Don?t dilute Article 102
‘My dear Jawaharlal — You will recall that when the question came up about granting exemptions to members of Parliament from disqualification on account of holding an office of profit under the government, the question arose about their holding office as members of various committees, boards, etc. appointed by government,’ wrote Vallabhbhai Patel to the PM on April 9, 1950, shortly after the Constitution came into force. He would exempt existing holders of office.
“As for the future, we might exempt those who might be appointed as members by Government with the consent of the speaker. This would severely restrict the number of members who would be getting such exemptions and the speaker could be depended upon to safeguard against the abuse of this power or converting this into patronage by the executive government.”
He was well aware of the role of ‘placemen’ in English constitutional history. MPs were given offices to secure a majority for the King’s party in the House of Commons. On March 5, 1981, the then Chief Election Commissioner, S.L. Shakdher, criticised similar abuse in Haryana and Himachal Pradesh. The ruling party had accommodated nearly all the MLAs by giving them offices of profit, such as chairmanship of public bodies, some of which had more perks and prestige than the minister’s berth. “Was this the rule of law?” he asked.
Haryana’s CM Bhajan Lal announced on April 29, 1982, that MLAs who were chairmen in PSUs had resigned after denial of the party ticket — the posts were to be filled in by the MLAs to come. Devraj Urs appointed 47 MLAs as members of land tribunals and another 47 to various PSUs. On March 24, 2006, the then Jharkhand government hurriedly enacted a Bill to save 11 supporters among its 44 in a House of 81 from certain disqualification — and to save itself from collapse.
What has emerged in the recent crisis is a sharp divide between the generation of Patel, which accepted the values of parliamentary democracy, and of today’s politicians who accept only the forms, if at all. The Lala who converts his pedhi into a limited company does not necessarily accept corporate culture. An all-party accord is proposed on what constitutes an ‘office of profit’. That is an alarming prospect. Politicians hang together when their own interests are at stake. The move to make Parliament, instead of the EC, judge of disqualification would be struck down as the move to make Parliament judge of election disputes was in Indira Gandhi’s case in 1975.
The crisis did not arise because the law was uncertain but for two different reasons. One pertains to a small group of honest, but crassly negligent MPs who accepted such offices heedless of the consequences that were known to all. Lawyers are asked to vet nomination papers. Why were they not consulted when the jobs were accepted? Sushilkumar Shinde used his common sense and resigned from an ‘office of profit’ before filing his nomination papers for the Rajya Sabha.
In contrast to the honest but negligent who sleep-walk into a conflict of interest situation is another group of legislators who offer their loyalties to the highest bidder.
Article 102 (1) (a) of the Constitution explicitly disqualifies a person from membership of Parliament “if he holds any office of profit under the Government of India or the Government of the state”. This fundamental bar represents a clear mandate of the Constitution. Art. 191 contains an identical bar in respect of membership of the State Legislature. In each case, the provision goes on to empower the respective legislature to make exception: “other than an office declared by” it “by law not to be disqualify its holder”. That mandate has been flouted with impunity by several governments by abusing the power to make exceptions.
The framers of the Constitution rejected a suggestion to deny this power because “it is not possible to define clearly the offices which it may be necessary to exclude”. Half a century later, this is no longer true. The Supreme Court’s latest ruling in Shibu Soren’s case (2001) is definitive, especially in the light of earlier rulings. The tests are clear: Does the government appoint the MP to that office? Has it the power of removal? Does it pay the remuneration? Does he perform governmental functions?
“Sometimes the form may be that of a body corporate independent of the government, but in substance it may just be the alter ego of the government itself.” In 1964, the court ruled: “Whether tests will be held on one factor or the other will depend on the facts of each case. However, where the several elements, the power to appoint, the power to dismiss, the power to control and give direction as to the manner in which the duties of the office are to be performed, and the power to determine a question of remuneration are all present in a given case, then it must be held that the officer in question holds the office under the authority so empowered.” These tests are pre-eminently sound and relevant. Why not codify them in legislation?
The courts’ rulings over 40 years have been consistent and clear. In 1974 the court delivered a warning which the forthcoming politicians’ conclave cannot ignore: “So long as this exemptive power is exercised reasonably and with due restraint and in a manner which does not drain out Article 191 (1) (a) of its real content of disregard any constitutional guarantee or mandate, the court will not interfere.” In other words, interfere it will if, as some suggest, the exceptions are widened to flout the mandate.
The damage was done by the Parliament (Prevention of Disqualification Act, 1954. It was a cynical measure in a complete break from the past. It permitted MPs to hold “the office of chairman, director or member of any statutory or non-statutory body... if the holder of such office is not entitled to any remuneration other than compensatory allowance”. Remuneration is hardly a test. The office itself confers considerable power, prestige and influence on the holder and, sad to say, the means of acquiring money far exceeding the remuneration the State pays to holders of public office. It is a substantial consolation prize to MLAs denied ministerial office. It is also a means of evading the ceiling of cabinets a pact no court can ignore.
Two schedules to the Act list various public bodies. Chairmanship of any of them and secretaryship of some incurs disqualification. But membership of none of these influential bodies affects membership of Parliament. That goes for membership of the boards of directors of almost all the national public corporations such as the STC, National Industrial Development Corporation and HMT. The effect on parliamentary surveillance over these bodies will be baleful. The House of Commons Disqualification Act, 1975, bars MPs from membership of public authorities and undertakings.
The best course is to codify the tests laid down by the Supreme Court in legislation so that anyone can read them. As the Bombay High Court noted, the object of Art. 102 “is to secure independence of the members of the Legislature and to ensure that the Legislature does not contain persons who have received favours or benefits from the executive and who, consequently, being under an obligation to the executive, might be amendable to its influence”.
The Act of 1959 itself is of doubtful validity. Any further dilution of Art. 102 will be struck down by the Supreme Court as a fraud on the Constitution. Its object is not only to prevent conflict of interests but to prevent the sale of souls.