New Delhi: Constitutional experts are sharply divided on the Government’s move to bring in an Ordinance to keep certain posts outside the purview of ‘office of profit’.
Former Law Minister and Rajya Sabha Member Ram Jethmalani said there was no threat of any kind facing any MP or other elected legislators on the issue of ‘office of profit’.
In a letter to Home Minister Shivraj Patil, he said no Ordinance was necessary to validate some elections and felt that Jaya Bachchan should never have been disqualified by the President.
Taking a contrary view, noted Constitutional experts and senior lawyers Rajiv Dhavan and P N Lekhi termed the move as a ‘fraud on Parliamentary democracy’ reminiscient of the black days of Emergency.
They demanded that President A P J Abdul Kalam should neither sign the Ordinance nor prorogue Parliament.
“No person or post is higher than the institution of Parliamentary democracy. Working of Parliament cannot be suspended to make way for promulgating an Ordinance to shield a person or post,” Dhavan said.
He said to suspend Parliament and create an artificial situation in order to push through the Ordinance was also a fraud on Ordinance power under Article 123 of the Constitution.
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Both Lekhi and Dhavan said this kind of tinkering with the functioning of the Costitution reminded them of Emergency when Constitutional and Parliamentary norms were given a complete go by
Jethmalani, however, said: “I do not see any serious objection in the House being prorogued to enable an Ordinance to be passed. My recollection is that there has been previous instances of this kind. However, a prorogation seems to be unnecessary.”
Lekhi said: “it was a violence done by abuse of power over law and amounted to subversion of Constitutional norms.”
Dhavan said disqualification has to be made on principles and not ad hoc power politics.
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