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The profit lies elsewhere

Is the Congress wrong in claiming that the chairpersonship of the National Advisory Council (NAC) is not an office of profit?

india Updated: Apr 21, 2006 19:58 IST

Is the Congress wrong in claiming that the chairpersonship of the National Advisory Council (NAC) is not an office of profit? Even if it is, is it impermissible to exempt it by law? Did anyone act illegally or unethically in the recent alleged ‘ordinance’ controversy? Was the machinery of government being suborned for the personal benefit of Sonia Gandhi? Now that the din and the dust have settled down, the legal and constitutional aspects, as also the political and perceptional aspects, deserve to be dispassionately examined.

It is astonishing that our founding fathers used the phrase ‘office of profit’ in over ten places in the Constitution but chose not to define it. In this, they inadvertently did us a disservice because the phrase has become grist to everyone’s mill and is attributed different subjective meanings by each person. Article 18 prohibits any Indian citizen from accepting any title from a foreign State while he “holds any office of profit or trust under the State”. Articles 58 and 59 prohibit any presidential candidate from holding an office of profit while Article 64 similarly disables a vice-president. Article 158 does so for the office of governor while Articles 102 and 191 complete the picture for MPs and MLAs.

An analysis of apex court judgments suggests that more than one of the essential conditions of office of profit are not legally fulfilled by the membership of NAC. It is trite law that the sine qua non for incurring disqualification is that (a) it must be an office under the central/state government, (b) the office must be one of profit, (c) the office must not be exempt from parliamentary or State law.

The NAC is not a department or organ of the government. It exercises no sovereign or State functions. None of its recommendations are binding on the government. It makes suggestions to the government in respect of the implementation (or lack of it) of the CMP. Its ‘monitoring’ is limited to advisory and recommendatory functions regarding the CMP. It allocates and distributes no funds, no licences and no government largesse. It makes no appointments.

The first crucial condition is thus not fulfilled. Jaya Bachchan occupied what from its title itself is part of the UP government, i.e. the UP Film Development Corporation. Shibu Soren was a part of an organ of the state itself, i.e. the Jharkhand Autonomous Council. Both had substantive sovereign powers of distribution of funds. The cases are as radically different as chalk and cheese.

Second, the same case law has repeatedly warned that what is or is not an office of profit is necessarily to be decided on a case-by-case basis, applying the law to the various factual details of the functions of that office. Generalisations are just not possible. It is ridiculous to suggest that because Bachchan or Soren were holding such offices, the NAC becomes such an office or that each of the 44 persons of different political parties, including the Speaker, are necessarily holding that office.

Third, the specific factual nature of each unique case is underlined by the Constitution, which mandatorily obliges (by Article 103) that any such issue must be referred to the president, that the latter shall seek the opinion of the Election Commission on it and that such opinion shall be binding on the president, i.e. the central government.

Fourth, the Opposition’s argument that the Congress practised the politics of vendetta, which rebounded on it, is absurd and mischievous. Article 103 shows that there is precious little discretion in anyone. The EC’s order is like a judicial order passed after hearing detailed arguments and containing detailed reasons and findings. The charge of the BJP spokesperson is, thus, not against the Congress but a grave, motivated and unfair charge against an independent constitutional authority like the EC. It is not only highly irresponsible but shows lack of understanding of the Constitution. But slinging mud at constitutional bodies is not new for the BJP — it has used intemperate language against the EC before.

Fifth, assuming that Sonia Gandhi is covered as office of profit, what is legally or ethically wrong in seeking to exempt that office? The Constitution gives an untrammeled power to do so. Indeed, case law recognises that there cannot be any disqualification so long as there is an exemption. Since 1959, when the parliamentary exempting Act was passed, thousands of offices have been added by different central and state governments to the list of exemptions. Political dishonesty reached a peak when the UP legislature recently added 79 such offices retrospectively to the list of exemptions even as the Samajwadi Party waxed eloquent against Sonia Gandhi and the Jharkhand assembly passed similar legislation amidst chaos while L.K. Advani preached principled politics!

The charge that an ordinance was being passed only to protect Sonia Gandhi is even more ludicrous. No one has alleged that there is even a draft of an ordinance focusing exclusively on her. No one has seen any such draft ordinance. Several political parties, including the SP and the BJP, were admittedly clamouring for exempting legislation since their perceived losses were many more than those of the Congress. In this scenario, legislation — by way of ordinance or otherwise — might well have been discussed. Is it ethical just, proper or responsible for the Opposition to actively demand legislation — the SP did it in writing — till a day before a news report is published and then to do an immoral volte face and castigate the government for proposing single person legislation and circumvention of Parliament?

Seventh, the hullabaloo about an ordinance is laughable. No one disputes the clear constitutional power given to pass ordinances. Even once passed, an ordinance has to be replaced by an Act of Parliament — it is not permanent and imperishable. How then is Parliament circumvented? The exemptions would have lapsed had Parliament not approved the Act, maybe after a few months. Was the government permanently escaping parliamentary scrutiny? And if the Constitution specifically permits something — thousands of ordinances have been passed by Parliament and state legislatures over the last 60 years by different political formations — how can the government be accused of acting unethically or illegally?

To such duplicity, hypocrisy and immorality of the Opposition, there could be only one answer and Sonia Gandhi gave it. The lady who first gave up prime ministership in 1991 and gave it up again in 2004 can hardly be even thought of as coveting NAC chairpersonship or MPship. It is much more difficult to be in politics and do public good while practising renunciation than to do so as an ascetic. No wonder the opposition does not want her back in Parliament. After all, no other party has such a leader.

(write to drams59@amsinghvi.com)