Sonia too hit by ?office of profit?? | india | Hindustan Times
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Sonia too hit by ?office of profit??

THE TERM ?office of profit? has of late been hogging enough media limelight, and for the Bharatiya Janata Party (BJP), it has unexpectedly come handy to once again target Sonia Gandhi. Its plea is that if Jaya Bachchan has been disqualified from Rajya Sabha because she was holding an ?office of profit? by virtue of being the chairperson of the UP Film Development Corporation, Sonia, too, deserves to be ousted from Lok Sabha, because she, too, is holding an ?office of profit?, being the chairperson of the National Advisory Council (NAC), constituted in 2004 to monitor the implementation of the National Common Minimum Programme of the UPA Government.

india Updated: Mar 20, 2006 00:39 IST
JB Sinha

THE TERM ‘office of profit’ has of late been hogging enough media limelight, and for the Bharatiya Janata Party (BJP), it has unexpectedly come handy to once again target Sonia Gandhi. Its plea is that if Jaya Bachchan has been disqualified from Rajya Sabha because she was holding an ‘office of profit’ by virtue of being the chairperson of the UP Film Development Corporation, Sonia, too, deserves to be ousted from Lok Sabha, because she, too, is holding an ‘office of profit’, being the chairperson of the National Advisory Council (NAC), constituted in 2004 to monitor the implementation of the National Common Minimum Programme of the UPA Government.

The central question is if the office of the chairperson of the NAC really falls within the ambit of the term ‘office of profit’ under Article 102(1)(a) of the Constitution, so as to disqualify Sonia Gandhi from the membership of Lok Sabha.
Article 102(1)(a) does not define what an ‘office of profit’ is. And Jaya Bachchan has already approached the Supreme Court with a prayer that it should define this term, so as to remove uncertainties about it.

The question as to what really constitutes an ‘office of profit’ under Article 102(1)(a) is not something that the Supreme Court will be required to look into for the first time in Jaya Bachchan’s case. Some of the cases which came up before the apex court in the past did throw some light on the controversy.

In 2001, the Supreme Court set aside the election of Shibu Soren to Rajya Sabha on the ground that the office of chairman of a statutory body, the Interim Jharkhand Area Autonomous Council, which he was holding, was ‘an office of profit’.

The position emerging from the interpretation of Article 102 given by the court was that for an office to be an ‘office of profit’, its holder should be under the ‘control of the executive government (State or Central, as the case may be), with the power to remove or dismiss him, and “the manner in which that office functions”, too, should rest with the government. Since these yardsticks applied to the office which Sibu Soren was holding, he stood disqualified.

Then, in another 1985 case, having to do with the accountant of the Agartala municipality in Assam, the apex court held that the factors that are determinative of the holding of an ‘office’ under the government need not be conjointly present. This implied that each case, whenever it comes up, will need to be looked into to determine if the ‘office’, in question, falls squarely within these yardsticks.

Now where stands Sonia Gandhi’s case? The NAC, which she heads, was constituted by an order— no. 631/2/1/2004-Cab—issued by Central Government (Cabinet Secretariat). It says that the expenditure towards the NAC’s functioning would be met by the Central Government.

The functioning of the NAC, it further says, is ‘advisory’, consisting of “monitoring the progress and the implementation of the Common Minimum Programme, providing inputs for the formulation of policy by the Government, and providing support to the government in its legislative business”.

Of course constituted and funded by the Central Government, the NAC’s functioning is nonetheless advisory and independent sans any control whatsoever of the Central Government. This is so because the Central Government’s order, constituting the NAC, does not place its ‘functioning’ under the ‘control of the executive government’, and so, the basic pre-condition for determining, in the words of the apex court in Shibu Soren’s case, as to whether an office is an ‘office of profit’ does not seem to be prima facie operative against Sonia Gandhi.

Is the BJP’s latest outcry against Sonia not destined to peter out ultimately, being no better than firing empty political shots in the air? One has to wait and watch.