A rare return

A.P.J. Abdul Kalam becomes the first President to return a Bill to Parliament for reconsideration, bringing to the fore a host of issues.

V.VENKATESAN in New Delhi

ARTICLE 111 of the Constitution dealing with the President's assent to Bills passed by Parliament remained an innocuous provision until President A.P.J. Abdul Kalam discovered its significance on May 30. Mostly used to giving their assent to Bills passed by Parliament, none of Kalam's predecessors believed seriously that the Article is a rare instance of constitutional recognition of the independent exercise of power by the President, as compared with his other functions in aid and advice of the Council of Ministers.

Parliament cannot legislate without the concurrence of all its constituents. As the President is the third constituent of Parliament after the Lok Sabha and the Rajya Sabha, his assent is required to complete the process of legislation. After a Bill has been passed by the two Houses of Parliament, it is sent to the President, who would declare either that he assents to the Bill or that he withholds assent.

Under Article 111 the President may, as soon as possible after the presentation of a Bill to him, return it, if it is not a Money Bill, together with a message requesting that the Houses reconsider the Bill or any provisions thereof and, in particular, consider the desirability of introducing any amendments as he may recommend in his message.

When a Bill is so returned, the Houses shall reconsider it in the light of the presidential message, but if they pass it again, with or without amendment, and present it to the President for assent, the President has no power to withhold his assent to the reconsidered Bill.

Abdul Kalam received the Parliament (Prevention of Disqualification) Amendment Bill, 2006, duly passed by both Houses, for his assent on May 25. The Bill amended the Parliament (Prevention of Disqualification) Act, 1959, so as to add 45 posts to the list of posts that would not be considered offices of profit and Members of Parliament could hold them without fear of disqualification.

Apart from these posts, the Bill also granted the Chairperson of the National Advisory Council (NAC) immunity from disqualification as an MP. The NAC was constituted by the United Progressive Alliance (UPA) government after it came to power at the Centre in 2004 and its chairperson, Sonia Gandhi, quit both the post and her membership of the Lok Sabha following allegations that the chairpersonship of the NAC was an office of profit. She has since been re-elected to the Lok Sabha but has not resumed her chairpersonship of the NAC.

The Bill also exempted persons holding the offices of chairperson or trustee of any trust, whether public or private, and the offices of chairman, presi<147,1,7>dent, vice-president or principal secretary or secretary of the governing body of any society duly registered, from similar disqualification if they are elected to Parliament. The Bill saved the members of Parliament from disqualification retrospectively, and clarified that any petition or reference pending before any court or other authority (the Election Commission, by implication) shall be disposed of in accordance with its provisions.

The 1959 Act was enacted to give effect to Article 102(1)(a) of the Constitution, dealing with disqualification for being chosen as and for being a member of either House of Parliament, if the member held any office of profit under the Government of India or the government of any State, other than an office declared by Parliament by law not to disqualify its holder. Article 102(1)(a) corresponds to Article 191(1)(a), which lays down similar disqualification for being chosen as or for being a member of the Legislative Council or Assembly of a State.

Both these Articles were incorporated with a view to eliminate or reduce the risk of conflict between duty and interest among members of the legislature so as to ensure that the legislator concerned is under no obligation to the executive on account of receiving pecuniary gain or profit from it, which may render him amenable to influence of the executive, while discharging his obligations as a legislator.

In his message sent to the Rajya Sabha Chairman, Abdul Kalam expressed his highest regard for the sagacity and mature wisdom of his fellow parliamentarians and, with due deference to Parliament, said he would like it to reconsider the Bill in the context of the "settled interpretation of the expression `Office of Profit' in Article 102 of the Constitution, and the underlying constitutional principles therein".

He added:

"While reconsidering, among other things, the following may be specifically addressed:

(i) Evolution of generic and comprehensive criteria which are just, fair and reasonable and can be applied across all States and Union Territories in a clear and transparent manner;

(ii) The implication of including for exemption the names of offices the holding of which is alleged to disqualify a member and in relation to which petitions for disqualification are already under process by the competent authority; and

(iii) Soundness and propriety of law in making the applicability of the amendment retrospectively."

Abdul Kalam's suggestion that the criteria evolved should be capable of application to MPs from all States and Union Territories has been misunderstood by the political class to mean that he had suggested uniform legislation by Parliament, encroaching on the States' competence to legislate on this issue.

Sources in the Rashtrapati Bhavan point out that there are several examples in the table annexed to the Bill, where such selective application of criteria has been resorted to. It is asked, for instance, why only the Tripura and West Bengal Khadi and Village Industries Boards have been chosen for exemption, whereas the office-bearers of Khadi and Village Industries Boards in other States could be equally eligible for such exemption from disqualification as an MP. The Uttar Pradesh Development Council has been included, but not Development Councils in the other States. The Board of Wakf, West Bengal, is in the list, but not Wakf Boards in other States. Only the West Bengal State Haj Committee is included in the list, and not Haj Committees in other States.

What Abdul Kalam wants is that MPs holding posts in bodies similar to those mentioned in the Bill should also be, in all fairness, eligible for exemption from disqualification.

Abdul Kalam's objection to the inclusion of posts whose holders have allegedly suffered disqualification and against whom petitions have been filed before the E.C. appears reasonable and in consonance with the principles of the rule of law and natural justice.

Lok Sabha Speaker Somnath Chatterjee is also the Chairman of the Sriniketan Santiniketan Development Authority (SSDA). A Trinamul Congress office-bearer filed a complaint with the President on March 8 that it was an office of profit. The President forwarded it to the E.C. (Under Article 103, the President is bound by the E.C.'s opinion while deciding whether an MP has suffered disqualification.)

Chatterjee has contended that in accordance with a Supreme Court ruling, a position in a statutory body (which the SSDA is) that carried no remuneration is not an office of profit. However, the inclusion of the SSDA in the table annexed to the Bill has led to misgivings that its non-inclusion would have rendered it as an office of profit. According to Chatterjee, this was done to "guard against harassment at the hands of unscrupulous elements".

Recently in Jaya Bachchan v. Union of India, the Supreme Court stated: "It is well settled that where the office carries with it certain emoluments or the order of appointment states that the person appointed is entitled to certain emoluments, then it will be an office of profit, even if the holder of the office chooses not to receive or draw such emoluments. What is relevant is whether pecuniary gain is "receivable" in regard to the office and not whether pecuniary gain is, in fact, received or received negligibly."

Jaya Bachchan, a Member of the Rajya Sabha, held office as Chairperson of the Uttar Pradesh Film Development Council. The Supreme Court upheld her disqualification by the President, in accordance with the E.C.'s finding.

In another case, the Supreme Court had held that there must be an office which exists independently of the holder of the office and that the legislature of a State is empowered to declare that an office of profit of a particular description or name would not disqualify its holder and not that a particular holder of an office of profit would not be disqualified.

The E.C. took nearly six months to decide the Jaya Bachchan case and it has since been flooded with complaints of a similar nature against MPs and MLAs. The Bill will prevent disqualification provided it becomes law before the E.C. adjudicated these cases. The E.C. is examining complaints of disqualification against 40-odd MPs and against more than 200 MLAs in 18 States. The E.C. is neither hastening the hearing of these cases nor deferring it in view of the Bill being returned by the President for reconsideration.

The President's concern with respect to these cases is on the propriety of shielding the occupants of these posts, alleged to be offices of profit, through the amendment, even though the E.C. is examining the substance of these complaints in accordance with the law and its procedure as it stands today. The `implication' he referred to may be hypothetical: imagine a situation where the E.C. finds a legislator guilty of disqualification, whereas the Bill passed by Parliament and seeking the President's assent names the office held by the legislator as one that is not an office of profit. The President, being bound to honour both the E.C.'s opinion and the Bill reconsidered and passed by Parliament, would then face a serious predicament.

Critics of the President's message to Parliament point out that Parliament is competent to remove the disqualification of a Member of Parliament retrospectively and therefore Abdul Kalam's objection in this regard is misplaced. The critics rely on the Supreme Court's judgment in Kanta Kathuria v. Manak Chand Surana (1969) to justify such retrospective legislation.

It is true that power is reserved to the legislature or Parliament to make the declaration that an office would not disqualify its holder. There is nothing in Article 191 or Article 102 to indicate that this declaration cannot be made with retrospective effect. But it gives an advantage to those who stand for election when the disqualification was not so removed as against those who may have kept themselves back because the disability was not removed. As the Supreme Court observed in the Kanta Kathuria case, "that might raise questions of the propriety of such retrospective legislation but not of the capacity to make such laws".

The CPI(M) supported the passage of the Bill in Parliament not because it wanted any "profit", but because the issue, its members said, was one of principle. They said many MPs have to discharge their responsibilities by working on various boards. The Constitution, they said, has made a correct provision in Article 102 on the question, but there is no authentic definition of an office of profit and that was the problem. The CPI(M), therefore, supported the Bill with a condition that a parliamentary committee should be formed to define an office of profit, and the recommendations of that committee should be taken up for consideration and implementation.

There is also the necessity for Parliament to examine whether an MP can be on the board of directors of a private company simultaneously or practise in a court as a lawyer, suggesting that these could lead to conflict of duties and interests. The CPI(M)'s Rajya Sabha member Sitaram Yechury and Lok Sabha member Basudeb Acharia said double standards of this nature would not do the country any good and the legislation would not serve its purpose if such problems were not resolved.

The Bharatiya Janata Party, which opposes the Bill in principle, however, has no explanation why its government in Jharkhand has enacted a similar Bill, the Jharkhand Legislature (Removal of Disqualification) Bill, 2006. Jharkhand Governor Syed Sibte Razi has returned it for reconsideration citing grounds similar to those raised by Abdul Kalam. As many as 13 MLAs of the ruling coalition, including Chief Minister Arjun Munda, allegedly hold offices of profit. The Election Commission has served notices on them asking why their Assembly memberships should not be terminated.

Meanwhile, the National Democratic Alliance (NDA) has urged the E.C. to decide expeditiously the complaints of disqualification against MPs without awaiting the outcome of Parliament's reconsideration of the Amendment Bill. Hopefully, Parliament will reconsider the Bill in the light of all these issues.