The office-of-profit law that forced Congress chief Sonia Gandhi to resign her Lok Sabha seat in 2006 is back in news, with 21 Aam Aadmi Party MLAs, also serving as parliamentary secretaries, staring at disqualification.
President Pranab Mukherjee has refused to give his assent to a bill passed by the Delhi assembly in 2015 to shield these lawmakers from the office-of-profit law.
Had the bill been cleared, it could have led to the dismissal of petitions pending with the President and the Delhi high court for the MLAs to lose their seats for holding a position that “profits” them -- in form of perks, position, monetarily or otherwise.
Though the 70-member assembly, where the AAP has a brute majority of 67, still has the option of returning the Delhi members of legislative assembly (removal of disqualification) amendment bill, 2015 to the President with or without amendments, it is highly unlikely that it would get a favourable response the second time around.
Office of profit
The idea behind the concept of office of profit – which evolved in England – is to preserve the independence of the legislature by keeping the members away from any temptations from the executive that can come in the way of independent discharge of their duties. It also seeks to enforce the principle of separation of power between the legislative, the judiciary and the executive – a basic feature of the Constitution.
Office of profit under Indian Constitution
The term office of profit has not been defined in the Constitution. But, articles 102 (1) and 191 (1) – which give effect to the concept of office of profit -- prescribe restrictions at the central and state level on lawmakers accepting government positions. Any violation attracts disqualification of MPs or MLAs, as the case may be.
According to Article 102 (1) (a), a person shall be disqualified as a member of Parliament for holding 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”. Article 191 (1) (a) has a similar provision for the members of state assemblies.
However, articles 102 and 191 clarify that “a person shall not be deemed to hold an office of profit under the government of India or the government of any state by reason only that he is a minister”.
Further, the last part of the two provisions protects a lawmaker holding a government position if the office has been made immune to disqualification by law.
Office of profit under NCT Act, 1991
Section 15(1)(a) of the government of national capital territory of Delhi act, 1991, says “a person shall be disqualified for being chosen as, and for being, a member of the legislative assembly if he holds any office of profit” under the government of India, a state or a union territory” other than an office protected by law.
Like articles 102 (1) and 191(1), Section 15(2) of the NCT act also protects ministers at the Centre, in states or union territories from disqualification. Section 15(3) of the NCT act says in case of a dispute over disqualification of an MLA, the matter would be referred to the President, whose decision would be final.
But, before deciding on a petition seeking disqualification, the President, says the NCT act, has to get the opinion of the election commission which is binding on him.
Financial benefit not necessary
What is important is that an office of profit does not necessarily mean financial benefits. Even an administrative position without any financial entitlements can fall foul of this law.
In Guru Gobind Basu vs Sankari Prasad Ghosal & others, the Supreme Court ruled in 1964 that the test for determining whether a person holds an office of profit is the test of appointment. Several factors such as appointing authority, the authority vested with the power to terminate the appointment, the authority that determines the remuneration, the source of remuneration and the power that comes with the position have to be considered.
The Parliament (prevention of disqualification) act, 1959 declares that certain offices of profit under shall not disqualify their holders. The act has been amended several times to exempt holders of various offices from the mischief of the office of profit law.
Sonia Gandhi’s case
Sonia Gandhi, a member of Lok Sabha, was appointed the chairperson of national advisory council by the UPA 1 government. After the issue of office of profit was raised, she quit as an MP and sought re-election. The prevention of disqualification act was amended in 2006 to add the position of NAC chairperson to the list of exempted posts.
The then Speaker Somnath Chatterjee, too, faced disqualification but was saved by amending the act.
Samajwadi Party MP Jaya Bachachan lost her seat for holding the post of chairperson of the Uttar Pradesh Film Development Federation.
The act was again amended in 2013 to save the chairpersons of the national commission for the scheduled castes and national commission for the scheduled tribes from disqualification.
But, with the President turning down the Delhi assembly’s attempt to amend the law, the fate of 21 AAP MLAs hangs in balance.