EDITORIAL

Office Of Profit: Remove Lacunae

THE disqualification of Jaya Bachchan for holding an “office of profit” has snowballed into a full-fledged controversy. The resignation of Sonia Gandhi both as a member of Lok Sabha and as chairperson of the National Advisory Council (NAC) has brought up on the agenda the urgency to resolve this issue.

What is an office of profit? There is no law on this matter, no definition provided by the Supreme Court or by the executive government. The absence of clarity is precisely the major cause for the current controversy. Article 102 of the Indian Constitution, “Unless otherwise declared by parliament by law, a person is disqualified for being chosen as, and for being, a member of either house of parliament if he holds any `office of profit’ under the government of India or the government of any state.”

Clearly therefore, the parliament has to by law list the offices which do not fall in the category of the `office of profit’, thus, ensuring  that no member is unduly disqualified on this count. These positions are listed under the Parliamentary (Prevention of Disqualification) Act 1959. This Act has been continuously amended to include newer offices by successive governments including the last NDA government. The UPA government, however, in its own wisdom, overlooked this constitutional intricacy. The consequence is there for all to see.

The main point is not that this list should be constantly amended by adding new offices. This may have to be done in the immediate future in order to prevent the potential large scale disqualification of MPs and MLAs across the country. Relying on this manner alone as the solution, in the long term, would constitute the classic knee jerk reaction policy.

The main issue revolves around the definition of an office of profit. MPs and MLAs often hold certain offices in order to provide relief to the people in various areas. The discharge of such responsibilities is concomitant with their duties as elected representatives to serve people’s interests. Viewed from this point of view, the various offices held by many members on a voluntary basis without drawing any remuneration etc cannot be considered as offices of profit.  This however is an interpretation. This is not the law. And, that is the problem.

It is not a matter of general knowledge that there already exists a parliamentary joint committee on the `offices of profit’. Normally, on a reference from the presiding officer(s) of the House(s) this committee examines whether an office is one of profit or not. The Constitution however, explicitly states that the president of India upon receipt of a complaint of this nature will refer the matter to the Election Commission whose decision on the matter will be binding on the president. This is what happened in the Jaya Bachchan case. By forwarding the petitions to the Election Commission the president is strictly abiding by the letter of the Constitution. The spirit of the Constitution however, may suggest that the president use his judgement before forwarding all petitions received by him. However, on upholding the letter of the Constitution, the president cannot be faulted.

The Constitution of India has not prohibited an elected Member from holding an office under the government but only an office of profit, without Parliamentary sanction. Therefore, in each case it is essential to ascertain objectively whether a particular office is an office of profit or not. It should not be assumed that any holder of an office is disqualified from continuing as a Member. It will depend on the facts of each case, as the Supreme Court has repeatedly observed.

The parliamentary committee has in fact on one occasion outlined the basic principle on this question. “The committee feels that the basic principle underlying the imposition of disqualification under Articles 102(1) (a) and 191(1) (a) of the Constitution is that a member of the legislature should not be indebted to government by accepting an `office of profit’ under the government and thus compromise his independence”. In other words, an office of profit does not mean an office that yields monetary profit. Holding an office of profit is like holding an executive post which is likely to create a conflict of interest with the conduct of the legislators. For, in the final analysis, the job of the legislature is to keep a check on the executive and not be subservient to it.

In December 2005 the joint parliamentary committee submitted a report to the parliament identifying three criteria to determine if holding a certain office should disqualify members under the law. These are: a) “whether the holder draws any remuneration, like sitting fee, honorarium, salary etc. i.e. any remuneration other than the `compensatory allowance’; b) whether the body in which an office is held exercises executive, legislative or judicial power or confers powers of disbursement of funds, allotment of lands, issue of licences, etc., or gives powers of appointment, grant of scholarships, etc; c) and whether the body in which an office is held wields influence or power by way of patronage.” A closer look at these criteria and a comprehensive law defining the criteria which shall determine the categorisation of offices of profit needs to be urgently undertaken.

While this process must immediately be initiated, in the interim the parliament must amend its Act of 1959 to include the offices that are today excluded in order to resolve the present crisis. Such a dual strategy must be adopted so that the country can move ahead to address the more basic and urgent issues aimed at improving the livelihood of the people.