New Delhi, 7 January 2003
Summon Attorney General
CAN PARLIAMENT BE BYPASSED
By Poonam I. Kaushish
New Year. New Hope. Colourful banners streaked the labyrinth
called the Government of India.
Specially after the much-hyped Right to Information Bill became a
reality. If one looked forward to transparency.
Sprinkled with some honesty, no matter how minute, in the normally
obfuscate administration, it was best to forget it. Tall promises and even taller claims,
notwithstanding. The GOI continues to be
as dense as the heavy fog which has embraced northern India in a bear hug, which delayed the PM’s
return from Goa by three hours. Indeed, it must have been a wise man who
stated that a leopard never changes its spots!
Just see how the powers that-be poured cold water on the janta’s
expectations, businessmen’s glee
and journalists’ voyeuristic delight.
Accosted with the demand to make public its “transparent (sic)
disinvestments policy,” specially in the Petroleum sector, the GOI went
scurrying for cover.
The eagerly-awaited hiving off of oil majors, Hindustan
Petroleum Corporation Ltd (HPCL) and Bharat Petroleum Ltd. (BPL) was once again
put on the back-burner. The reason? “We are awaiting the Attorney General’s
opinion” said Disinvestments Minister Arun Shourie. On two scores. Could the two profitable oil giants be sold
by an executive decision or would their sale require to be first cleared by
Parliament, which had brought them into existence by Acts of Parliament. Remember, both Esso
and Caltex first and Burmah Shell subsequently were nationalized in 1974 and
1976 by the late Prime Minister Indira Gandhi.
To be re-christened by Parliament as BPL and HPCL.
However, what was left unsaid was more important than what
Shourie cared to state. Would the
Government make public in full the opinion of the country’s first law officer
on a crucial matter involving Parliament and the Executive? Certainly not. Making available only as much of information
as would fit into its scheme of things. Conveniently brushing under the carpet
the fact that the Attorney General, who is an independent statutory authority,
is expected in every sense of the
Constitutional term to express
himself forthrightly without fear or favour.
Not only does he give his opinion to the Government on
file. But he also has the right to address and thereby make himself available to the MPs to
clarify his advice or interpretation of the Constitution in regard to a
particular matter. The important thing
to note is that by coming to Parliament, he leaves no scope for any doubt or
wrong interpretation or for any false claim by the Government. After all,
Parliament represents the people and is ultimately answerable as the sovereign
watchdog of the national interest.
Sadly, in this raging controversy this crucial aspect of the
Attorney Generals’ role and powers has not got the attention it deserves from
our Right Honourables. Who, today, seem
to have little knowledge or interest about the functioning of the sovereign
Parliament and even less about the Constitution. Specially the Opposition which is not as
vigilant, as it ought to be, leaving the field wide open for the Government to
ride rough shod over healthy conventions and do as it pleases. Good or bad for the country, does not seem to
matter. Distressingly
Parliament today has been largely reduced to being sovereign only in name.
For starters, are our Right Honourables, including those who
adorn the front benches, aware that Article 88 of the Constitution confers on
the Attorney General the same rights as a Minister to speak in Parliament. Article 88 states: “Every Minister and the Attorney-General, of
India shall have the right to speak in, and otherwise to take part in the
proceedings of either House, any joint sitting of the Houses, and any committee
of Parliament of which he may be named a member, but shall not by virtue of
this Article be entitled to vote.”
In other words, the AG’s right to speak confers on him the
suo moto right to address Parliament
and give his opinion directly (and transparently) to members. Our Constitution
makers obviously took a leaf from the Westminster
model. In the UK, the Attorney General is the
Chief Law Officer of the Crown and the Chief Legal Adviser to the Houses of
Parliament. Usually he is a member of
Parliament and invariably a member of the Cabinet.
However, the fathers of India’s Constitution chose to
depart from the English model in divorcing the office of the AG from the
Government but retained the presence of the AG
in Parliament to give it his independent opinion and advice in
person. It was felt that by making the
AG’s office independent he would be enabled to render his honest advice to
Parliament, uninfluenced by political considerations. Also a non-political AG could advise not only
the Government but various other departments without coming into conflict with
either.
Significantly, it was also felt that the absence of the AG
from Parliament, would be to the disadvantage of MPs and indeed, of the
country. It would bar the Attorney-General
from placing his candid opinion or point of view before either House when some
matter under his charge was before the House and through it the country.
So far so good.
Surprisingly, however, no AG has till date in free India exercised
his suo moto right to speak. Perhaps
other considerations have out-weighed his Constitutional obligations. In practice, successive
AG’s have gone to Parliament only at the request of the Government on a motion
passed by the House. Or in response
to a request by the Speaker if he wishes to hear him on any matter before the
House, to give his opinion on the Constitutionality of a Bill or to give a
legal interpretation. However, the Speaker does not seek the advice of the AG
with regard to the vires of a Bill; it has been left to the Government, to
bring in the AG whenever its wants to.
According to Kaul and Shakdher, members may give notice of
motion asking the Attorney-General to be present in the House in connection
with a certain Bill or business
before the House. Such notices are duly
admitted and it is for the House to take a decision thereon. Where the opinion of the AG has been
circulated to the members in advance of his taking part in the proceedings,
members may give advance notice of questions which they wish to ask of him and
the same may be forwarded to the AG and the concerned Minister. When taking part in the proceedings of the
House, the AG cannot be cross-examined
on the views expressed by him. However, members may be permitted to ask a
few questions to seek clarification on some points. No discussion
is permissible on the statement made
by the AG in the House.
On behalf of the Speaker, references have also been made to
the AG with a view to seeking his advice on procedural matters or constitutional
provisions. Such references are made
direct and the AG gives his opinion direct.
The Speaker is not bound to follow that opinion but he takes it into
consideration before arriving at his decision.
The AG has come to the Lok Sabha to give his opinion on as
many as ten occasions – four times each in the 1950s and the 60s and once each
in the 80s and 90s. Among the famous
cases for which he was called in to give his advice were the Mudgal and Bofors
cases.
In 1957, the AG was directed by the Speaker to open the
proceedings in the Mudgal Case (Committee on the Conduct of a Member 1951) and
be present in the course of inquiry. In 1988 the AG addressed
the Joint Committee to probe the Bofors Contract and clarified important legal
issues, involved in the enquiry
twice. On 5 May 1988 when the Minister
of Defence, during his reply to the discussion
on the JPC Report on the Bofors contract, referred to the opinion of the AG,
some members rose on points of order, to demand that the AG be summoned to come
to the House to clarify the position.
The Speaker thereupon ruled that members could give notice
of a motion asking the AG to be present in the House in connection with a Bill
or other business before the House
and if such motion was admitted the House could take a decision thereon. Notices received subsequently were disallowed
as discussion on the JPC Report had
already concluded. The Bofors controversy continues to date.
What now? It is high
time the Government came transparently clean on the disinvestments of the oil
giants. It is just not enough for the
Government to secure the opinion of the AG on a file. The Opposition must,
therefore, demand and insist that the AG comes before the Lok Sabha and expresses himself on the controversial issue posed by
Parliament: Can the HPCL and BPL be disinvested by an executive order or
does it require the clearance of Parliament. It must then 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. -- INFA
(Copyright, India News
& Feature Alliance)
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