The `office of profit' controversy
K. V. PRASAD
LAW AND PRACTICE RELATING TO OFFICE OF PROFIT: P.D.T. Achary; Bharat Law House, T-1/95, Mangolpuri Industrial Area, Phase I, New Delhi-110008. Rs. 695.
Once in a while the Indian politics suddenly gets embroiled in an issue for which none of the stakeholders seems to be fully prepared. The "office of profit" controversy is the latest instance. When the dispute erupted, in the wake of the disqualification of the Samajwadi Party Rajya Sabha member, Jaya Bachchan, no one seemed clear as to what the "office of profit" fuss was really all about.
With unusual prescience and speed, P.D.T. Achary, the incumbent secretary-general of the Lok Sabha, has sought to fill this knowledge gap, and has produced even if somewhat hastily a useful source book on the subject.
Having been associated with the Lok Sabha Secretariat for over three decades, Achary has an insider's understanding of procedures, processes, and practices in the "Office of Profit" business. Divided into four chapters, the book essentially makes an orderly presentation of the plethora of cases examined by election tribunals, and various courts including the Supreme Court, as also the opinion of the Election Commission on this question.
The author has included, as annexure, the Parliament (Prevention of Disqualification) Act, 1959 and corresponding State Acts, relevant extracts from the Constitution of India, The Representation of People Act, 1951, and the House of Commons Disqualification Act, 1975.
He gives interesting details as to how the practice came about in British Parliament. He narrates how the House of Commons (Disqualification) Act, 1957 consolidated the law on "office of profit", which necessitated repeal or partial repeal of 118 Acts; the schedules to the Act specify the offices that disqualify a holder for the House membership and those which do not. This Act helped to clarify the law. It needed to be further amended in 1975.
This Act does not exempt all the holders of ministerial offices from disqualification; instead, it restricts the number to 95 persons. If at any time the number of members of the House of Commons who are holders of ministerial offices exceeds this limit, only those who were members of the House and holders of ministerial offices before the limit was crossed could sit and vote, and not the others.
An imported one
In India, the book notes the concept of "office of profit" disqualifying the holder was imported from Britain and it made its appearance for the first time in the Act of 1909, which embodied the Morley-Minto Reforms proposals. The basic idea was and remains that the legislators should not be vulnerable to temptations an executive can offer. The framers of the Constitution thoughtfully incorporated Article 102 (1) and 191 (1), prescribing the restrictions at the Central and State levels.
However, what is indeed baffling and the author makes no effort to enlighten the reader is why the political class has all these years remained unconcerned with the uncertainties inherent in these two constitutional provisions, more so even after the Supreme Court had in 2001 unseated the Jharkhand Mukti Morcha chief, Shibu Soren on a petition on the ground that at the time of his election to the Rajya Sabha in 1998 he was holding an office of profit.
Achary has produced a clinical book, giving only technical details, and therefore fails to help the reader understand the larger context that has seen the breakdown of the rules of co-existence among the political parties and leaders.
The closest the author has come to revealing his mind is his mild disapproval of the clause giving retrospective effect to the recently amended provision: "It is interesting to note in this context that many of the bodies which have been so exempted from disqualification through above amendment, did not exist in 1959."
The controversy is far from over. The President has sent back the Parliament (Prevention of Disqualification) Amendment Bill 2006, passed by Parliament in May this year. But the matter may ultimately have to be settled by the Supreme Court. The author has very usefully reproduced the Report of the Parliamentary Committee on Offices of Profit and the Act of 1959.
This report itself refers endorsingly to the Bhagavan Das vs State of Haryana case where the Supreme Court has clearly reserved for itself the right to intervene should the legislature resort to unreasonable exercise of power conferred on it under Articles 102 and 191. The Court had noted that "so long as this exemptive power is exercised reasonably and with due restraint and in a manner which does not drain out Article 191(1)(a) of its real content or disregard any constitutional guarantee or mandate, the Court will not interfere."
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