May 11, 2006

Planned sabotage of the Constitution

By: V Sundaram

"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

1 comment:


India should convene a new constituent assembly to draft a new capitalist constitution for the post-nation state world, which Buddhist China may also adopt after it overthrows the evil Communism.
(1) Indian Constitution drafted in 1950 and undergone numerous amendments during one-dominant party system has become outdated and India needs a new constitutional assembly to draft a totally new constitution. Kalki Gaur has proposed a new Draft of a Constitution of India. Just as victorious USA imposed constitutions on Germany, Italy, Japan, Afghanistan and Iraq, similarly British Empire imposed 1950 Constitution on India to keep India week, instable and divided. It is time to convene a new Constitutional Assembly of India to draft de novo a Constitution of India. The 1950 Constitution is badly drafted and became outdated by numerous amendments, and 60 years is a too long a period for a Constitution to remain relevant and suitable for the modern aspirations of a Rising India, the Super Power of the world and in an age where archaic-nations states are giving way for continental-size regional supra-national federations. We need a new Constitution suitable for reunification of Indian Empire and to allow Greater India to emerge in Southeast Asia and Central Asia. It is a time to adopt a new constitution drafted by the new generation of India suitable for Global Power India.
(2) Prakash Karat of the CPM asked for EC reform. Once again, the CPI(M) and the Election Commission of India are on a collision course. In a direct attack on the Election Commission, CPI(M) General Secretary Prakash Karat said he had never seen a more biased Election Commission and wants EC to be accountable. The CPM made it clear that unless something is done to stem the rot, the commission - one of India's finest institutions since independence, will degenerate the way so many other institutions have been destroyed in the country. Bitter with their Bengal experience, where the Election Commission held almost a month long elections spread over five phases, the CPI(M) has now prepared a note that raises the issue of reforming the EC of India. The CPI(M) plans to circulate it among all political parties. The CPI(M) wants a legislation that will clearly spell out the power of the Commission as well as ensure political neutrality. "Here we have a commission that told us to our face, elections in Bengal are held according to Rig veda." said Prakash Karat, on Wednesday, August 30, 2006 in New Delhi. Prakash Karat wants to mould Indian Election Commission to make it similar to Chinese Election Commission and to make Indian Democracy similar to the Chinese democracy, the motherland of every CPM Communist in India. Perhaps Indians should work to overthrow Communism in China and install new Constitution of China similar to Indian Constitution.
(2) Some of the reforms suggested by CPI(M) demanded include: (a) No election commissioner should be associated with any political party even after his retirement. Kalki Gaur supports this reform.
(b) An Election Commissioner should not go on to become a member of any political party or a member of parliament and they should undertake an oath to this effect at the time of appointment The government should consult the leader of the opposition in Lok Sabha and the Chief Justice of India before naming election commissioners There should be greater clarity on the powers of election observers. Kalki Gaur supports this reform.
(3) Whether or not this note changes the way the Election Commission functions, but it will surely generate an intense debate. "It is a democratic country and everyone has the right to express their views. He said that former ECs cannot get associated with politics? I agree with that view," said N Gopalaswamy, Chief Election Commissioner.
(4) Populists and Neoconservatives make following suggestions regarding the Election process, electoral lists:
(A) All such politicians, voters and officials that conspired to enroll illegal aliens from Bangladesh into Indian electoral lists after 1951, should receive mandatory five year jail imprisonment and fine of Rs. 100,000 per case of illegal aliens, and debarred from holding any political office for the period of five years.
(B) All illegal aliens from Bangladesh that entered India after January 1, 1951 and their descendants even if born in India, must be removed from all electoral rolls, and deported from India.
(C) All political organizations that opposed Indian Freedom Movement, or conspired for the partition of India in 1947, and partition of India in 1935, and worked towards secession of Khula from India should be derecognized as political parties in India.
(D) No person holding a criminal record should have right to vote and contest any elections in India.
(E) No person holding any Black money more than Rs. 10 lacs or tax evader for more than Rs. 1 lac should be eligible to contest for any political office. All candidates must get a clearance from Tax authorities that their tax payments are current and they do not hold any black money.
(F) Any act of any government in power using the government officials for furtherance of election campaign must get deterrent punishment.
(5) People of India should adopt the Indian constitution presented in Kalki Gaur Blog URL

(38) Article 38: Election Commission of India
(0)(38B) Article 38B. Election Commission of India
Superintendence, direction and control of elections to be vested in an election commission
(1) The superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all elections to Parliament and to the Legislature of every State and of elections to the offices of President and Vice-President held under this Constitution shall be vested in a Commission (referred to in this Constitution as the Election Commission).
(2) The Election Commission shall consist of the Chief Election Commissioner and such number of other Election Commissioners, if any, as the President may from time to time fix and the appointment of the Chief Election Commissioner and other Election Commissioners shall, subject to the provisions of any law made in that the President makes behalf by Parliament.
(3) When any other Election Commissioner is so appointed the Chief Election Commissioner shall act as the Chairman of the Election Commission.
(4) Before each general election to the House of the People and to the Legislative Assembly of each State, and before the first general election and thereafter before each biennial election to the Legislative Council of each State having such Council, the President may also appoint after consultation with the Election Commission such Regional Commissioners as he may consider necessary to assist the Election Commission in the performance of the functions conferred on the Commission.
(5) Subject to the provisions of any law made by Parliament, the conditions of service and tenure of office of the Election Commissioners and the Regional Commissioners shall be such as the President may by rule determine:
Provided that the Chief Election Commissioner shall not be removed from his office except in like manner and on the like grounds as a Judge of the Supreme Court and the conditions of service of the Chief Election Commissioner shall not be varied to his disadvantage after his appointment:
Provided further that any other Election Commissioner or a Regional Commissioner shall not be removed from office except on the recommendation of the Chief Election Commissioner.
(6) The President, or the Governor of a State, shall, when so requested by the Election Commission, make available to the Election Commission or to a Regional Commissioner such staff as may be necessary for the discharge of the functions conferred on the Election Commission.
(0)(38C) Article 38C. Single Electoral Roll
No person to be ineligible for inclusion in, or to claim to be included in a special, electoral roll on grounds of religion, race, caste or sex
There shall be one general electoral roll for every territorial constituency for election to either House of Parliament or to the House or either House of the Legislature of a State and no person shall be ineligible for inclusion in any such roll or claim to be included in any special electoral roll for any such constituency on grounds only of religion, race, caste, sex or any of them.
(0)(38D) Article 38D. Elections to the House of the People and to the Legislative Assemblies of States to be on the basis of adult suffrage
The elections to the House of the People and to the Legislative Assembly of every State shall be on the basis of adult suffrage; that is to say, every person who is a citizen of India and who is not less than eighteen years of age on such date as may be fixed in that behalf by or under any law made by the appropriate Legislature and is not otherwise disqualified under this Constitution or any law made by the appropriate Legislature on the ground of non-residence, unsoundness of mind, crime or corrupt or illegal practice, shall be entitled to be registered as a voter at any such election.
(0)(38E) Article 38E. Power of Parliament to make provision with respect to elections to Legislatures
Subject to the provisions of this Constitution, Parliament may from time to time by law make provision with respect to all matters relating to, or in connection with, elections to either House of Parliament or to the House or either House of the Legislature of a State including the preparation of electoral rolls, the delimitation of constituencies and all other matters necessary for securing the due constitution of such House or Houses.
(0)(38F) Article 38F. Power of Legislature of a State to make provision with respect to elections to such Legislature
Subject to the provisions of this Constitution and in so far as provision in that behalf is not made by Parliament, the Legislature of a State may from time to time by law make provision with respect to all matters relating to, or in connection with, the elections to the House or either House of the Legislature of the State including the preparation of electoral rolls and all other matters necessary for securing the due constitution of such House or Houses.
(0)(38G) Article 38G. Bar to interference by courts in electoral matters
Notwithstanding anything in this Constitution - (a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies made or purporting to be made, shall not be called in question in any court;
(b) no election to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate Legislature.
(0)(38H) Article 38H. Special provision as to elections to Parliament in the case of Prime Minister and Speaker
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