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For all its ulterior motives in banning blogs in India in the aftermath of the Mumbai Terrorist Train Blasts, the Congress lead UPA Government had yesterday the taste of blog power. Last week the Central Cabinet decided to return the Office of Profit Bill to Parliament ignoring the President's recommendation. All the mainstream media pretty wrote off the issue saying the President had no other option but to give his assent. On Sunday Offstumped was the first ahead oto bring to light that the President could exercise his rights under Article 143 and refer the matter to the Supreme Court. The NDA on Monday heeding the proposal put forth by Offstumped took the matter to the President and urged him to exercise Article 143. The power of blogs could be seen in the reaction of the Congress and CPI on this with Priyaranjan Dasmunshi spending a sleepless night accusing the NDA of setting the wrong precedent. The CPI's Gurudas Dasgupta was even worse by suggesting that the Parliament was supreme implying that it could get away with passing Unconstitutional Laws. The Times of India on Tuesday ran a story saying that the Congress was now reconsidering its stance and thinking of ways to mollify the president. Read On for the whole story of how Offstumped brought Article 143 to light :

Discarding President A P J Abdul Kalam's suggestion to junk the office-of-profit Bill for a comprehensive legislation on the controversial issue, the Indian Government and its Union Cabinet of ministers on Saturday decided to present the Bill in its original form again before Parliament during the Monsoon session. This is bound to leave the President with no option but to give his assent to the Bill according to the Indian Constitution if President Kalam were to go by accepted precedent on the matter. The whole issue demonstrates the lop-sided priorities of the Manmohan Singh, Sonia Gandhi Congress lead UPA Government and its partners in crime the Communist Parties lead by Prakash Karat and Sitaram Yechury.

Its been 11 days since the 7-11 serial train blasts when terror struck Mumbai. The past 11 days, mouthing platitudes aside the Government has not demonstrated any tangible actions by way of policy announcements or operational deployments or diplomatic initiatives to do justice by the 200 odd victims of Mumbai Terrorism. Instead we have this shameless and naked power grab by the Union Cabinet in pushing through with this legislation which is completely about preserving those in power and does not have a single word in its entire body of text about protecting public interest. That at a time when the nation has witnessed its worst incident in terrorism that the Government has the gall to even spend a single waking minute on anything but service and protecting the public interest speaks volumes about the ethics and values of the Manmohan Singh Government and the CPI-M.

What is even more apalling is the rationale offered by unnamed cabinet sources in Indian news media reports for this shameful self serving act of the Union Cabinet.

Rationale 1 - First of all, it felt that enacting a comprehensive/omnibus legislation, as desired by the President, was going to be a time-consuming exercise


What is the goddam hurry. What public interest is being ill served by a delay that a Government at a time of war by terrorists should burn midnight oil to hastily approve bringing back a legislation of dubious constitutional validity. The answer is provided by these shameful sources in the second rationale.

Rationale 2 - would render a significant 32 MPs supporting the UPA coalition vulnerable to the prospect of disqualification by Election Commission.

There you go. So this is no longer about public interest but about keeping the allies happy so that this spineless government can survive another day.

Rationale 3 - coming up with a unanimous definition of what constitutes 'profit' is not going to be easy. "How can you define 'profit'?" asked a source, adding, "it is as good as attempting to define what is 'negligence' or for that matter 'just and fair'."


Reflecting the absolute laziness and bankruptcy of intellect, the Government has insulted the founding fathers of the Indian Constitution and India's first Prime Minister Jawaharlal Nehru. On 3rd April 2006 Offstumped http://o3.indiatimes.com/yossarin/archive/2006/04/03/587191.aspx based on an extensive analysis of the Constituent Assembly debates had shown specifically the founding father's intent in inserting this clause as well as specifically Nehru's views on how the legislature should define profit. That these lazy congress ministers and media hacks spent no time in either studying history or learning from the founding fathers is reflected in this inane and asinine attitude to legislating. For what express purpose does the legislature exist. It is to debate these issues rather than sweep all that is inconvenient under the carpet.

Rationale 4 - Cabinet members also held that the idea of pan/Indian law, as suggested by President, wasn't feasible because whether the posts held by MLAs are offices of profit belong to province of state legislatures.


Another completely irrelevant rationale. The president through his advisors had on more than one occassion clarified that his reference was to state specific offices that the Centre had legislated on such as the Wakf Board in Uttar Pradesh and the Tirumala Tirupathi Devasthanam, TTD, in Andhra Pradesh to save T. Subbirami Reddy who has reduced the holiest of temples in India to his personal fiefdom over the years having managed to secure the TTD Chairmanship whenever the Congress was in power.

Rationale 5 - Legal eagles in the cabinet were also convinced that the President's suggestion for enaction of a new legislation was 'unimplementable'.

So this is the first time we are lead to believe that there are indeed legal eagles in the Union Cabinet. These must be the same legal eagles who misled the government to begin with in trying to hasten an ordinance by adjourning parliament prematurely. If the Government's decisions were to be influenced by these legal eagles we can expect many such legal fiascos where the Supreme Court had to rebuke the Government for over stepping its bounds be it the Bofors case, be it reservations, be it president's rule in Bihar. The list goes on. So if Manmohan Singh allowing his judgement to be overruled by legal eagles in the Cabinet, doomed is his cabinet.

At a time when the mood of the nation is angry and unforgiving that the Union Cabinet deemed it fit to push through a legislation which is about ZERO percent public interest and 100 percent public servant goes to show that this Government has no respect for the will of the people and all it cares about is self preservation. That it will go to the extent of diluting the constitution and insulting a sitting president to preserve itself is amazing. Never before in Indian Democracy has the will of the President so shamelessly been disregarded and the President forced to toe the line of a self serving cabinet.

The Indian people have no more patience for this spineless government. It has done nothing to protect and secure the public interest in the area of terrorism while going out of its way to undermine the constituion. The BJP's Arun Jaitley has ratched up the rhetoric from the opposition benches on the issue. But the BJP does not have the numbers to make a difference. So does Dr. Kalam have any options.

Kalam has powers under article 143 to refer the bill to the Supreme Court for its opinion on the constitutionality.

POWER OF PRESIDENT TO CONSULT SUPREME COURT


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Till now, the President has referred questions of constitutional validity matters to the Supreme Court on more than ten occasions. The nature of references has been the constitutionality of an existing law, the constitutionality of a Bill presented for the President's assent, the implementation of an international agreement, the constitutionality and vires of a draft Bill to be moved in Parliament, the respective jurisdiction of the Legislature and the superior courts in relation to the power of the former to punish for contempt, interpretation of constitutional provisions relating to election of the President, powers of an inter-state water disputes tribunal and power of a State to legislate in regard to such tribunal, whether a Hindu temple or religious structure existed at a particular place , and consultation between Chief Justice of India and his brother judges in the matter of appointments of Supreme Court and High Courts judges and the transfer of the latter.

The references made by the President to the apex court so far have been on the constitutionality of the Delhi Laws Act, 1912 , the Kerala Education Bill, 1959, Implementation of the Indo-Pakistan Agreement on Berubari, the Sea Customs Act, 1878, the Presidential Election, 1974, the Special Courts Bill, 1979, the Cauvery Water Disputes Tribunal, the Ayodhya matter , the Jammu & Kashmir Resettlement Bill, the Judges case and the Constitutionality of the Election Commission's Orders on the Gujarat Elections filed on August 19, 2002.

Under Article 143(1) of the Constitution, if at any time it appears to the President that a question of law or fact has arisen, or is likely to arise, which is of such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court upon it, he may refer the question to that court for consideration and the court may, after such hearing as it thinks fit, report to the President its opinion thereon.

The President may, notwithstanding anything in the proviso to Article 131, refer a dispute of the kind mentioned in the said proviso to the Supreme Court for opinion and the Supreme Court shall, after such hearing as it thinks fit, report to the President its opinion thereon.

This Article confers upon the President the power to consult the Supreme Court upon any question of public importance as the President may think fit, whether of law or of fact and whether or not such questions relate to the functions and duties of the President. The President's opinion as to the question being of public importance is not open to question.

It is not necessary that the question on which the opinion of the court is sought must have arisen actually. It is competent for the President to make a reference at an anterior stage, namely when he is satisfied that such question ' is likely to arise'.

Clause (1) of Article 143 empowers the President to refer to the Supreme Court a question of law or fact which has arisen or is likely to arise. In case, the court has already pronounced a judgement on a question of law then it can not be said that a doubt exist regarding that question. The President can refer a question of law only when the Supreme Court has not decided it. The advisory jurisdiction under Article 143 is not an appellate jurisdiction of the Supreme Court over its own decisions. The Executive has no power to ask the Supreme Court to revise its decision.


While under Clause (2), it is obligatory on the Supreme Court to entertain a reference and to report to the President its opinion thereon, the Court has, under Clause (1) a discretion in the matter and may, in a proper case, decline to express any opinion on the questions submitted to it. For example:


Where the question referred to is a political one, as distinguished from the constitutional validity of a Bill or Act.


Where it is incapable of being answered.


Where the question is hypothetical or speculative or superfluous. But the mere possibility that a pending Bill may undergo changes in course of legislation, would not make the question of constitutionality of a pending Bill hypothetical.


Where it is vague--unless the vagueness is cleared by the written briefs and submissions of the parties before the court.


Where the court considers that the question does not arise in the facts and circumstances of the case.


It is for the President to determine what question should be referred, including a pending Bill, on the other hand, the Supreme Court cannot go beyond the question referred and discuss other questions because any doubts may have arisen relating to them.

A reference on the question of constitutionality of a pending Bill neither encroaches upon the functions and privileges of the legislature, nor supplants Article 31 of the Constitution.

If the reference raises a question of law or fact which is justiciable. the court can not refuse to give its opinion on the mere ground of expedience or propriety.

Offstumped Bottomline: While the embers of the funeral pyres in Mumbai have not yet cooled and the soil on the graves is still moist, the Union Cabinet has shamelessly promoted self preservation over the Indian Constitution. Offstumped calls upon President Kalam to redeem the faith that billions of Indians have reposed in him by exercising his powers in ways not imagined before and stall the Office of Profit Bill from becoming law of the land. Even if this means staking his Presidency on it.