08-17-2006, 06:59 PM
<!--emo&:bcow--><img src='style_emoticons/<#EMO_DIR#>/b_cowboy.gif' border='0' style='vertical-align:middle' alt='b_cowboy.gif' /><!--endemo--> Kalam should not sign Office of Profit Bill
by N.H. Hingorani
THE controversial Office of Profit Bill, without any modification or removal of the objections indicated by President Abdul Kalam in his message to Parliament, was introduced in the Rajya Sabha on July 25, 2006. The Bill, which has been now passed by the Lok Sabha and Rajya Sabha, and is awaiting Presidential assent, would adversely affect the dignity of the office of the President.
While the legalisation, with retrospective effect from April 4, 1959, of the disqualification incurred or likely to be incurred by the holders of Office of Profit currently discharging executive, judicial and legislative powers, may be politically expedient to the stability of UPA Government, it is constitutionally incorrect.
Now, can the President withhold his assent to the unmodified controversial Bill presented to him again by Parliament? After all, Article 111 provides that if the Bill is reconsidered and passed again by the Houses with or without amendment and presented to the President for assent, the President shall not withhold assent thereon. But then, such provision must be read along with other constitutional provisions.
Article 361 mandates that the President shall not be answerable to any Court for the exercise and performance of the powers and duties of his office. The reason is obvious. The President is, under Article 74(1), to act on the advice of his Council of Ministers. However, under Article 60, the President swears to âpreserve, protect and defend the Constitution and the lawâ. Article 61 provides a sanction against the violation of the Constitution by the President by impeachment. Such provisions lead to the inescapable conclusion that there is a sphere of Presidentâs activity or function for which he is personally responsible.
Let us consider the situation when the President is required by the Council of Ministers to do an act which, in the opinion of the President, is violative of the Constitution. The obvious proposition is the President can refuse to do such act. Let me explain by referring to the example given by the well known constitutional authority H.M. Seervai.
Article 85 of the Constitution provides that the President shall, from time to time, summon each House of Parliament to meet at such time and place as he thinks fit, but six months shall not intervene between the last sitting in one session and the date appointed for the first sitting in the next session. If the Council of Ministers advises the President to call the next session after a year, by which time the Ministry hopes to overcome its political difficulties, it is the duty of the President, consistent with his obligation under Article 60, to disregard such advice and call a session of the two Houses as required by Article 85 (1) of the Constitution.
Coming back to the Office of Profit Bill, the giving of assent or withholding of the assent by the President is anyway a part of the legislative process distinct from exercise of any of his executive power. The President is not bound by the advice of the Council of Ministers if such advice compels him to violate the Constitution or where the competence of Parliament to pass such a Bill is itself in doubt. Rather, it is the constitutional obligation of the President to withhold his assent to the controversial unmodified Bill in order to âprotect and defend the Constitutionâ should he believe that the Bill is constitutionally invalid.
In the prevailing situation, it is imperative to have an authoritative decision of the Supreme Court or its opinion on a Presidential reference under Article 143 of the Constitution on the constitutional validity of the controversial Bill, so as to prevent break down of the constitutional machinery.
The writer is a senior advocate, Supreme Court of India.
by N.H. Hingorani
THE controversial Office of Profit Bill, without any modification or removal of the objections indicated by President Abdul Kalam in his message to Parliament, was introduced in the Rajya Sabha on July 25, 2006. The Bill, which has been now passed by the Lok Sabha and Rajya Sabha, and is awaiting Presidential assent, would adversely affect the dignity of the office of the President.
While the legalisation, with retrospective effect from April 4, 1959, of the disqualification incurred or likely to be incurred by the holders of Office of Profit currently discharging executive, judicial and legislative powers, may be politically expedient to the stability of UPA Government, it is constitutionally incorrect.
Now, can the President withhold his assent to the unmodified controversial Bill presented to him again by Parliament? After all, Article 111 provides that if the Bill is reconsidered and passed again by the Houses with or without amendment and presented to the President for assent, the President shall not withhold assent thereon. But then, such provision must be read along with other constitutional provisions.
Article 361 mandates that the President shall not be answerable to any Court for the exercise and performance of the powers and duties of his office. The reason is obvious. The President is, under Article 74(1), to act on the advice of his Council of Ministers. However, under Article 60, the President swears to âpreserve, protect and defend the Constitution and the lawâ. Article 61 provides a sanction against the violation of the Constitution by the President by impeachment. Such provisions lead to the inescapable conclusion that there is a sphere of Presidentâs activity or function for which he is personally responsible.
Let us consider the situation when the President is required by the Council of Ministers to do an act which, in the opinion of the President, is violative of the Constitution. The obvious proposition is the President can refuse to do such act. Let me explain by referring to the example given by the well known constitutional authority H.M. Seervai.
Article 85 of the Constitution provides that the President shall, from time to time, summon each House of Parliament to meet at such time and place as he thinks fit, but six months shall not intervene between the last sitting in one session and the date appointed for the first sitting in the next session. If the Council of Ministers advises the President to call the next session after a year, by which time the Ministry hopes to overcome its political difficulties, it is the duty of the President, consistent with his obligation under Article 60, to disregard such advice and call a session of the two Houses as required by Article 85 (1) of the Constitution.
Coming back to the Office of Profit Bill, the giving of assent or withholding of the assent by the President is anyway a part of the legislative process distinct from exercise of any of his executive power. The President is not bound by the advice of the Council of Ministers if such advice compels him to violate the Constitution or where the competence of Parliament to pass such a Bill is itself in doubt. Rather, it is the constitutional obligation of the President to withhold his assent to the controversial unmodified Bill in order to âprotect and defend the Constitutionâ should he believe that the Bill is constitutionally invalid.
In the prevailing situation, it is imperative to have an authoritative decision of the Supreme Court or its opinion on a Presidential reference under Article 143 of the Constitution on the constitutional validity of the controversial Bill, so as to prevent break down of the constitutional machinery.
The writer is a senior advocate, Supreme Court of India.