Opinion - Leader Page Articles   

Office of profit: the wages of neglect

N. Ravi

Ignorance of the law is no excuse, as countless petty litigants are reminded every day in courts across the country, and it is inexplicable that so many members of Parliament should have allowed themselves to be ambushed by a fundamental provision of the Constitution.

THE PRACTICE of appointing legislators to executive offices carrying all or some of the appurtenances and perquisites of ministerial posts has over the decades come to be accepted as a way of sharing the spoils of power more widely. Little thought was given to the consequences until a sleeper clause in the Constitution exploded with full force, unseating Jaya Bachchan and threatening to disqualify dozens of members of Parliament. Article 102:1 (a) disqualifies from Parliament any member who holds an office of profit under the Centre or any of the State governments, unless such an office is specifically exempted from disqualification by a law. Parliament had passed the Parliament (Prevention of Disqualification) Act, 1975, exempting several offices from disqualification and had updated the list only sporadically up to 2000. Meanwhile, the appointment of legislators to various State and national bodies continued apace, oblivious to the danger that they would run afoul of Article 101:1(a) and the corresponding Article 191:1(a) providing for the disqualification of State legislators. It is only now that the wages of this neglect are becoming apparent.

The Election Commission had, as of May 8, received through the President 31 petitions seeking the disqualification of some 43 members of Parliament under Article 102:1(a). Of these, it had disposed of two — the one relating to Congress president Sonia Gandhi being the Chairperson of the National Advisory Council as she resigned from the Lok Sabha and the other on the BJP leader Vijay Kumar Malhotra holding office as President of the All India Council for Sports on the ground it did not relate to a post-election disqualification. Of the rest, even if some are found not to be holding offices of profit, it is quite likely that many may be disqualified, setting off a mini-general election. The disqualification clause would seem to pose an even bigger problem in the States, particularly with governments resting on precarious majorities where several legislators left out of the Ministries have had to be rewarded with offices in government bodies. The Election Commission has received petitions seeking the disqualification of some 243 legislators in 18 States.

With the fate of so many members across the political spectrum hanging in the balance, Parliament was faced with a classic political dilemma. Should they follow their collective interest and pass a law exempting the offices held by all the sitting members from disqualification? If MPs who till the other day were engaged in a fierce combat over the issues concerning the people were to show a rare unanimity — seen typically when their pay and allowances are involved — in the pursuit of the interest of a large section of their colleagues, it would only strengthen public scepticism and reinforce their image as a self-serving political class. The Congress party's panic reaction in getting parliament adjourned to pave the way for an ordinance exempting its president Ms. Sonia Gandhi and other members from disqualification brought in a new twist that was seized upon by the BJP-led opposition whose stakes in the disqualification issue were far lower than of the Congress and the Left. With Ms. Gandhi's resignation, the ordinance route was abandoned and Parliament has been reconvened, but the issue of how far Parliament could be seen as going in furtherance of the personal interest of some of its members still remains. Whether the Chairperson of the National Advisory Council should be exempted from disqualification also continues to be a live issue, as the NDA's opposition to the Bill passed by the Lok Sabha shows.

The second dilemma is constitutional and legal. The constitutions of almost all democracies bar legislators from holding executive offices other than as Ministers in a parliamentary system. The American Constitution has an "ineligibility clause" which imposes an absolute bar: "no person holding any office under the United States shall be a member of either House during his continuance in office." In the United Kingdom, The House of Commons (Disqualification) Act of 1975 lists a large number of public offices, judicial and executive, whose holders would be disqualified from membership. Article 101:1(a) of the Indian Constitution has adopted a third course, generally barring dual office holding, but empowering Parliament to exempt certain offices from disqualification.

The rationale behind such a bar lies in the broad separation of legislative and executive powers and in preventing legislators from being corrupted by appointments to offices by the executive. There is the danger of such blandishments luring them away from their commitment to furthering the interests of the people whom they represent to doing the bidding of the government. As the Supreme Court put it, "A person who is elected to a legislature should be free to carry on his duties fearlessly without being subjected to any kind of governmental pressure. If such a person is holding an office which brings him remuneration and the government has a voice in his continuance in that office, there is every likelihood of such a person succumbing to the wishes of the government." On another occasion, it went on to say that the bar on legislators holding public offices was "intended to eliminate the possibility of a conflict between duty and interest and to maintain the purity of the legislature."

The term "office of profit" is not defined in the Constitution but Supreme Court decisions over the years have laid down tests to determine whether a post held by a legislator would come within its ambit. First, it must be an office, that is, a continuing, permanent position rather than a temporary or a one-off engagement. Second, such an office must be under the Centre or the government of any State. The government must have the power to appoint and remove the person from office, with remuneration being paid out of public funds, and he must be performing some function on behalf of the government. It may not be necessary for all these criteria to coexist in a particular case, and the court will go by the overall nature of the relationship between the office and the government. Again, even an office in a body under the government to which the government is empowered to appoint and remove persons — such as an auditor in a government company — may be covered.

Third, the office must be associated with some "profit" to the holder over and above the expenses involved in the discharge of duties. Such profit may include "honoraria", housing, car and other facilities. In deciding whether a post is an office of profit, the court will look at the entitlement of the office rather than what the holder actually draws. Thus grand gestures of renunciation that some well known public figures are prone to make on assuming office, such as giving up any honoraria or other payments due, may not help, as Ms. Jaya Bachchan learnt to her cost. The Parliament (Prevention of Disqualification) Act provides a general exemption for appointments to statutory and non-statutory bodies provided the office holder does not receive anything more than a "compensatory allowance", that is anything more than the level of allowances that an MP is entitled to. In the case of Ms. Bachchan, the office of Chairperson of the U.P. Film Development Council was entitled to an honorarium of Rs.5,000 a month and to allowances for travelling that were higher than what MPs are entitled to, though she had personally drawn no money at all.

Ignorance of the law is no excuse, as countless petty litigants are reminded every day in courts across the country, and it is inexplicable that so many members of Parliament should have allowed themselves to be ambushed by a fundamental provision of the Constitution. Yet, given the circumstances, Parliament could within reason use its power under the Constitution to exempt the offices being held by sitting MPs from disqualification. This power, in the view of the Supreme Court, can be used with retrospective effect as well, to save the membership of those against whom disqualification petitions are pending before the Election Commission. The latest bill by seeking merely to list the specific offices held by the sitting members and exempt them from disqualification without looking at the broad categories that might be granted exemption on the basis of some rationale, would seem to offend democratic sensibilities as coming to the aid of just those members in trouble, rather than advancing any general principle. It would have been more reasonable to exempt those offices with a condition that the members resign from them within a reasonable time limit, say three or six months. In fact, the Parliament (Prevention of Disqualification) Act, 1959, adopted a similar course, granting exemption to offices it did not exempt, but which the earlier acts it replaced had exempted, provided the members resigned the offices within six months.

The Government would have done well to heed a faint warning in one of the Supreme Court judgments: "Classification of such offices for the purpose of removing the disqualification has thus been left primarily to legislative discretion. It follows that so long as this exemption power is exercised reasonably and with due restraint and in a manner which does not drain out Article 191(a) of its real content or disregard any constitutional guarantee or mandate, the court will not interfere." Whether or not this was just a passing observation may be debatable, but it may provide enough of a peg to hang a constitutional challenge on.

Printer friendly page  
Send this article to Friends by E-Mail

Stories in this Section

Iron man at the helm
Issues of broadcast regulation
Office of profit: the wages of neglect
Made in China — Indian doctors
Corrections and clarifications
Where is the outcry at the Palestinians' treatment?
League table reveals big carbon polluters
Morales, the poor, and oil firms
Quota issue
Explore alternatives
Laudable

Copyright © 2006, The Hindu. Republication or redissemination of the contents of this screen are expressly prohibited without the written consent of The Hindu