A precedent has been set in the Rajya Sabha: Samajwadi Party member Jaya Bachchan does not need to return the salary and allowances she received as a member of the Upper House during the period of her retrospective disqualification by a Presidential order.
Likewise, the speeches and interventions she made between July 14, 2004 and March 17, 2006 - the period of her retrospective disqualification - would not be removed from the parliamentary records.
The decision is in line with the advice of the Law Ministry to which the Rajya Sabha Secretariat had turned for guidance when Bachchan was retrospectively disqualified for holding an office of profit as chairperson of Uttar Pradesh Film Development Corporation (UPFDC).
Jaya became a Rajya Sabha member on July 4, 2004 and took charge of the UPFDC ten days later. A petition was subsequently filed against her for holding an office of profit and on March 17 she became the first member to be disqualified with retrospective effect. She later re-entered the Upper House.
With no precedent to go by, Bachchan’s retrospective disqualification put the Secretariat in a quandary on the stand it should take with regard to the salary and perks she drew and her participation in House proceedings. Last March, it directed its queries to the Law Ministry which responded after getting two reminders and going through various court rulings and other laws.
According to the advice tendered by the Ministry in October - and accepted by the Secretariat thereafter - Bachchan was, before her disqualification, a member of the House and had performed her duties as an MP. Therefore, there was no need to either recover the salary and perks she drew during the period of her retrospective disqualification or erase the record of her participation in House proceedings.
"Something which has actually taken place cannot be wiped out," it said. It added, in another context, that "it would be unfair and inequitable to recover the salary and allowances paid to Jaya Bachchan."
Describing the Bachchan case as "unique", Yogendra Narain, Rajya Sabha secretary general, said: "The decision is in accordance with earlier Supreme Court rulings. While setting aside election petitions, the apex court has always held that all acts done as a member of Parliament or legislature would be in order."
Bachchan’s was the first case of retrospective disqualification and the second of disqualification. In 1982, R Mohanarangam was disqualified for holding the position of special representative of the Tamil Nadu government in New Delhi. But his disqualification was not with retrospective effect.