The Mahabharata has always appealed to me because it raises a set of questions that can form the basis of a lesson in jurisprudence. I recall my son, whom I had forced into reading an abridged version of the epic, reacting that this was a story of deceit and foul-play. He was hardly in his teens at that time. The story of Karna, the way Drona was overwhelmed and the several instances in the epic cannot but make anyone feel the way my son did.
But then, that is why I think the Mahabharata must be prescribed as a text in jurisprudence. For this will help look at law as not merely a collection of texts and prescriptions but in a larger context. President A.P.J.Abdul Kalam’s decision to refuse assent to the amendments to the Office of Profit Bill can neither be condemned nor lauded.
It is possible that the Presidential action will soon be condemned on grounds that President Kalam has overstretched himself in the same way Giani Zail Singh act (with Rajiv Gandhi when he refused consent to the Post Office Amendment Bill) was condemned by a set of self appointed custodians of democracy. The argument would be that the wish of the legislature, which is directly elected by the people, cannot be made subservient to that of the President, who is only a titular head of the state.
Recall the debate when Indira Gandhi, aided by legal and political luminaries, took it upon herself to make Parliament superior to the judiciary and went on to say that Parliament had the right to amend all aspects of the Constitution. The debate was thankfully settled by the Supreme Court in the Keshavananda Bharti judgement that the last word on amendments to the Constitution will be from the apex court and that Parliament cannot tinker with the basic structure of the Constitution.
Now, coming back to President Kalam’s action on the Office of Profit Bill; the President has the powers to ask Parliament to reconsider its provisions; but then, in the event it is endorsed by Parliament and passed once again without any changes, the President cannot refuse assent. It is another matter that the Act can be challenged in the court. In that sense, the President’s action in this instance is only one that involves moral standards rather than legal. And the legal limitations are there only in order to ensure that the titular head of the state is not allowed to trample upon the popular will. In other words, to ensure the superiority of Parliament on legislative matters and this should lead anyone to conclude that Kalam had over reached himself.
The other way too look at this episode would be to celebrate President Kalam’s action and rest assured that the people of this country and its democratic edifice are safe as long as Kalam is there at the Rashtrapathi Bhawan. Recall that the legendary Ramnath Goenka had posed such faith and confidence on Zail Singh and hoped that he would save democracy in India by sacking Rajiv Gandhi.
Well. I would want to see the latest episode involving Kalam and his missive about the Office of Profit Amendment Bill in the same way as Mahabharata treats the various personalities and the episodes. In other words, rather than concluding, like my son did, that the Pandavas won the war just by deceit and foul-play and hence condemn the Pandavas for that, I would say that the Pandavas had to win the war and it is rather unfortunate that they could win only through deceit and foul-play.
The Parliament (Prevention of Disqualification) Amendment Bill 2006, brought in and passed by Parliament had to be prevented from becoming the law. This law was immoral because its only intention was to ensure that Sonia Gandhi could wield as many offices of profit as she wanted and remain a member of the Lok Sabha and yet don the mantle of a renunciate. And in the process, it also ensured that Somnath Chatterjee was saved from being disqualified as MP. It also enlisted some offices that the BJP MPs held as exempted from the disqualification clause of the Act. In other words, the Bill and its objectives were immoral.
The Congress-Left combination and the rhetoric of secularism rendered ineffective all legitimate means to defeat this amoral legislation. And left it to President Kalam to intervene. Like in the Mahabharata, the end should justify the means. And even if means that such interventions by the President can weaken the democratic edifice in the long run, it makes sense to celebrate Kalam’s act this time.