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Lacking in both letter and spirit

The law falls woefully short in defining ?office of profit? in a clear manner, writes Shreevatsa Nevatia.

india Updated: Apr 21, 2006 19:58 IST

What seemed a small step for UP Congressman Madan Mohan Shukla proved to be a giant leap for Indian politics. When he petitioned the President against Jaya Bachchan holding an office of profit unconstitutionally, little did he realise that his own party president, Sonia Gandhi, would fall by the same sword.

What actually constitutes an office of profit? The Constitution has no Article, Act or Amendment that clearly defines the term. Article 102 states: “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.”

When Jaya Bachchan was disqualified as an MP, a commonly held view was that she was running a business on the side, heading a profitable office that helped her earn that much more.

Demystifying this naïve interpretation, Rajya Sabha MP and senior advocate Ram Jethmalani says, “First, ‘office of profit’ is a technical expression and not a literal one. It does not mean an office that yields monetary profit. Holding an office of profit amounts to holding an Executive post, which is likely to create a conflict of interest. The job of the Legislature is to keep a check on the Executive, not to be subservient to it.”

As early as 1954, MPs were of the view that ‘office of profit’ had to be defined more comprehensively. A Joint Committee headed by Thakur Das Bhargava was constituted. The committee did not recommend a redefinition, but listed a number of offices that should not incur disqualification. These were later listed under the Parliament (Prevention of Disqualification) Act, 1959. The Act has been amended a number of times to include newer offices.

During its regime, the NDA guarded its flock by adding to the list. But the UPA government, in its own wisdom, did not see this constitutional intricacy as a threat. Eventually, it caught up with them.

What was the Joint Committee on the Offices of Profit doing? Well, it is not meant to oversee the affairs of MPs or MLAs. It kicks into action only when a government, an MP or a governmental agency wants to clarify whether an office is one of profit or not. The query is usually referred to the Committee by the House Speaker. After the Committee offers its recommendation, the government may choose to amend the Act and include the position in the exempt list.

Water resources minister Saif-ud-din Soz, earlier a member of the Joint Committee, admits, “There used to be so many times when we groped in the dark for way too long because there is no clear law.”

While most experts agree with Soz on this count, they say that each case needs to be dealt with separately. Keeping this in mind, the Bhargava Committee had recommended the setting up of a preliminary standing committee that would undertake the work of continuous scrutiny. The advice, however, was not acted upon.

The Bhargava Committee report also said that membership of committees formed for advising government should not be disqualified. Taking a cue from this view, former attorney-general Soli Sorabjee says, “I think the Congress just pushed the panic button, even though they didn't need to.” Sorabjee offers two courses for the way ahead. “We must clearly define the elements of what makes an office of profit and what doesn’t, and the Prevention of Disqualification Act needs to be amended to place more offices in the non-profit list.”

Maybe this time the call will be heeded.