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Turning outrage into applause

The extraordinary series of events that culminated in the resignation of Congress president Sonia Gandhi from both Lok Sabha membership and the chairpersonship of the National Advisory Council (NAC) marks the second time she has turned apprehension or outrage into widespread applause, the first being her declining the office of Prime Minister in May 2004. Whether it was a purely self-denying move or shrewdly calculated political strategy, it has served to remove the sting from the opposition charge that the United Progressive Alliance Government was going to extraordinary lengths to save her from disqualification on the ground that she was holding an office of profit as Chairperson of the NAC. Up to the point of her resignation, the Government's handling of the office of profit issue smacked of clumsiness, even impropriety. First, it got Parliament adjourned abruptly, obviously to clear the way for an ordinance. Secondly, while it did not bestir itself when the Samajwadi Party member, Jaya Bachchan, was disqualified on the ground that she was holding an office of profit as chairperson of the Uttar Pradesh State Film Development Council, it seemed to have panicked at the prospect of many other members cutting across parties holding similar offices meeting the same fate. The handling of the issue itself was marked not by open discussion but by secrecy that was strange in an administration that has held out the Right to Information Act as a demonstration of its commitment to transparency and good governance. Amidst the appearance of a great intrigue, the situation turned so murky that it was natural that charges flew around that the Government was desperate to bring in an ordinance to save Ms. Gandhi from imminent disqualification.

Now that the lightning rod issue of Ms. Gandhi's disqualification has been resolved by her own action, it is time for a serious and non-partisan look at the issue of disqualification itself. The Constitution in Article 102 disqualifies from membership of Parliament any person who holds an office of profit under the Central Government or any of the State governments, other than an office declared by Parliament through law not to disqualify its holder. The rationale behind such disqualification is that legislators cannot exercise their control over the political executive independently if they hold office under the executive and are beholden to it. Although the term `office of profit' is not defined in the Constitution, the Supreme Court has laid down three broad principles. First, it should be an office under the Central or a State government performing duties for the government, with the government exercising control over the appointment, removal, and functioning — the overall test being whether it would create a conflict between the duty and interest of the legislator. Secondly, it must result in some profit over and above meeting the expenses involved in discharging the duties. Thirdly, Parliament has the power to exempt any specific office from the disqualification and this, the Supreme Court has held, can be done retrospectively as well. The Parliament (Prevention of Disqualification) Act, 1959 exempts many Central and State government offices from disqualification, but the list of exemptions has hardly kept pace with the creation of offices to which many members of Parliament have been appointed routinely without any thought of the consequences. If a substantial number of members across the political divide are in danger of being disqualified by a provision to which few paid serious attention earlier, Parliament can legitimately use its power under the Constitution to enlarge the exempted list and save the holders of other offices too from disqualification. The process of determination by the Election Commission on a case by case basis takes typically three to four months. This represents a window for discussion and debate in Parliament. Ordinances are extraordinary measures to be used to deal with matters of urgency when Parliament is not in session. To get Parliament adjourned to enable the promulgation of an ordinance would be a gross abuse of the constitutional provision. The proper course would be to re-convene Parliament to update the law and enlarge the list of offices exempt from disqualification — without at the same time making a mockery of the constitutional provision designed to ensure the independent control of the executive by the legislature.

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