New Delhi, 23 September 2003

 Bypassing Parliament

LID OFF MURKY MANOEUVRES

By Poonam I Kaushish

The BJP-led NDA Government at the Centre fell flat on its face Tuesday last. It has none to blame but itself for the sharp rap it earned from the Supreme Court. For bypassing Parliament by unilaterally deciding to disinvest in two blue chip oil companies, ignoring legal requirements. Creating yet another sticky mess.

As I watch the powers-that-be squirm over their monumental Constitutional blunder, my thoughts go back to my weekly Political Diary of 7 January entitled: Summon Attorney General, Can Parliament Be Bypassed? I had then stated: “Can the HPCL and BPCL be disinvested by an executive order or does it require the clearance of Parliament.  It must seek such clarifications as are deemed necessary.  Finally, it must ensure that India’s sovereign Parliament is not bypassed by the Executive.  The basic structure of our Constitution is at stake.”

The column was dismissed as inconsequential and the ranting of a wet blanket.  Today the tables are turned. I sit back and preen: I told you so.  Don’t misread, the issue is not disinvestment of public sector understandings, nor is it of selling the family silver to buy groceries in the garb of economic reforms.  But a more serious and pertinent point which has put a big question mark on our fledgling democracy. Namely the Government’s brazen and blatant attempt to derail Parliament.  Forgetting that the temple of democracy is the bedrock of our nation State. It represents the people and is ultimately answerable as the sovereign watchdog of the national interest. Constitutionally, the Executive is responsible to Parliament. Nothing less, nothing more.

For reasons best known to it, the NDA Government chose to ignore this basic premise. Instead of being transparent in its disinvestment policy it went out of its way to obfuscate the issue. Perhaps it believed in its infallibility as it set out on a suicidal course by turning the Constitution on its head. Reminding one of what Hitler, the enfant terrible of World War II, reduced Germany to. History tells us that the Constitution of the then Weimar Republic was hailed as the most democratic in the world. However, showing little respect for the written word Hitler made it worthless. He misinterpreted and subverted the Statute to become a dictator. The moot point is: Are our leaders set on a similar course? Are they out to destroy Parliament?

Its actions smack of it. The Supreme Court is certainly not pleased. A two-member Bench comprising Justices S. Rajendra Babu and G.P. Mathur put on hold disinvestment of Hindustan Petroleum Corporation Ltd (HPCL) and Bharat Petroleum Corporation Ltd (BPCL), asking the Government to obtain Parliamentary approval for the sale of the Government’s stake in the two companies. Citing Section 7 of the Esso (Acquisition of Undertaking in India) Act 1974, the Supreme Court told the Government that there was no way it could sell BPCL and HPCL without “appropriately amending” this provision. 

Section 7 states that the Centre can only transfer acquired oil companies to Government companies meaning in which the Government has at least a 51 per cent stake.  It was under this provision that the Centre transferred the assets of the multinational oil companies (Caltex, Esso and Burmah Shell) to HPCL and BPCL, formed then under the Companies Act, in 1976.  The Court further clarified that its verdict was not a reflection on the disinvestment policy, but was limited to the Centre’s powers to disinvest without repealing or amending the laws concerned. Plainly put, the Centre had transgressed on Parliament’s right to legislate   

Predictably, the Government is busy covering its tracks even as its spin doctors go about clouding the issue. Disinvestment Minister Arun Shourie admitted that the judgment had made the entire process of disinvestment “infinitely more complex”. Questioning the ruling of the Bench, Shourie asserted that the ruling for prior Parliamentary approval would reopen the disinvestment process in Government companies since 1991. Interestingly, the Minister cited the case of Maruti Udyog’s privatisation which too was formed by an Act of Parliament. Was he suggesting that the Court should have done the same vis-à-vis HPCL and BPCL. Do two wrongs make a right? Clearly the Minister’s statement is misleading. Luckily for the Minister, the Maruti issue was not raised in the Court unlike in the case of the oil majors where the Oil Sector Officers Association and the Centre for Public Interest Litigation petitioned the Court.

Senior NDA leaders hold the Attorney General, Soli Sorabjee, responsible for the egg on its face. Recall the Government had gone ahead with the sale after Sorabjee had advised that an executive decision would suffice and there was no need to get Parliament’s approval. But the man in the eye of the storm is brazen in his response to the Apex Court’s decision. Said he: “Before giving my opinion I had examined the provisions of the Act…..had gone through other acts and concluded there was no need for prior approval….the Supreme Court has taken the view focusing on the preamble of the Act.” Arguably, since the purpose was in the preamble and not in the Act, the Act itself made it clear that the assets of these acquired companies will vest in the Central Government or “Government Company”.

Sorabjee seems to forget that as the “constitutional conscience of the nation” he is expected to take into account not just legal issues, but also the larger issues of the Executive’s accountability to Parliament. An Attorney General’s opinion can never override democracy. Not only that. As the nation’s first law officer, not only does he give his opinion on file but enjoys the same rights as a Minister to speak in Parliament, even make a suo moto statement. Article 88 is explicit. Sorabjee should have exercised his right to address at least the Lok Sabha to clarify his advice or interpretation on this crucial matter. Clearly, it was upto him to leave no scope for any doubt or wrong interpretation or any false claim by the Government.

Compounding his mistake, Sorabjee added: “No human being can claim infallibility, neither a lawyer nor a judge, when it comes to the statutes”. True nobody is infallible, precisely the reason why he should have taken the nation into confidence. The least one expected was some humility. Instead, crass and frivolous incidentals are touted as justification. The judges spent only an hour on the case of far-reaching importance. What has the quantum of time spent to do with the quality of judgment?  

Sadly, the Opposition, which is now going to town by using the issue as electoral fodder, is equally to blame. Why did it not demand that the Attorney General be summoned before Parliament? Today to assert that the Government exercised powers that it did not possess is a classical example of locking the stable door after the horse has bolted. It has failed in its duty to keep the Government on its toes, leaving the field wide open for the Government to ride rough shod over healthy conventions and do as it pleases. Good or bad does not seem to matter. Distressingly, our Right Honourables seem to have little knowledge or interest in the functioning of Parliament and even less about the Constitution. Thus Parliament has been largely reduced to being sovereign only in name.

What next? It is high time the Government came transparently clean on the disinvestment of the oil giants. It is simply not enough for the Government to secure the opinion of the AG merely on a file. It cannot do what it likes without engaging Parliament. The Opposition must demand and insist that the AG comes before Parliament and not only makes a clean breast of it all but is also available to the MPs for clarifications. Just as the judgment has taken the lid off the murky under-dealings in the corridors of power. It has opened the eyes of the people and exposed the way they treat Parliament, aptly described by Nehru as the high temple of democracy. Contempt not credibility has become its swan song. How long will we allow our leaders to play ducks and drakes with Parliament and, indeed, with democracy itself! ------INFA

 (Copyright, India News & Feature Alliance)