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A Constitutional Travesty

When dysfunctional laws like the Prevention of Corruption Act and the Office of Profit law congregate to create a slothful…

A Constitutional Travesty

Corruption

When dysfunctional laws like the Prevention of Corruption Act and the Office of Profit law congregate to create a slothful and dysfunctional State, the hope of developmental politics evaporates. And when these dysfunctional laws are misused by those who came to power by propagandising high morality and clean politics, it vilifies the confidence of people.

This is precisely what ensued when the Election Commission recommended to the President the disqualification of 20 AAP MLAs for holding an office of profit as parliamentary secretaries.

The post of a parliamentary secretary which is equal in rank to that of a Cabinet Minister is a political device used by ruling parties both at the Centre and states to mollify its members. Arvind Kejriwal too used this political device to gratify his 21 MLAs in spite of his pledge to initiate clean politics.

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The ruckus over these appointments started when the then President Pranab Mukherjee declined to sign the Delhi Member of Legislative Assembly (Removal of Disqualification) (Amendment) Bill, 2015 passed by the Delhi Assembly to exempt the post of parliamentary secretary from the purview of the office of profit with retrospective effect.

The President referred the matter to the Election Commission as the Constitution vests power in him to disqualify members of a legislature holding office of profit on the recommendation of the Election Commission of India. Once Election Commission gives its recommendation, the President is bound to admit and therefore disqualification is inevitable.

Resignation from membership of the House and of the office stated to be one of profit or the fact that the High Court has already annulled these appointments cannot absolve a member of the offence of acceptance and holding of an office of profit against the specific constitutional directive. It would be nothing but an escape route.

A Self-Serving Law

The idea behind the office of profit, a concept that evolved in England, was to preserve the independence of the legislature by keeping its members away from any governmental temptation that could come in the way of independent discharge of their duties and to ensure their neutrality and impartiality in the conduct of public affairs.

The Constitution provides that a person shall be 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 other than an office declared by Parliament by law not to disqualify its holder. Governments had in past exempted many positions from the purview of this Article for their political convenience and many times with retrospective effect.

Neither the Constitution nor the Representation of the People Act, 1951 defined the expression “office of profit” and hence it leaves space for courts to explain the meaning and implication of this concept. India had the Parliament (Prevention of Disqualification) Act, 1959 exempting certain posts from being recorded as offices of profit. A list of non-profit offices has been detailed in Part II of the Schedule to the Act. The membership of bodies listed in Part I of the same Schedule entails no disqualification on the ground of holding an office.

No Decisive Test

Governments across the country habitually and continuously create new bodies or offices and therefore the question whether the membership of these bodies or offices would result in disqualification for membership has been a matter demanding persistent appraisal. Several Joint Committees have been constituted on office of profit issue which have largely applied twin tests in determining whether a particular membership of an office or body ought to be exempted from disqualification; one, the emoluments and allowances attached to the members; and two, the nature and function of the body.

The interpretation offered by the Supreme Court has decrypted two essential ingredients: First; there should be an office and second; the office should carry some profit [Kanta Kathuria v. Manak Chand, 1970 SC 694 and Ibomcha v. Chandranani AIR 1977 SC 682]. “The office must have an existence independent from the persons who filled it, which went on and was filled in succession by successive holders.” The word ‘profit’ has always been treated as equivalent to or a substitute for the term ‘pecuniary gain’.

The principle that an “office” should have “receivables” attached to it for it to qualify as an Office of profit, has been upheld in other cases as well [See U. C. Raman v. P. T. A. Rahim and Ors]. Several other factors in the opinion of the court may be relevant in order to determine this question viz: who is appointing authority; who is the authority vested with the power to terminate; the authority that determines the remuneration; the source from which the remuneration is paid and who is the authority vested with the power to control the manner in which the duties of the office are discharged.

Nevertheless, it is established that the office of Parliamentary Secretary is an independent office and involves some pecuniary benefit which may include official space, vehicle, office-staff, residential accommodation, electronic devices, travelling allowance etc.

However, power eventually rests with the government in power to exempt any office with any pecuniary benefit attached to it. In the past the Union government and state governments have retroactively enacted self-serving legislation that protected their members from disqualification but Arvind Kejriwal failed in his immature but extremely ambitious endeavour because of his hostile relationship with the Union government.

Ex Facie Arbitrary Law

The office of profit law is ex facie arbitrary and profoundly an infringement of Article 14 of the Constitution because it licenses the selection and hostile treatment although it is unquestionable that equal protection of the laws cannot mean that all laws must be quite general in their character and application.

A legislature must have the power of making special laws to attain specific objects and must, for that purpose, possess power of distinguishing and classifying the persons/things to be brought under the operation of such laws, provided the basis of such classification has a rationale nexus with the object the legislature has in view.

But office of profit law failed to provide any basis for classification of the offices which may be exempted. It left it to the unrestrained discretion of the Governments to choose or to create any office which it liked to be exempted by the law.

Conclusion

A law that entirely depends on whims and fancies of governments, a law that cannot prohibit a legislator like Mr. Navjot Sidhu from a private engagement, a law that allows an MP/MLA/Minister to become a Director of a Public Limited Company in lieu of an attractive salary, and a law that closes its eyes to conduct of lawyers who are MPs/MLAs but unceasingly appear before the courts for their clients and earn hefty amounts, does not qualify as a judicious law.

Then it would be more honest to abolish the office of profit law altogether, rather than amend it into such anaemic shape that it becomes a non-law.

The writer is Associate Professor of Law, NLU Odisha & Deputy Registrar, Supreme Court of India.

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