15 Dec 2009

Office of Profit: Unraveling the law

In this post we seek to unravel the issue which created furore a few months back in the Indian Parliament; 'Office of Profit'. The hornet's nest was stirred when Jaya Bachhan was disqualified from the membership of Rajya Sabha on the ground that she held the position of Chairperson of Uttar Pradesh Film Development Corporation. The matter came up right to the Supreme Court [Jaya Bachan v. Union of India, (2006) 5 SCC 266] which dismissed the challenge to the disqualification order holding it was immaterial whether the person actually received any remuneration or pecuniary gains from the office but the very fact that the person held the position was a valid disqualification from holding the position. 

This led to the challenge to the validity of the election of various other Members of Parliament who held similar positions. At this time of crisis the Parliament came together and all parties unanimously passed an amendment to the 'Parliament (Prevention of Disqualification) Act, 1959' which added a huge list of ‘Offices of Profit’ which do not disqualify the holders thereof for being chosen as, or for being the Members of Parliament. This amendment was challenged in a public interest litigation by the Consumer Education & Research Society (CERS) [which is known for being instrumental in pioneering the Consumer protection movement in India in the late 1980s]. In an eleborately written decision, the Supreme Court turned down the challenge to the validity of the amendment. 

The Supreme Court noted the historical and practical relevance of the disqualification on the ground of a Member of Parliament holding an 'Office of Profit' in the following terms;
The expression ‘Office of Profit’ is not defined in the Constitution. The view that certain offices or positions held by a Member of Parliament (Hereinafter also referred to as ‘MP’) may be either incompatible with his/her duty as an elected representative of the people, or affect his/her independence, and thus weaken the loyalty to his/her constituency and, therefore, should disqualify the holder thereof, had its origin in the Parliamentary history of the United Kingdom. (See: The Introduction to the Bhargava Committee Report on Office of Profit, dated 22.10.1955). The concept of ‘office of profit’ has a history of more than four centuries in United Kingdom and it has evolved through many phases. The first was the “privilege” phase (prior to 1640). The second was the “corruption” phase (from 1640). The third was the “ministerial responsibility” phase (after 1705). Initially the English Parliament claimed priority over the services of its Members and it was considered derogatory to its privilege if any of its Members accepted some other office which would require a great deal of their time and attention. This led to the evolution of the idea that the holding of certain offices would be incompatible with the responsibilities of a Member of Parliament. This was the first phase. During the second phase, there was a protracted conflict between the Crown and the House of Commons. Loyalty to the King and the loyalty to the House of Commons representing the will of the people became growingly irreconcilable and it was thought that if any Member accepted an ‘Office of Profit’ under the Crown, there was every chance of his loyalty to Parliament being compromised. Subsequently came the third phase. The King was reduced to the position of a constitutional head and the cabinet, functioning in the name of the Crown became the centre of the executive government. The Privy Councilors, who during the second phase were invariably considered to be the henchmen of the King and were as such looked upon with suspicion by the House of Commons, yielded place to the Ministers, who for some time were also disqualified from holding a seat in the House. Later it came to be recognized that the application of the disqualification rule to incumbent ministers was too extreme and with the intent of ensuring effective coordination between the executive and the legislature, it was accepted that the Members of the executive should be represented in the Parliament. This recognition led to the passing of several enactments by the British Parliament. The Re-Election of Ministers Act enacted by the British Parliament in 1919 and 1926 required any Member who was appointed to a ‘political office’ to seek re-election. 
3. As we have adopted the British Parliamentary form of Government, the concept of ‘office of profit’ was also adopted with some modifications. The concept of ‘office of profit’ began to develop with the entry of non-official members in the Legislature. A clear and precise statement in this regard was made in Section 26(1)(a) of the Government of India Act, 1935 which provided that a person shall be disqualified for being chosen as, and for being, a Member of either Chamber if he held any office of profit under the Crown of India, other than an office declared by Act of the Federal Legislature not to disqualify its holder. 
4. When the Constitution of India came into force on 26th January, 1950 declaring that a person holding an office of profit would be disqualified, the explanation to Article 102 clarified that a person who is a Minister (either for the Union or for any State) shall not be deemed to hold an office of profit. However, there existed Ministers of State as also Deputy Ministers in the Union Government who were not specifically exempted from disqualification under Article 102 because the expression ‘minister’ was construed as referring only to a Cabinet Minister. In order to address this situation, the Parliament (Prevention of Disqualification) Act, 1950 was enacted.

5. This was followed by the Parliament (Prevention of Disqualification) Act, 1951 declaring that certain offices (specified in Section 2 thereof) under the government shall not disqualify, and shall be deemed never to have disqualified the holders thereof for being chosen as, or for being, Members of Parliament. The said Act was given retrospective effect from 26.1.1950.
6. In 1954, a Committee was constituted under the chairmanship of Pandit Thakur Das Bhargava to study the various matters connected with the disqualification of MP’s and to make recommendations in order to enable the government to consider the manner in which a comprehensive legislation should be brought. The Committee submitted its report in 1955. In 1959 the Parliament (Prevention of Disqualification) Act, 1959 was enacted, thereby declaring that certain offices of profit under the government shall not disqualify the holders thereof for being chosen as or for being, Members of Parliament.
The Court also noted the Constitutional provisions in this regard that "Article 102(1)(a) lays down that a Member of either House of Parliament shall be disqualified if he holds any ‘office of profit’ under the Government of India or the Government of any State, other than an office declared by Parliament by law not to disqualify its holder. Section 101(3)(a) provided that if a Member of either House of Parliament becomes subject to any of the disqualifications mentioned in Article 102(1), his seat shall thereupon become vacant. Article 103 provides for reference of any question as to whether a Member of either House of Parliament has become subject to any of the disqualifications mentioned in Article 102(1) to the decision of the President, whose decision on the question is made final."

The challenge to the amending Act before the Supreme Court was primarily on account of the retrospective validation provided for by the Parliament by way of the amending Act. It was argued that "the purpose of removal of disqualification by a retrospective amendment to the Act was to ensure that persons who had ceased to be MP’s on account of incurring disqualifications would be re-inducted to Parliament without election, and that was impermissible and unconstitutional" in as much as the "person holding such office of profit, was disqualified to become or be a Member of Parliament and that such Member’s seat would become vacant on the very day when they were elected (with respect to those who were already holding the disqualifying office of profit, when they were elected) and on the day they accepted the disqualifying office of profit (with respect to those who accepted such disqualifying offices of profit during their tenure as Members of Parliament)" and that "when a Member’s seat had already became vacant by virtue of incurring a constitutional disqualification, his/her membership cannot be revived by enacting a legislation which retrospectively removed the applicable disqualification." It was also argued that "constitutional convention which has been followed for more than half a century was violated when 55 offices were given a ‘wholesale’ exemption with retrospective effect without obtaining any report from the Joint Committee on the question of whether the said “offices of profit” deserved to be exempted or not. It was hence argued that the Amendment Act was a colourable legislation which violated a well established constitutional convention."

The Supreme Court repelled the challenge to the law holding that the law to this regard was settled that "the power of Parliament to enact a law under Article 102(1)(a) includes the power of Parliament to enact such law retrospectively." The Court referred to its earlier decisions in Srimati Kanta Kathuria v. Manak Chand Surana, (1969) 3 SCC 268Indira Nehru Gandhi v. Raj Narain, (1975) Supp. SCC 1Nongthombam Ibomcha Singh v. Leisangthem Chandramani Singh & Ors., (1976) 4 SCC 291. The Court further delineated the constitutional scheme relating to disqualification of member upon holding office of profit as under;
The constitutional scheme therefore is that a person shall be disqualified from continuing as a Member of Parliament if he/she holds any disqualifying office of profit. Such a disqualification can result in the vacation of his/her seat when the Member admits or declares that he/she is holding the disqualifying office of profit. However, If he/she does not make a voluntary declaration about the same, the question of whether he/she is disqualified or not, if raised, shall have to be referred for a decision by the President of India the same will be made after obtaining the opinion of the Election Commission of India. The question of whether a particular member has incurred a disqualification can be referred for the decision of the President by any citizen by means of making an application to the President. It is only after the President decides that the Member has incurred an alleged disqualification that the particular member’s seat would become vacant. The words “if any question arises as to whether a Member of either House of Parliament has become subject to any disqualifications” conclusively shows that the question of whether a Member has become subject to any disqualification under clause (1) of Article 102 has to be decided only by the President. Such a question would of course be a mixed question of fact and law. The Constitution provides the manner in which that question is to be decided. We are of the view that it is only after such a decision is rendered by the President, that the seat occupied by an incumbent MP becomes vacant. The question of a person being disqualified under Article 102(1) and the question of his seat becoming vacant under Article 101(3)(a) though closely interlinked, are distinct and separate issues.
25. The constitutional scheme in Articles 101 to 104 contains several irrefutable indications that the vacancy of the seat would occur only when a decision is rendered by the President under Article 103 which declares that a Member has incurred a disqualification under Article 102(1) and not at the point of time when the Member is alleged to have incurred the disqualification.
There is no doubt that the disqualification, when declared by the President will become operative from the date the Member accepted the ‘office of profit’. It is also not in doubt that the vacation of the seat is consequential. However, the question is whether the seat of the Member become vacant without anything more when a person accepts an ‘office of profit’? The obvious answer is ‘no’. If the Member does not make a voluntary declaration that he/she has incurred a disqualification and if no one raises a dispute about the same, the Member would continue in spite of accepting an office of profit. There is nothing strange about this position. We have already noted that when a person who has incurred a disqualification offers himself /herself as a candidate and is subsequently elected and if no one objects and if the Returning Officer accepts the nomination and if no election petition is filed challenging the election, then he/she would continue as a Member in spite of the disqualification. Therefore, our considered opinion is that while a disqualification results in the vacation of the seat of a Member, the vacancy occurs only when the President decides and declares the disqualification under Article 103.
Further, dismissing the argument relating to colourable exercise of power to carry out the amendment including a host of offices, the Supreme Court observed as under;
Which 'offices' should be excluded for the purpose of disqualification, is a question that properly lies in the legislative domain. In this case, what kind of office would amount to an 'office of profit' under the Government and whether such an office of profit is to be exempted is a matter to be considered by the Parliament. The key concern that certain offices or places held by a MP may be either incompatible with his/her duty as an elected representative of the people or affect his/her independence and thus weaken his/her loyalty to his/her constituency and, therefore, should disqualify the holder thereof, is a matter to be addressed by the Parliament. It is also not possible to classify and include the offices exempted from the said disqualification in a generic sense. While making the legislation exempting any office, the question whether such office is incompatible with his/her position as a MP and whether his/her independence would be compromised and whether his/her loyalty to his/her constituency will be affected, should no doubt be kept in mind to safeguard the independence of the Members of the legislature and to ensure that they are free from any kind of undue influence from the executive. The learned counsel for the petitioners have not advanced any contention that any of the newly exempted 'offices' suffer from any such impropriety or will be prejudicial to the constituency or affect the independence of the member. The plea regarding violation of Article 14 merely because several other similar offices of profit are not included in the exempted category, has no basis. As each office of profit may have different effects and consequences on the Member, there is no viable basis for the assumption that all offices of profit are equal and that all offices of profit should be excluded. The argument based on Article 14 of the Constitution is highly illogical and without any force.

Have a look at the decision. The law, thus, that stands today is that the Parliament has complete power to specify which all offices are exempted from the purview of the expression 'Office of Profit' by amending the law. Such power can be exercised with retrospective effect and there is no bar in choosing such offices as Parliament may in its wisdom find appropriate to grant the exemption.

No comments: