HT Analysis| Office of Profit: A law with limited value?

  • Vinod Sharma, Hindustan Times, New Delhi
  • Updated: Jun 14, 2016 19:02 IST
Delhi assembly speaker Ram Nivas Goyal with chief minister Arvind Kejriwal and deputy chief minister Manish Sisodia arrive at the Delhi assembly. (HT File Photo)

The ‘office of profit’ law is a bit of a half-wit provision that needs updating. Read it together with the Tenth Schedule of the Constitution, popularly called the anti-defection law of 1985, and you’d know.

If the former seeks to insulate an elected member from the executive’s influence, the latter makes him a veritable vassal of the government if the party to which he’s aligned happens to be in power.

Nothing illustrates the contradiction more than the foremost provision of the 10th schedule rooted in the Constitution (52nd Amendment) Act. It says: “An elected member of Parliament or a State Legislature, who has been elected as a candidate set up by a political party……. would be disqualified on the ground of defection if he…votes or abstains from voting in the House contrary to any direction of such party.”

Now where does that leave the spirit of the prevention of disqualification act--applicable to parliament and state assemblies and predicated on the separation of powers in the constitutional scheme of the legislature, the executive and the judiciary? Also coming a cropper in the light of the law against defections is the logic that a legislator, if obligated by an office of profit, would be prone to the executive’s influence in discharge of his duties.

Times have changed since the ‘profit concept’ inspired by the British Morley-Minto reforms proposals of 1909 found a place in our constitution. Temptations on offer by the executive to the legislators aren’t confined today to offices of profit. There are countless other ways to win over or make legislators act under duress-- including the transfer of excess votes by ruling parties to candidates of other parties for elections to Rajya Sabha and Legislative Councils in bicameral assemblies.

Can there be a bigger trap than a legislator owing his membership to a party other than his own? We saw it happening in the recent round of elections to the Upper House. Expediently vitiated by many parties, the process made a mockery not just of the constitutional office of profit regulation. It exposed simultaneously the morally brittle plinth holding up the anti-defection law!

“The influence principle guiding the office of profit law stands diluted. It’s not as valid as it was at the time of its framing,” agreed former Lok Sabha secretary general G C Malhotra. “There is a need to change the law…but so long as it’s there, it has to be enforced.”

Governments indeed can dole out many favours. But influence peddling is greater these days by private commercial interests with their beachheads in provincial and central legislatures. How effectively is that being dealt with amid the somewhat legitimate ‘ease of business’ clamour? Even the mad race one sees between legislators to get nominated to influential parliamentary panels has to it the downside of compromise; of remote control by vested interests. In short, the Augean stables needs better cleaning.

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