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Profit in the fine print

There is no ambiguity in the law on what constitutes an office of profit. The posts held by Sonia Gandhi and Jaya Bachchan have been equated, and the controversy fuelled, by distorting the context.

india Updated: Apr 28, 2006 21:41 IST

The controversy over the ‘office of profit’ issue has created needless chaos because it has been played very much out of context. Although the confusion seems to have defused with Sonia Gandhi’s resignation from Parliament and the National Advisory Council (NAC), it remains a matter of confusion.

There is little similarity between Jaya Bachchan’s case and that of Sonia Gandhi. There are stark differences in the two cases, but by pitting the two together and ignoring what the law states, it is the fairly clear legislation that has been made out to be ‘confusing’. The clause for disqualification from Parliament, as phrased in the Constitution in Article 102, was inspired by the principles of integrity and transparency in public life. At the same time, it was a move to limit an MP’s work to the ‘service of the people’, rather than giving the MP an opportunity to ‘profit’ from other posts.

Presently, an MP incurs disqualification if he holds an ‘office of profit’ in some central or state institution. But as a Union or state minister, the person is exempted from the disqualification clause. The leader of Opposition in Parliament too can’t be disqualified under this category.

In 1993, offices of the deputy chairman, Planning Commission, the parliamentary secretary and chairman of the National Commission for Minorities, Scheduled Caste and  Scheduled Tribes and Women were included in the exempted category. MPs in these posts had the privilege of drawing a salary, perks and other allowances without any rider.

Interestingly, with further amendments, this list was extended to include even the offices of the chairman, directors or members of a statutory or non-statutory body. A member or chairperson of an advisory body and other committees, constituted to advise the government, were also exempted from this category. They, however, were entitled to a compensatory allowance, which includes transportation and daily allowance, but not a monthly honorarium.

There’s little fault in this classification. Institutions like the BCCI, DDCA, Press Club of India, Rajiv Gandhi Foundation, Olympics Association and others, as non-governmental organisations, do not attract disqualification. Nor have they been constituted by the government.

Compensatory allowance means money payable,  not exceeding the daily allowance of an MP, any conveyance, house rent allowance or travelling expenditure that an MP may incur in doing his official duty.

The constitution of the NAC and the entitlement that was fixed for Sonia Gandhi when she was appointed as the council’s chairperson must be viewed in this context. The NAC was constituted to monitor the implementation of the Common Minimum Programme. This was a non-statutory body created by administrative order under the Government of India, as per requirements of the Parliament (Prevention of Disqualification) Act, 1959. The crucial point in the appointment order of the chairperson is that it clearly states Sonia Gandhi’s position. The order has defined her status as a Union minister but does not mention her salary or perks or even the allowances, that she would be entitled to. Thus there is little ground on which conferment of rank and status can be cited as a reason for her disqualification.

The Supreme Court in 2002, in the case of Shibu Soren, had concluded that qualitative or quantitative aspects in the nomenclature of honorarium, remuneration, salary or allowance is not the determining factor. The issue was to figure out whether whether the amount received was only to compensate expenditures made in the line of duty. If this clause were exceeded, there was ample reason for disqualification. In Sonia Gandhi’s case, she was neither entitled to receive, nor interested in, claiming any such amount.

The impression of similarity with the case of Jaya Bachchan is a total distortion. Especially because the Election Commission categorically found that she was entitled to receive more than the compensatory allowance in her capacity as chairperson of the UP State Film Development Corporation. This distinguishing feature is rather apparent but strangely enough, has never been highlighted. The present imbroglio reflects nothing but the declining standards and ethics of public morality.

Would it now be justified to talk of further amendments? On what excuse? Does Parliament want to extend further financial benefits and perquisites? This in itself would be contrary to existing legislation. There really is no ambiguity in the law on the subject -- provided, of course, that one stays within the laid down parameters.