03-23-2006, 12:57 AM
<!--QuoteBegin-->QUOTE<!--QuoteEBegin-->Experts flay 'artificial recess for enacting Ordinance'
Pioneer.com
Abraham Thomas/New Delhi
The Government's hurry in enacting an amendment in the law holding certain offices of profit, as not amounting disqualification is well found.
<b>But adjourning the Parliament sine die to enact an Ordinance to this effect has drawn sharp criticism from legal experts, who believe, any such attempt to amend law retrospectively would now have to undergo the test of "reasonableness" and "fairness" by judiciary.</b>
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<span style='font-size:14pt;line-height:100%'>While terming Wednesday's unprecedented move to adjourn Parliament sine die as "unfortunate", eminent constitutional expert and senior advocate Rajeev Dhawan said, "You do not put Parliament into artificial recess for enacting an Ordinance." By doing so, he suggested, "the Government has placed its post or person higher than the working of Parliamentary democracy." Paralysing Parliament itself for tackling the question of qualification amounts to undermining Parliamentary democracy itself, he opined.</span>
Among the various grounds for disqualification of a Member of either House of Parliament as contained in <b>Article 102 of the Constitution, one of the ground is holding of an "office of profit under the Government of India or the Government of the State"</b>. Parliament, however, can make a law declaring any or as many as they like, offices as not to disqualify its holders.
The Parliament (Prevention of Disqualification) Act, 1959 was enacted to address this issue, as a large number of offices like posts of ministers, Leader of the Opposition and Chairpersons of several commissions or committees were declared as not offensive to the Constitutional prohibition.
Eminent lawyer and <b>constitutional expert Mr Soli J Sorabjee said, "Parliament in its wisdom has the right to amend a law retrospectively. But such decision is subject to judicial review where the court has the power to examine the reasonableness and fairness of the legislative action."</b>
<b>Since the expression "office of profit" is not defined under law, courts from time to time have been pronouncing upon specific cases that came before them.</b> In 1967, a similar case had come up for judicial scrutiny where one Ms Kathuria a Special Government Pleader under the State of Rajasthan was declared elected to the State Assembly.
Her election was challenged on the ground that she held an office of profit. But even before the petition could be heard, the Rajasthan State Legislature passed an Act titled Rajasthan Legislative Assembly Members (Prevention of Disqualification) Act, 1968, which retrospectively removed Ms Kathuria's disqualification.
A five-member Bench of the Supreme Court held that the Constitution itself recognised the power with the Legislature to remove the disqualification and legislature had the power to pass retrospective law.
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Pioneer.com
Abraham Thomas/New Delhi
The Government's hurry in enacting an amendment in the law holding certain offices of profit, as not amounting disqualification is well found.
<b>But adjourning the Parliament sine die to enact an Ordinance to this effect has drawn sharp criticism from legal experts, who believe, any such attempt to amend law retrospectively would now have to undergo the test of "reasonableness" and "fairness" by judiciary.</b>
...............
<span style='font-size:14pt;line-height:100%'>While terming Wednesday's unprecedented move to adjourn Parliament sine die as "unfortunate", eminent constitutional expert and senior advocate Rajeev Dhawan said, "You do not put Parliament into artificial recess for enacting an Ordinance." By doing so, he suggested, "the Government has placed its post or person higher than the working of Parliamentary democracy." Paralysing Parliament itself for tackling the question of qualification amounts to undermining Parliamentary democracy itself, he opined.</span>
Among the various grounds for disqualification of a Member of either House of Parliament as contained in <b>Article 102 of the Constitution, one of the ground is holding of an "office of profit under the Government of India or the Government of the State"</b>. Parliament, however, can make a law declaring any or as many as they like, offices as not to disqualify its holders.
The Parliament (Prevention of Disqualification) Act, 1959 was enacted to address this issue, as a large number of offices like posts of ministers, Leader of the Opposition and Chairpersons of several commissions or committees were declared as not offensive to the Constitutional prohibition.
Eminent lawyer and <b>constitutional expert Mr Soli J Sorabjee said, "Parliament in its wisdom has the right to amend a law retrospectively. But such decision is subject to judicial review where the court has the power to examine the reasonableness and fairness of the legislative action."</b>
<b>Since the expression "office of profit" is not defined under law, courts from time to time have been pronouncing upon specific cases that came before them.</b> In 1967, a similar case had come up for judicial scrutiny where one Ms Kathuria a Special Government Pleader under the State of Rajasthan was declared elected to the State Assembly.
Her election was challenged on the ground that she held an office of profit. But even before the petition could be heard, the Rajasthan State Legislature passed an Act titled Rajasthan Legislative Assembly Members (Prevention of Disqualification) Act, 1968, which retrospectively removed Ms Kathuria's disqualification.
A five-member Bench of the Supreme Court held that the Constitution itself recognised the power with the Legislature to remove the disqualification and legislature had the power to pass retrospective law.
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