shifting the power to determine the question of disqualification of a sitting member of a house for being appointed to an "office of profit", from the Election Commission to the Parliament or the State Legislature, as appropriate, although this would give rise to other issues.

If such a change does happen, there is a chance that the delicate checks and balances that exist under the Constitution now may be disturbed.

Even if the decision to amend the 1959 Act or the Constitution rests with the Legislators of the day, wider consultations and deeper thought are necessary, where constitutional and legal experts and academicians should get actively involved rather than simply leaving the politicians to find devious ways to protect their "offices of profit, power or privilege" on the pretext of selflessly 'serving the people'.

Friday, March 24, 2006

Involuntary Sacrifice


The greatest after Mahatma? (*)

When is a “sacrifice” NOT a sacrifice?

For the Congress Party Chief, Sonia Gandhi, as political historians and analysts will note, the difference of just one day has snatched away from her, the credit of making a real sacrifice and placed her action of resigning the membership of Lok Sabha and the National Advisory Council in quite another category.

As the events related to the “office of profit” issue unfolded in the last few weeks and days, it was clear to all but the naive that the Congress mis-managers in the Government were desperately trying to save their Madame-Chief from the possible ignominy even of being sent a notice from the Election Commission examining a complaint that she was holding an "office of profit" and, therefore, liable to be declared ‘disqualified’ as a Lok Sabha member.

As highlighted in the earlier article, the panic driven game-plan of introducing an Ordinance was very much there and the sudden adjournment of both the Houses sine die could not be explained in any other way. It was a shameful display of subversion of the Constitutional process and was bound to result in the strong reactions from the Opposition reaching up to the high office of the President of India.

Attempts have been made not only by the Congress Party but also Sonia Gandhi herself, to project the Opposition as the culprit. Her statement showing righteous indignation and hurt can fool only the simple folk who are prone to get carried away. Although some inspired news items seemed to suggest that she was not aware of the Ordinance plan being hatched, it is completely unlikely for the President of a party not to be in the know of what was happening. The hare-brained plan went awry.

What option did she have then in the background of the decision in Jaya Bachchan’s case, the representation and the memorandum submitted by the opposition to the President? Her only option then was to do what she did. There was nothing to prevent her from choosing this option earlier in the first place. Getting re-elected to Lok Sabha would not have been a problem and a proper amendment to the 1959 Act, rather than an Ordinance, would have ensured that she could return as the Chairperson of the NAC. At the same time, she could certainly have claimed a moral high ground and scored some points. However, she announced her resignation only when the original game plan failed. THIS delay of just one day shows her action for what it is – a fake attempt to win sympathy and earn praise for her "selflessness".

True to the Congress culture and character, sycophancy has taken over and the party is once again trying to portray her as the paragon of virtue.

Nevertheless, it cannot be denied that the Opposition that was DEMANDING her resignation was taken aback when she did resign. Surprisingly, the most vociferous opposition party, BJP was reported to be surprised by this turn of events. A party that wants to come to power again, should have anticipated all possibilities and should have been prepared for just such an action. Anyway, what is important now is the aftermath of this supposedly minor technical issue of “office of profit” and where it will lead the country’s parliamentary democracy.

Issues that arise

There are certain important issues that arise from the situation as it has emerged.

The first and foremost is the question of what would happen to the complaints that have already been received by the Election Commission about various MPs including Sonia Gandhi. As a disqualification would have to mean disqualification from the day the member of the legislative accepted an “office of profit”, it appears that the complaints would HAVE to be decided regardless of whether the person has resigned in the meantime. If the complaint were not decided, it would mean that a member could avoid the consequences of a disqualification from an earlier date merely by resigning. IF the complaints are pursued to their logical conclusion, there could be a remote and extremely thin possibility that by some extraordinary luck, Sonia Gandhi’s position in NAC would be deemed not to be “office of profit”. It would indeed be a resounding slap on the face of the opposition if that eventuality, howsoever unlikely, materializes. If, on the other hand, the Election Commission concludes, going by Bachchan case, that Sonia Gandhi too was holding an “office of profit”, it would provide scope for more political games.

However, the Congress party is unlikely to take a chance and considering that even many members of the opposition as well as the Left parties face a similar predicament, a way will be found to amend the Parliament (Prevention of Disqualification) Act, 1959. (see here) It also remains to be seen whether an amendment by way of additions to the exempted positions list having retrospective effect would be valid.

This brings to the fore the second important issue that is more relevant for the people of India, if not for the political parties. The Constitutional provisions on “office of profit” were made after due deliberations and keeping in mind the need to ensure that the representatives of the people worked without any conflict of interest. The was not just made for the sake of it or, as some reports say, as a relic of the British past. They are there for a purpose and to keep on adding to the exempted positions list under the Schedule will be making a mockery of the noble and value-based polity that the Constitution makers had tried to build. The sanctity and seriousness with which Article 102 (1) (a) is looked upon even until now, can be clearly seen from the deliberations of the Parliamentary Joint Committee on Offices of Profit (14th Lok Sabha). The Committee, headed by Chandra Bhushan Singh of Samajwadi Party, while considering the appointment of Dr. Kasturirangan, an eminent scientist as Hon. Advisor in the Dept. of Space/ISRO and part time member of the Space Commission concluded that both these positions were “office of profit” and Dr. Kasturirangan could be appointed only by amending the Schedule to the 1959 Act. These conclusions were presented to both the houses just three months back, in December 2005. It is interesting to read the full contents of this Report, which shows the perspective of the Parliament with regard to "office of profit" hitherto. (see here)

When the appointment of an eminent scientist whose services are found invaluable for the country’s progress in the frontiers of science was not found acceptable, it begs the question whether the concept of disqualification envisaged in the Constitution should be allowed to be frustrated for the sake of saving politicians. In fact, it is quite surprising that most of the parties seem to have merrily ignored the provisions of Articles 102 and 192 in this regard, secure in the belief that they could do so as other parties were also sailing in the same boat.

It is, therefore, clear that this is a vital issue that directly concerns the people, even if the political parties feel comfortable in a situation where the members can remain members of parliament/state legislature while holding other offices of profit. To respond to the present situation by simply expanding the list of exempted positions or by introducing a convenient and flexible definition of “office of profit” would be clearly unacceptable.

It remains to be seen which of the political parties have the morality to realise what is 'the right thing to do' and do it.

(*) Postscript consequent to a comment in another blog:
These words of praise were showered by a Congress person on a TV Channel.
---Lok-adhikar, 25.3.06

Wednesday, March 22, 2006

Stooping to Rescue the Congress Chief

Mahatma, the silent spectator

Can you do it?

Both the Houses of Parliament have been adjourned sine die on 22nd March, 2006. No one should have any doubts that this action has been taken to enable the Government to bring out an Ordinance to amend the Parliament (Prevention of Disqualification) Act, 1959.

The sole purpose of the Ordinance, which should see the light of day on the 23rd March, 2006 is purely to save the Congress Party Supremo, Mrs. Sonia Gandhi. If in the bargain, some other Parliamentarians like Karan Singh and Somnath Chatterjee get the benefit of the amendment, the benefit to them is just incidental. This is one more instance of the motivated actions that have guided this Government in many of its actions since it came to power.

Clearly, the complaint initiated at the behest of the Congress powers against Jaya Bachchan has boomeranged and backfired very badly on the Congress Party exposing the immaturity of its department of dirty tricks.

After Jaya Bachchan was declared as disqualified by a Presidential Order, the Samajwadi Party made a tactical error in rushing to pass UP State Legislature (Prevention of Disqualification) Act, 1971, amendment bill. First, if the intention was to save Jaya Bachchan or Amar Singh, the party's legal advisers should have known that only law passed by the Parliament could save a disqualification of a Member of Parliament in terms of Article 102(1)(a). A State Act for this purpose can only save members of either House of the State Legislature who might otherwise face disqualification in terms of Article 192(1)(a) of the Constitution.

Secondly, the Samajwadi Party also made a tactical mistake in the political sense. If they were sure about the possible disqualification of the Congress Chief, they should have anticipated that the Government would somehow try to save her by bringing the amendment that is now being proposed. The amendment to the State law would have been completely justified once the amendment to save Sonia Gandhi was made.

Be that as it may, the country is watching how the Congress party has been trying to break new ground in committing constitutional and other improprieties to sustain and strengthen its power base. It is also a sad reflection on the other components of the UPA particularly the NCP, RJD and the Left parties who remain mute participators in the undesirable machinations of the Congress Party, led by Sonia Gandhi and the Government, led by Manmohan Singh.