The Bill expands the list of exemptions to positions from being considered as an office of profit. Moreover, it purports to retrospectively approve the blatant infringement of constitutional provisions by certain MPs. There is scant logic entailing a constitutional violation to be rewarded with retrospective approval. Nor does any consistent reasoning belie the increased exemptions other than clearly protecting the negligent MP's concerned. To bring closure to a political quagmire at any cost, it shows the Congress party's willingness to cast its mind away from the essential morality of its decision-making.
Moreover, the hypocrisy of the government and its leftist allies, is lay threadbare before all. A private citizen's infringement of the law does not give rise to any retrospective approbation. The same principle ought to apply to those in public life too. There is no rational basis upon which politicians should submit to a much lower threshold of probity than ordinary citizens. By piloting this measure, the Congress party has scandalously disregarded the seminal feature of equality before the law.
Adapting George Orwell, the government's attitude seems to be that while all citizens are equal, some perhaps are more equal than others. Indeed, the Bill's intent is so shamefully obvious that the government hasn't even bothered to advance any coherent justification. It reeks of the arrogance of a big state growing bigger evermore, subsumed by the privileges it arrogates steadily to itself with little respect for its citizens.
Indeed, the regularity with which opportunism is dictating the government's policies is contributing to a burgeoning "trust deficit" in the people's perception of the Congress party. This is the danger when short-term considerations are allowed to hold sway.
At the moment, the relationship between the State and its citizens seems to be on a vertical footing with the State at the apex and the citizens at the very bottom. In an ideal democratic set-up, this relationship should be a horizontal one. While the UPA began with a worthy initiative such as the Right to Information Act, since then it has lamentably reverted to the old modus operandi.
On reservations too, the State's contemptuous attitude to the private domain is visible. This troubling aspect has received less attention that it should perhaps due to the immediate focus on the attempts to introduce increased quotas in centrally funded educational institutions. However, the 93rd constitutional amendment upon which the current extension to the reservation programme is premised also represents a serious incursion of the State into the private rights of its citizens.
The amendment, which adds a sub-clause (five) to Article 15 of the constitution-provides that the State may make "any special provision, by law, for the advancement of any socially and educationally backward classes of citizens....in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions..."
While the exclusion of minority educational institutions from the amendment deserves much further scrutiny it will have to be a concern for another day as the subject necessitates a lengthy exposition. However, for present purpose, as clearly outlined by the amendment, it is the right of the State to implement its reservation policies in private educational institutions "unaided by the State" that ought to focus our minds.
The 93rd constitutional amendment is designed to render inoperative the Supreme Court's PA Inamdar judgment delivered in autumn last year. In that case, on the issue of whether the State had a constitutional right to impose its reservation policy on unaided educational institutions, the Court specifically ruled out the permissibility of such action, noting that "Such imposition of quota of State seats or enforcing reservation policy of the State on available seats in unaided professional institutions are acts constituting serious encroachment on the right and autonomy of private professional educational institutions." The Court also determined that such an encroachment into the private orb wasn't a reasonable restriction on the right to carry on an occupation.
By openly circumventing the Inamdar judgment, the government betrays a lack of appreciation for the depth of the legal and philosophical reasoning that led to the Supreme Court's decision. A constitutional clash may be around the corner as Parliament's enactment of an amendment is not determinative of its validity. It is open to question whether the sort of interference with private rights that the government happily contemplates offends the basic structure of the constitution.
In his famous declaration in 1941, the philanthropist J D Rockefeller put it, "I believe that the law was made for man and not man for the law; that government is the servant of the people and not their master," It is a message that this government needs to hear. At odds with the President and the Supreme Court on constitutional issues, the government's cussedness is helping it win few devoted admirers and many devoted critics. With short-term considerations and political expediency as its organising principle, the Congress party calculates that it may gain some votes. However, in the process it is losing its moral compass and the battle of progressive ideas.
Rishabh Bhandari is a lawyer at a global law firm in London. These are his personal views.
first published:June 05, 2006, 12:00 ISTlast updated:June 05, 2006, 12:00 IST
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President Kalam's rejection of the Parliament (Prevention of Disqualification) Amendment Bill 2006 posits fresh difficulties for the government. Better known as the Office of Profit Bill, the President's refusal to assent to its current form is a reflection on the hollowness of the contemporary political culture. It reveals the government's alarming tendency to approach issues with expediency as a sole objective to the detriment of any underlying principles at stake. Embattled already by the reservation row, this is another addition to the government's overflowing cup of public embarrassment and misjudgement.
The Bill expands the list of exemptions to positions from being considered as an office of profit. Moreover, it purports to retrospectively approve the blatant infringement of constitutional provisions by certain MPs. There is scant logic entailing a constitutional violation to be rewarded with retrospective approval. Nor does any consistent reasoning belie the increased exemptions other than clearly protecting the negligent MP's concerned. To bring closure to a political quagmire at any cost, it shows the Congress party's willingness to cast its mind away from the essential morality of its decision-making.
Moreover, the hypocrisy of the government and its leftist allies, is lay threadbare before all. A private citizen's infringement of the law does not give rise to any retrospective approbation. The same principle ought to apply to those in public life too. There is no rational basis upon which politicians should submit to a much lower threshold of probity than ordinary citizens. By piloting this measure, the Congress party has scandalously disregarded the seminal feature of equality before the law.
Adapting George Orwell, the government's attitude seems to be that while all citizens are equal, some perhaps are more equal than others. Indeed, the Bill's intent is so shamefully obvious that the government hasn't even bothered to advance any coherent justification. It reeks of the arrogance of a big state growing bigger evermore, subsumed by the privileges it arrogates steadily to itself with little respect for its citizens.
Indeed, the regularity with which opportunism is dictating the government's policies is contributing to a burgeoning "trust deficit" in the people's perception of the Congress party. This is the danger when short-term considerations are allowed to hold sway.
At the moment, the relationship between the State and its citizens seems to be on a vertical footing with the State at the apex and the citizens at the very bottom. In an ideal democratic set-up, this relationship should be a horizontal one. While the UPA began with a worthy initiative such as the Right to Information Act, since then it has lamentably reverted to the old modus operandi.
On reservations too, the State's contemptuous attitude to the private domain is visible. This troubling aspect has received less attention that it should perhaps due to the immediate focus on the attempts to introduce increased quotas in centrally funded educational institutions. However, the 93rd constitutional amendment upon which the current extension to the reservation programme is premised also represents a serious incursion of the State into the private rights of its citizens.
The amendment, which adds a sub-clause (five) to Article 15 of the constitution-provides that the State may make "any special provision, by law, for the advancement of any socially and educationally backward classes of citizens....in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions..."
While the exclusion of minority educational institutions from the amendment deserves much further scrutiny it will have to be a concern for another day as the subject necessitates a lengthy exposition. However, for present purpose, as clearly outlined by the amendment, it is the right of the State to implement its reservation policies in private educational institutions "unaided by the State" that ought to focus our minds.
The 93rd constitutional amendment is designed to render inoperative the Supreme Court's PA Inamdar judgment delivered in autumn last year. In that case, on the issue of whether the State had a constitutional right to impose its reservation policy on unaided educational institutions, the Court specifically ruled out the permissibility of such action, noting that "Such imposition of quota of State seats or enforcing reservation policy of the State on available seats in unaided professional institutions are acts constituting serious encroachment on the right and autonomy of private professional educational institutions." The Court also determined that such an encroachment into the private orb wasn't a reasonable restriction on the right to carry on an occupation.
By openly circumventing the Inamdar judgment, the government betrays a lack of appreciation for the depth of the legal and philosophical reasoning that led to the Supreme Court's decision. A constitutional clash may be around the corner as Parliament's enactment of an amendment is not determinative of its validity. It is open to question whether the sort of interference with private rights that the government happily contemplates offends the basic structure of the constitution.
In his famous declaration in 1941, the philanthropist J D Rockefeller put it, "I believe that the law was made for man and not man for the law; that government is the servant of the people and not their master," It is a message that this government needs to hear. At odds with the President and the Supreme Court on constitutional issues, the government's cussedness is helping it win few devoted admirers and many devoted critics. With short-term considerations and political expediency as its organising principle, the Congress party calculates that it may gain some votes. However, in the process it is losing its moral compass and the battle of progressive ideas.
Rishabh Bhandari is a lawyer at a global law firm in London. These are his personal views.
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