Abhishek Manu Singhvi: There is a method in the madness that we have in India. There is a huge method.
That method in the madness does not exist in our neighbouring countries. But we should be proud and not destroy it merely because of the expediency of one particular Bill. These are our systems which have endured the test of time. I can give you several examples.
For example, the Chief Election Commissioner of India wants to have an MoU with the Chief Election Commissioner of Pakistan even for a very salutary and desirable object. He is not a law unto himself. We have several senior ex-bureaucrats in this House today. He has to go and seek permission from somewhere, whether it is the Ministry of External Affairs or some other Ministry, because you can’t do things without an anchor. Incidentally, if you had checked, you would have come to know that the CBI, except Joint Director and above, selects almost everybody and transfers them on its own. Only some of the senior ones require consent. I believe, Sir, with great respect, that it is highly exaggerated that in every case Ministries are interfering with our institutions. Yes, we have had a record over the last 20 years that in some cases, certainly as much in your side and as much in our side, the CBI might have been interfered with. But this is a highly exaggerated notion that Mr. Narayanasamy’s Ministry or the Minister is sitting in the CBI Office every day and monitoring the investigation. Today is an age with media, 24 x 7, entering our bed rooms. Do you think it possible? Do you want to destroy institutions on theoretical tilting and windmills and imaginary apprehensions?
Let us turn, Mr Chairman, Sir, with your permission, to a very important issue of article 253. With great respect, I would like to submit that I would have thought that this issue would not arise.
Perhaps, this issue has been raised only because my friend wants to play Narad Muni. He believes that he must play Narad Muni to the galleries because some of our friends on our side will get provoked by him when he talks of federalism.
Now, I am going to tell you something very interesting. The night before last, I went through the Constituent Assembly debates and I am going to prove in a minute that, perhaps, my friends in the BJP and the Leader of the Opposition are telling us that they are wiser than our Founding Fathers. Our Founding Fathers discussed that the State autonomy was very important. Then they created not one, not two, not three, not four, but six inroads into it, right from article 249 to article 253.
They said that for higher national interest, you have to have provisions where affirmatively Parliament is given power to have an inroad, where Parliament is given power by our Constitution. My friend is telling us that there is an assault on federalism. One of our lawyer colleagues wrote an article two days ago that it was an assault on federalism. When I tell you what happened in the Constituent Assembly debates you will realise that article 253 itself was, as it is, put there.
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Then — I will give the name — a Joint Memorandum was moved saying , at least, make it clear that “We shall only do it if it is obligatory upon international treaty to do it”. Mr B N Rao, the Constitutional Advisor, got up and said, “No. No change in article 253. It will remain as it is. It is important for Indian federation. It is important for national interest”. So, article 253 is a Constitutionally decided national interest provision. How can it be an assault on federalism? The two are contradictory. I will just give you the details in two minutes.
Yes, List-II is inviolate. I will come to the arguments about Entry 41. With great respect to my learned friend — I really admire his legal knowledge — that is a wrong argument. But that apart, List-II is important. Federalism is important. But just consider the articles which start from 249, forget article 253 for a minute...
Let me read article 253 in case you have forgotten that also and it is very interesting. Article 253 says, “Notwithstanding any other clause in this whole Chapter”. Article 253 is supreme. It is above 252 and says, “Notwithstanding anything in the foregoing provisions of this Chapter, Parliament has power to make any law for the whole any part of the territory of India”. And you are applying this to say it is anti-federal and it has no power. Let me remind you, through the hon. Chairman, that this article 253 is very interesting; it is also educative and enlightening, if you care to go to the debates. This is meant less for my friends this side, it is meant more for my friends that side that we are doing no assault on federalism. Let me also clarify...(Interruptions).
Arun Jaitley: Are you justifying the assault?
Abhishek Manu Singhvi: How can there be an assault, Mr Leader of the Opposition, when the Constitution says Parliament shall have power? You are assaulting the Constitution then. (Interruptions). Let me point it out to you. This is not a TV channel. It is a serious stuff here. Now, let me come back to the debates. Now in debates, this article 253 was called 230. At that time, the article was 230. By the way, I must preface my remarks by saying that this issue should not arise today because the Government has bent over backwards and has already amended the law. The law before you today stands amended. It says it shall apply only with the consent of the States.
Arun Jaitley: Since we have the benefit of your constitutional knowledge, does article 253 empower the Government to give such an option to the States?
Abhishek Manu Singhvi: Of course, it does.
Arun Jaitley: Where? Please read it. Your saying, of course, does not matter. Please read it where does it give the option.
Abhishek Manu Singhvi: Kindly permit me to answer it, Sir.
Arun Jaitley: It is an ultra vires option.
Excerpts from the debate on the Lok Pal and Lokayukta Bill 2011 in the Rajya Sabha, 29 December, 2011