Listen above the din
The BJP-led NDA, through yet another of their seasonal marches to the Rashtrapati Bhavan, sought to invoke the office of the President in their partisan political battles. On the ‘office of profit’ issue, the President had sent back the legislation earlier adopted by both the Houses for reconsideration. The Union cabinet has now decided to move the same Bill once again. When this is adopted by both the Houses and sent to the President, all constitutional experts concur, he shall have to give assent forthwith. The BJP, however, has reportedly urged the President to seek the Supreme Court’s opinion under Article 143 of the Constitution before giving his assent. This patently violates the constitutional position, that a presidential reference of such nature can only be done on the “aid and advice of the Council of Ministers”. The BJP/NDA is, in fact, urging the President of India to act independently of the Council of Ministers. This is something that the Constitution explicitly rules out.
The BJP is thus seeking to force a constitutional crisis hoping to benefit from its consequences. Its double-speak, however, is startling. While opposing in Parliament, it has no compunction in invoking the same provisions in order to save its state governments. In the Jharkhand assembly, when its MLAs were facing imminent disqualification, thereby reducing its government to a minority, the BJP passed a similar Bill through a voice vote, then declared it as ‘passed’ and adjourned the House sine die. The House has not reconvened since. In Madhya Pradesh, the BJP Chief Minister and nine other ministers are facing similar imminent disqualification. Clearly, for the BJP, sauce for the goose is not sauce for the gander.
All this, however, brings us to the moot issue involved. What is an ‘office of profit’? There is no law on this matter, no definition provided by the Supreme Court or by the executive government. The absence of clarity is the major cause for current developments. Article 102 of the Constitution 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”.
Clearly, therefore, Parliament has to, by law, list the offices which do not fall in the category of ‘office of profit’, thus ensuring that no member is disqualified. These offices are listed under the Parliamentary (Prevention of Disqualification) Act 1959. This Act has been continuously amended to include newer offices by successive governments.
The point is not that this list should be constantly amended by adding new offices. This may have to be done in the immediate instance in order to prevent the potential large-scale disqualification of MPs and MLAs across the country. Relying on this manner alone as the solution, in the long-term would constitute classic knee-jerk policy.
The main issue revolves around the definition of an office of profit. MPs and MLAs often hold certain offices in order to provide relief to the people in various areas. The discharge of such responsibilities is concomitant with their duties as elected representatives to serve people’s interests. Viewed from this point of view, the various offices held by many members on a voluntary basis without drawing any remuneration cannot be considered as offices of profit. This, however, is an interpretation. This is not the law. And, that is the problem.
It is not a matter of general knowledge that there already exists a parliamentary joint committee on the offices of profit. Normally, on a reference from the presiding officer(s) of the House(s), this committee examines whether an office is one of profit or not. The Constitution however, explicitly states that the President of India, upon receipt of a complaint on this score, will refer the matter to the Election Commission whose decision on the matter will be binding. By forwarding the many petitions to the Election Commission the President is strictly abiding by the letter of the Constitution.
The spirit of the Constitution, however, may suggest that the President use his judgment before forwarding all petitions received by him, or refer them for opinion to some other body, say the joint parliamentary committee.
The parliamentary committee has, in fact, on one occasion stated: “The committee feels that the basic principle underlying the imposition of disqualification under Articles 102(1) (a) and 191(1) (a) of the Constitution is that a member of the legislature should not be indebted to government by accepting an office of profit under the government and thus compromise his independence.” In other words, an office of profit does not mean an office that yields monetary profit. Holding an office of profit is like holding an executive post which is likely to create a conflict of interest with the conduct of the legislators. For, in the final analysis, the job of the legislature is to keep a check on the executive and not be subservient to it.
In December 2005, the joint parliamentary committee submitted a report to Parliament identifying three criteria to determine if holding a certain office should disqualify members under the law. These are: “a) whether the holder draws any remuneration, like sitting fee, honorarium, salary etc. i.e. any remuneration other than the ‘compensatory allowance’; b) whether the body in which an office is held exercises executive, legislative or judicial power or confers powers of disbursement of funds, allotment of lands, issue of licences, etc, or gives powers of appointment, grant of scholarships and c) whether the body in which an office is held wields influence or power by way of patronage.” A closer look at these criteria and a comprehensive law defining the offices of profit needs to be urgently undertaken.
Another important issue merits attention in this context. This discourse is confined to MPs holding offices under the government. Are we to presume that no conflict of interest arises when MPs occupy posts in the corporate or the private sector? In the US, for instance, a person elected to the Senate cannot remain on the Board of Directors of any corporate while serving as a Senator. Obviously, being a lawmaker and a corporate director simultaneously raises serious issues of conflict of interest. Is it not time for us in India to examine such issues? Further, can professionals like lawyers carry brief for corporates while being MPs enacting laws that affect the interests of these very corporates? Such areas of conflict of interest must be addressed as well.
This must be done through an empowered parliamentary committee that must examine all these issues and draw up unambiguous definitions. While this process must be immediately initiated, in the interim, Parliament must amend its Act of 1959 to include the offices that are today excluded in order to resolve the present crisis. Such a dual strategy must be adopted so that the country can move ahead to address the more basic and urgent issues aimed at improving the livelihood of the people.
(The writer is Rajya Sabha MP and Member, CPI(M) Politburo)