Tuesday, March 04, 2008

Office of Profit Case in Supreme Court: ASG's submission

The Supreme Court Bench comprising the Chief Justice, Justices R.V.Raveendran, and J.M.Panchal is currently hearing the challenge to the Parliament (Prevention of Disqualification) Amendment Act, 2006 (known as the Office of Profit Act). Today was the turn of the ASG, Gopal Subramanian, who traced the history of the similar law in U.K. and the scope of similar laws in the U.S. and Canada. The Act has been challenged by the Customer Edication and Research Society and Trinamul Congress MP, Dinesh Trivedi. Last week, Harish Salve argued for the petitioners. The Act exempts 45 offices from disqualification, and protects about 55 MPs. If the Act is set aside, the Government would not have to grope for an issue to go for a mid-term election. The Government would fall on its own, as most of these 55 MPs belong to the ruling coalition and the Left parties. Therefore, the hearing of this case has assumed considerable significance.

Salve attacked the Act on two grounds: the Act was passed with retrospective effect, which is illegal and it was enacted without reference to Joint Parliamentary Committee. It is only after the Act came into force on 18.8.2006, a 15-Member JPC has been formed to consider a comprehensive definition of office of profit, as defined in the Act.

Today, the ASG was grilled by Justice Raveendran on the question whether under Article 103, for a vacancy to occur, determination of the vacancy should precede. The ASG said it should precede. Justice Raveendran, however, disagreed, and said determination would mean there is a dispute. He asked what happens if there is no dispute. Supposing, he said, if an MP declares allegiance to a foreign State on the floor of the House. The CJI asked what if he declares himself as an undischarged insolvent, and yet without resigning, continues to perform the functions of an MP. Is the Speaker then bound to refer that MP’s case to the President, who under Article 103, would in turn obtain the opinion of the E.C.?

The ASG was of the view that by mere occurrence of disqualification, the Speaker is not capable of discounting the MP’s vote. Vote can be discounted only if there is a cessation of membership, he said. He said the decision with regard to disqualification is the sine qua non. If there is no declaration/decision, there is no vacancy.

According to the ASG, Article 103 consciously gave the power to disqualify to the President. It is of great importance; the Speaker or the E.C. can do it, but the task was given to the President, he said. Once a question arises under Article 102(1)(a), then Parliament could enact a law, as there is no break in Membership of the House. In the case of Jaya Bachan, it was declared vacant. In the case of the other MPs, it was not the case and the Amendment Act came into force before they were disqualified and their seats declared vacant, and the E.C. took the new Act into consideration, while deciding other cases.

The ASG has also made written submissions to the Bench.
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