Feedback

"It is never the law itself that is in the wrong; it is always some wicked interpreter of the law that has corrupted and abused - Jeremy Bentham.

At the instance of the Congress party playing its usual wicked game of petty chicanery behind the curtain, Jaya Bachchan was disqualified in a huff by the President of India on the advice of the Election Commission. In order to avoid the fate of Jaya Bachchan, Sonia Gandhi made the so- called "supreme sacrifice" of resigning her seat in the Lok Sabha. As if it were part of a planned course of action, the Election Commission of India has also announced that elections will be held in Rae Bareli constituency, the pocket borough of the Nehru family, on 8 May to enable Sonia Gandhi to get back to Lok Sabha under "controlled" conditions. In the meantime, the Congress party has stage-managed to announce that the Parliament which was adjourned sine die to ensure the planned escape of Sonia Gandhi will be reconvened on the 10 May mainly to pass a new legislation for amending the provisions relating to the "office of profit".

The joke about the whole affair relating to the "office of profit" is that Somnath Chatterjee, the Speaker of the Lok Sabha, also comes under the same category as Jaya Bachchan and Sonia Gandhi. As one who is known for his exemplary rectitude and unmatched political values, he has already declared that he would not resign from Lok Sabha. His party has also advised all its members who are likely to be hit by Jaya Bachchan-type disqualification "not to resign". The same stand has been taken by all the other political parties placed in a similar situation.

The President of India has already forwarded some petitions in this regard to the Election Commission for enquiry and report. The Election Commission is now in a state of self-chosen political coma, giving "reasonable time" to all the political parties, to come together on an agreed formula to be put in the garb of a new legislation for extending the list of exempted "offices of profit" under Article 102 of the Indian Constitution.

This controversy about the "office of profit" raises important Constitutional issues that need to be examined and addressed carefully without any delay whatsoever. Article 102 of the Constitution stipulates that "a person shall be disqualified for being chosen as, and for being, a Member of either house of Parliament, if he holds 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". The following are the fundamental issues:

Issue I:

In the absence of any clear definition of "office of profit" in the Constitution, one should interpret these words to imply:

a) any office that is subject to direct or indirect control or supervision of either the government of India or the government of any State.

b) any office that directly enables the person holding it to "profit" ie, derive pecuniary or non-pecuniary benefit or gratification, including any formal or informal ability to grant favours or patronage.

In other words, except those offices that a Member of the Parliament is expected to hold for discharging his responsibilities envisaged in the Constitution itself, (eg Minister, Speaker), all other offices that attract the above two definitions should automatically attract the disqualification. Here, the words "under the government of India and the government of any State" are sufficiently wide as to include an office in any organisation that is subject to the regulatory jurisdiction of either of the two governments.

I cannot help getting the impression that all the political parties politically united in their resolve to pursue different agendas of self-aggrandisement are very anxious to adopt a legislation that would regularise many offices that are already being held by them, which they fear would attract the disqualification as clarified above. If this is allowed to happen it will sound the death knell of the spirit of the Indian Constitution.

Issue II:

There are several Members of Parliament who have already come under the cloud (may I say umbrella?!) of the "office of profit" controversy. There are two questions that arise in this connection:

a) Assuming for a moment that one of these members stands disqualified under Article 102, subject to the interpretation attempted above, would that member be qualified to attend the proceedings of the Parliament and vote on important matters? For example, the Parliament recently passed the Finance Bill. Was it a valid vote?

b) Would it be constitutionally proper for such members that could attract the disqualification in question to take part in the proceedings of the Parliament and vote on the Bill on "office of profit" now under political consultation for adoption in the Parliament to be convened on 10 May, 2006? No accused under the Indian Penal Code is allowed to sit in judgement upon himself.

It is true that the Election Commission of India would advise the President on whether a member stands disqualified or not under the provision in question. However, in such a situation, the Election Commission can at best carry out its scrutiny vis-a-vis the existing law on "office of profit" that may not be fully compliant with the spirit of the Constitution. The Election Commission should not forget the fact that there is no surer sign of a feeble and fumbling law than timidity in penetrating the form to the substance. Environment illuminates the meaning of acts, as context does that of words.

One can argue that the definition of "office of profit" is an issue that is already under scrutiny before the Supreme Court and the decision of the SC should be awaited. Considering the urgency and the far-reaching implications of the issues raised above, perhaps, instead of waiting for individuals and organisations approaching the Supreme Court for justice in a piecemeal manner, the President of India himself could make a reference to the Supreme Court, before the politically-planned infirmities in the proceedings of the Parliament become a "fait accompli" on or after 10 May, 2006 in the garb of a new legislation.

Both the President and the Supreme Court should also look at the costs that the ordinary tax payers of this country have to bear every now and then because of the fleeting and whimsical decisions of individual Members of Parliament to tender their resignation only for the purpose of contesting the elections again at the expense of the government exchequer. This clearly shows that for sacrificing heroes like Sonia Gandhi, the Indian nation is expendable, the Indian Constitution is expendable and above all the mute millions of India are expendable. The most precious thing to be guarded and preserved for posterity is the political interest and the financial interest of the Nehru clan. It should not be taken to mean that I am against the disqualification of the members holding "offices of profit". The President should also request the Supreme Court to examine the Constitutional issue as to whether the total cost of conducting elections in respect of those constituencies where the elected representatives choose to resign in a capricious and self dictatorial manner much before the expiry of the allotted term.

The Congress party and all the Leftist and other parties supporting it in the UPA government in New Delhi seem to be of the view that there can be no true democracy in India unless we have the dynastic democracy of Sonia Gandhi with Rahul Gandhi and Priyanka Gandhi as Ministers in waiting. On the other hand, all the enlightened and responsible citizens of India are definitely of the view that there can be no democracy unless it is a dynamic democracy. When our common people cease to participate, to have a place in the Sun, then all of us will wither in the darkness of decadence. All of us will ultimately become mute, demoralised, lost souls. We have discovered, to our dismay, that those who subscribe to the principles that Jefferson called "self-evident" are in a stark minority in India today and such people in minority are now being called upon to vindicate those principles as never before.

As a concerned citizen, I would appeal to the President of India to consult the Supreme Court immediately, before the Parliament is reconvened on 10 May, 2006, so that one is clear as to "who is" disqualified and "who is not" under Article 102 of the Indian Constitution as it stands at present. At any rate, all those members now under a cloud should not be allowed to participate in the voting relating the proposed legislation for extending the list of "office of profit" exempted under Article 102 of the Constitution.

The Supreme Court cannot remain neutral between the fire-brigade and the fire. Suomoto the Supreme Court can direct the Election Commission to observe the rule of the Constitution in letter and spirit in the same way as it has feigned and acted with great political aplomb if not suavity in respect of Jaya Bachaan. All the members of Parliament, now under a cloud and attracting the Jaya Bachaan type of disqualification, should be treated in the same way without any discrimination by the Election Commission forthwith.

The grim tragedy of India today is that there is total dearth of men like Justice Oliver Wendell Holmes or Justice Felix Frankfurter in the highest echelons of the Indian Judiciary. The nation is badly in need of great judges whose guiding lights are detachment, rigorous integrity in dealing with the facts of a case, refusal to resort to unworthy means, no matter how noble the end and above all selfless dedication to the Court as a sacred institution. I am aware of the fact that Judges too are human. But they should not forget the overridingly important and sacred process of Law. For the highest exercise of judicial duty is to subordinate one’s personal pulls and one’s private views to the Law of which they are all guardians--those impersonal convictions that make a society a civilized community, and not the victims of personal rule. In this context the most pointed words of Justice Oliver Wendell Holmes are very appropriate: “You see how the vague circumference of the notion of duty shrinks and at the same time grows more precise when we wash it with cynical acid and expel everything except the object of our study and duty, the operations of the Law”.

The Election Commission has shocked the Nation by its unnatural alacrity and sensitivity by fixing the date of Sonia’s Election in Rae Barelli on 8th of May. The track record of the Election Commission in the matter of by-elections during the last fifty years particularly in respect of time-frames clearly shows that there has been no undue haste in the past. But in respect of Sonia Gandhi, who is more equal than others, the Election Commission is more interested in complying with this unwritten law of shameful Indian politics today by cleverly avoiding the path of technical violation of the letter of the Constitution. If the honourable citizens of India choose to remain silent, then they would be paving the way for not only the total violation in letter and spirit of the Indian Constitution but also its total decimation in the not very distant future. That is why Harold Laski said: “A constitution, which cannot be constitutionally administered in letter and spirit, will only be an open invitation to an armed revolution”.

The mute silence of our Prime Minister who is ever wafting the aroma of a Silent Revolution all round in respect of the public desirability of the continuance of Navin Chawla in the constitutional position of Election Commissioner has already sent wrong signals to all public servants throughout the country. The meaningful message of our Honourable Prime Minister, uttered in a low, quiet and submerged voice is: “If you have to be magnificently successful in UPA Government, you have to master the science and art of being singularly unscrupulous!”

We are in a desperate situation today with wicked politicians trying to sell the country for themselves. All the highest Constitutional authorities seem to be in a state of coma. They seem to be decided only to be undecided, resolved only to be irresolute, adamant for drift, solid for fluidity and all powerful only to be impotent.

I would conclude in the words of a great poet which are totally applicable to India. It is called
"The Cunning of Reason":

We know
That it
Is the cunning
Of Reason
But does it know it?

Does this knowledge
Make us more cunning
Or more reasonable
Than it is?

Do we outdo it
In reason
Or has it
More cunning
Than we?

V Sundaram

       Send your views to author

---

Do you wish to reach our readers? submit your guest column

Copyright and Disclaimer:
The views expressed in this article are the author's own and not of this website. The author is solely responsible for the contents of this article. This website does not represent or endorse the accuracy, completeness or reliability of any opinion, statement, appeal, advice or any other information in the article. Our readers are free to forward this page URL to anyone. This column may NOT be transmitted or distributed by others in any manner whatsoever (other than forwarding or weblisting page URL) without the prior permission from us and the author.

Other articles by:
V Sundaram