Author: Soli J. Sorabjee
Publication: The Indian Express
Date: March 24, 2006
URL: http://indianexpress.com/story/992.html
Introduction: No one profits if some office
holders become objects of political worship
With the resignation of Sonia Gandhi as chairperson
of the National Advisory Council and from Parliament, the prime motivation
for the proposed ordinance probably no longer survives. However, it is not
certain whether other MPs will follow Sonia Gandhi's example. Nor is it certain
that the proposed ordinance will not be enacted.
Under our constitutional scheme, an ordinance
can be promulgated when it is necessary to take immediate action on account
of compelling urgency which cannot brook delay. Our Supreme Court has categorically
ruled that "the power to promulgate an ordinance is essentially a power
to be used to meet an extraordinary situation and it cannot be allowed to
be perverted to serve political ends...it would most certainly be a colourable
exercise of power for the government to ignore the legislature".
The action of adjourning Parliament sine die
when the Parliament was in session is prima facie unconstitutional. A somewhat
similar question arose before the Supreme Court in the case of State of Punjab
vs Sat Pal. The question whether the governor can justifiably prorogue the
legislature when it is in session and in the midst of its legislative work
did not squarely arise for consideration. However the Supreme Court observed
that, "When that happens the motives of the Governor may conceivably
be questioned on the ground of an alleged want of good faith and abuse of
constitutional powers".
One wonders what was the tearing urgency of
adjourning Parliament sine die and thereby scuttle parliamentary business?
The government's explanation that 16 bills, including the budget, were passed
and not much legislative business was left is patently untenable. Important
bills, including the Communal Violence Bill 2005, were pending. The explanation
is also disingenuous. It is plain that the entire object of this device of
adjourning Parliament was to pave the way for an ordinance in order to save
some high-powered members, including Sonia Gandhi, from incurring disqualification
and their consequent removal from Parliament.
It is true that Parliament (Prevention of
Disqualification) Act 1959 requires amendment. There is no definition of 'an
office of profit'. Judicial decisions have given varying interpretations to
this expression. It is best to remove ambiguity by enacting a comprehensive
statutory definition. It would be conducive to certainty if certain offices
are specifically mentioned in the Act so as not to incur disqualification.
However amendment to a parliamentary law has to be done after debate in Parliament
and not by the circuitous method of a hurried and clandestine ordinance, whose
proposed enactment was fortunately revealed by the Indian Express, which has
rendered signal service by mobilising public opinion.
The vexed question remains: what was the tearing
urgency to adjourn Parliament sine die? Would the heavens have fallen if some
members including Sonia Gandhi had incurred disqualification? There are a
number of options open to prevent this situation. The incumbents of the alleged
office of profit can resign and thus make the complaint filed or to be filed
infructuous. In any case the Election Commission would take some time to determine
whether the members against whom complaints have been made did incur disqualification.
The President would also take his own time before passing his order. During
the interregnum Parliament can amend the 1959 Act, which it is competent to
do even retrospectively. Passage of the amending Act would pose no problem
to the government in view of its majority in the House. Thereafter the persons
who have resigned from the alleged office of profit can be reappointed in
terms of the amended Act. Incurring disqualification is not a criminal act
and does not involve any moral turpitude. It is to the good that Sonia Gandhi
has now decided to resign. However prior to her wise decision the government
did not want to take any chances. The very possibility of Sonia Gandhi incurring
disqualification was too terrifying for it to contemplate. Therefore somehow
that situation has to be averted irrespective of the means employed.
Regrettably the root cause of this outrageous
behaviour is hero worship which is endemic in our country, where personality
cult flourishes. Dr B.R. Ambedkar perceptively pointed out in the Constituent
Assembly that "in India, Bhakti or hero-worship, plays a part in its
politics unequalled in magnitude". He warned that "Bhakti in religion
may be a road to the salvation of the soul. But in politics, Bhakti or hero-worship
is a sure road to degradation and to eventual dictatorship".
We have failed to heed this warning. It was
this passion for Bhakti in politics and hero worship of Indira Gandhi which
led to the imposition of the spurious Emergency in June 1975. It was the same
phenomenon which was responsible for amendment of the Constitution by insertion
of Clause 4 in Article 329-A in order to validate the election of Indira Gandhi
and to over-rule the judgment of the Allahabad High Court, which had invalidated
her election. The amendment was struck down by the Supreme Court as unconstitutional.
It is amazing how lessons of history are not learnt. Excess of zeal and manifestation
of ultra-loyalty frequently prevail over good sense. Remember the admonition
of Justice Louis Brandies of the US Supreme Court that "much harm can
be done by people with excessive zeal but without understanding".
We must always remember the one lesson which
the Father of the Nation steadfastly taught: The end does not justify the
means. A government which professes adherence to moral principles and constitutional
values should never forget Gandhiji's lesson. The government should unequivocally
disclaim any intention of promulgating the proposed ordinance and thereby
establish its moral credentials.
The writer is former attorney general for
India
soli.j.sorabjee@expressindia.com
