When President A P J Abdul Kalam consulted former Chief Justice of India V N Khare and two retired judges informally on the Office of Profit Bill, the Congress top brass started getting jittery that the President was becoming 'hyperactive' on the issue.
Their fears were well-founded, as President Kalam not only refused to sign the Bill but, instead of sending it back to the prime minister, he sent it to the Speaker of the Lok Sabha and the Chairman of the Rajya Sabha.
According to sources, President Kalam was keeping track of developments in the Office of Profit controversy and was well aware of the nuances.
When the Bill came up for his approval he had two considerations.
One, he didn't want to burn his fingers like in 2005 when, while in Moscow and in the dead of night, he approved the Union Cabinet's decision to impose President's Rule in Bihar. And, second, he firmly believed that the manner in which exemptions were sought in the Bill for some offices of profit was not constitutionally correct.
On May 25, when the Bill came to him for approval he felt the manner in which exemptions were given was erratic. If Lok Sabha Speaker Somnath Chatterjee was given an exemption for heading the Santiniketan Development Authority, why were similar posts in other states not included in the list?
For example, Bharat Bhavan in Madhya Pradesh, which also promotes art and culture, was not included in the exempted list.
Why amend the Constitution only to accommodate a few who risk losing their membership of the House?
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.
When the Bill contained more than 40 exemptions, most experts told the President that it subverted the principle behind the original concept.
With the President's action, all the MPs who supported the Bill -- including from the Left parties -- have lost the high moral ground.
Anil Dewan, constitutional expert and senior advocate, told rediff.com, "Do you think MPs will criticise and oppose the organisation they head outside Parliament? It is Parliament's prime duty to question the Executive and its actions. This Bill defeats that role."
In his action President Kalam was guided by Article 111 of the Constitution, which states:
Assent to Bills: When a Bill has been passed by the Houses of Parliament, it shall be presented to the President, and the President shall declare either that he assents to the Bill, or that he withholds assent therefrom: provided that the President may, as soon as possible after the presentation to him of a Bill for assent, return the Bill if it is not a Money Bill to the Houses with a message requesting that they will reconsider the Bill or any specified provisions thereof and, in particular, will consider the desirability of introducing any such amendments as he may recommend in his message, and when a Bill is so returned, the Houses shall reconsider the Bill accordingly, and if the Bill is passed again by the Houses with or without amendment and presented to the President for assent, the President shall not withhold assent therefrom.
Thus, President Kalam had three choices.
The President has little choice but to act 'under the advice of the Council of Ministers or the prime minister', but under Article 111 the President need not 'act under advice' but can take an independent view.
Kalam has opted for the third option.
A senior Supreme Court advocate says, "What is unusual here is that Kalam has used his independent powers. He has not acted on the advice of the Council of Ministers or the prime minister as was the case in the last two precedents when Presidents sent back Bills passed by Parliament."
On October 19, 1986, Parliament passed the Indian Post Office (Amendment) Bill which approved the interception of personal correspondence of citizens, and submitted it to President Giani Zail Singh.
The President simply sat on the Bill.
When V P Singh became prime minister he requested President R Venkatraman to send it back to Parliament.
Another Bill relating to perks and privileges of members of Parliament was also 'returned on the advice' of Prime Minister V P Singh since the Bill had 'procedural infirmities'.
Kalam's refusal to sign the OoP bill is thus unique, for here the President has made full use of his right to take independent decisions under Article 111. For this, Kalam's decision deserves praise.
Complete coverage: Office of profit issue
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