Being More than a Rubber Stamp

It is not very often that people in India get to see their President exercise his power based on his opinion or independent thinking. The post of the president is meant to be ceremonial and most of the gentlemen who have held it have ensured that it remained by and large ceremonial. Quite recently, the current incumbent of Rashtrapathi Bhavan - Dr. Abdul Kalam chose to express himself by returning the Prevention of Disqualification Amendment Bill 2006, popularly known as the Office of Profit Bill, passed by both the Houses of Parliament.

The entire issue started in March this year when Jaya Bachchan - the former Rajya Sabha MP was disqualified by the Election Commission for holding an Office of Profit. Later it emerged that about 50 members of parliament cutting across the party lines would meet with the same fate if Election Commission were to apply the same law & logic. Primary among those 50 odd MPs were Sonia Gandhi & Somnath Chatterjee. The Manmohan Singh government hurriedly tried to promulgate an ordinance exempting some of the posts as Office of Profit. When it became apparent that an ordinance of this nature is being brought about to save the powers that be, Sonia Gandhi resigned from membership of parliament and did her best to regain the moral high ground. Tax payer's money was spent on an unnecessary by-election for Rae Bareli and Sonia was back in the Lok Sabha, only missing couple of days of the budget session. But that does not solve the problem faced by the 50 odd MPs belonging to both treasury benches and the opposition. As none of them have got themselves the luxury of a safe seat like Sonia Gandhi, they chose not to resign.

In a rare display of unity, the Government and the Opposition came together and drafted an amendment to the Article 102 of the Indian constitution. The amendment bill exempted 56 posts as Office of Profit and that too with retrospective effect. The honourable parliamentarians did not in any way try to analyse the issue in toto or make any attempts to clear any ambiguity surrounding the definition of 'Office of Profit'. What they did was to apply a quick fix solution by excluding certain posts as Office of Profit there by saving 50 odd MPs and a good number of legislators in the States from the axe of disqualification. One interesting thing to note here is that the post that Jaya Bachchan held & for which she was disqualified there by starting of this controversy was not among the 56 offices that were excluded as the Office of Profit. Though BJP kept murmuring that the issue needs to be analysed, they did vote in favour of the amendment as otherwise, so many from their clan - including Chief Ministers Raman Singh, Arjun Munda etc would have turned jobless. The above said bill was quickly ratified in Rajya Sabha as well and was sent to Rashtrapathi Bhavan for President's assent.

It was at this point, the unexpected happened. Abdul Kalam had his own reservations about the amendment and chose to consult the legal experts (one being a former Chief Justice of India, Visheshwar Nath Khare) over that. After doing so, exercising the provisions made available to him under Article 111 of the Indian Constitution, the President returned the bill back to the government refusing his assent. Further, he pointed out that the manner in which the exemptions were sought for some offices of profit were constitutionally incorrect. The office of profit concept was developed by the founding fathers of the Constitution who believed Parliament should and must question the Executive. But since ministers and a few members of Parliament may also hold executive posts while in Parliament, came the idea of giving select and careful exemptions to some offices held by them. The President's message was to make the exemptions list in the Bill more purposeful. The President is right in thinking that when the bill contained as many as 56 exemptions, it very much subverted the principle behind the original concept. Also, he expressed his displeasure in enacting such a law with retrospective effect.

If at all there is any embarassment for someone when the President returns a bill, it should be for all the parties concerned as the bill was passed unanimously. But BJP was so quick in trying to take the moral high ground by saying that the party had opposed the manner in which the bill was passed, right from the beginning. If they are so much against something, why vote for it in the Parliament? Give our politicians half a chance on anything and they would grab it with both the hands with glee.

What makes this incident so special is that this is only the fourth time in history, the President has chosen to exercise his powers this way. The first time it happened, it was in 1951 when Dr. Rajendra Prasad refused to give assent to Hindu Code Bill drafted by the then Law Minister B.R. Ambedkar in the government headed by Jawaharlal Nehru. While Ambedkar resigned from the Government over this, Jawaharlal Nehru waited for 5 years before he could manage to resurrect only a portion of the bill.

The next time an incident of this nature happened was in 1986, when Rajiv Gandhi government had both the Houses of the Parliament pass the Indian Post Office (Amendment) Bill that gave the government all powers to intercept any personal correspondence among the citizens. President Giani Zail Singh did't favour the bill, but instead of rejecting the bill, he chose to sit over it. An enraged Rajiv Gandhi stopped visiting the President and kept his communication to the bare minimum. Few months later, President Zail Singh's term came to an end and Rajiv Gandhi government did not pursue it. However, three years later President Venkataraman returned the bill back to the Parliament on the advice of the then Prime Minister Viswanath Pratap Singh. Unlike United States, the Indian Constitution does not stipulate any time frame for the President to accept or reject the bill. The President may chose to sit over the bill indefinitely.

In 1997, when Inder Kumar Gujral government used Article 356 to dismiss Kalyan Singh led BJP government in Uttar Pradesh, the then President Kocheril Raman Narayanan refused to give his assent. However, Gujral government didn't try do anything fancy after the presidential snub.

After 1997, this is the first time the President has returned the bill back to the Parliament. By doing so, Abdul Kalam has not only shown his dissent to the bill, but has also shown that he has learnt his lessons well, especially after the gentle rap on the knuckles he got from Supreme Court over the Bihar Assembly dissolution in 2005.

One forgotten aspect in this episode is the role of the Election Commission of India. Ever since the issue came into light about 3 months back, it is everyone's knowledge that some 50+ MPs were holding the Office of Profit. It is surprising that the Election Commission, which was so swift in disqualifying Jaya Bachchan has not found time to examine the case w.r.t 50+ MPs and take appropriate action. At the time of writing, Supreme Court had given a knock on the head of EC to expedite the matter.

It would be interesting to see how the government of the day handles the current issue. While the Communists want the government to send the bill back to the President in the same form yet again, the BJP wants a full scale discussion on the issue. Congress, on the other hand has said that it would re-introduce the bill in the Parliament during monsoon session and send it to the President for his assent. As mentioned at the beginning of this post, the post of President is largely ceremonial in India. If the Government presents the bill again, Abdul Kalam would have no choice but to give his assent, irrespective of the reservations he may have.

Things have come to such a pass that the Government doesn't think that it is worth looking at the objections raised on the above said bill by the President, but only thinks about how to somehow get him sign the Bill. As long as those in power doesn't understand the difference between 'work around' and a 'solution', these kind of incidents are bound to occur. But, only when the Presidents chose to come out of their rubber stamp shell.