The ‘office of profit’ controversy keeps coming back every now and then. A number of high courts have struck down several such appointments, including appointments as parliamentary secretaries with rank of cabinet ministers/state ministers etc in Telangana, West Bengal, Assam. Several states continue to have them with all the perks and even huge payments. The stand of political parties, too, differs from state to state. Even decisions of the Supreme Court have been consistently inconsistent. The devil is in the detail and, therefore, a cursory look at the list of offices exempted from the ‘office of profit’ ambit convinces me to make the radical suggestion of abolishing disqualification on occupying an ‘office of profit’, as this concept creates an unrealistic expectation from the legislators, particularly of the ruling party.
President Ram Nath Kovind on Sunday accepted the Election Commission’s (EC) recommendation to disqualify 20 MLAs of Delhi’s ruling Aam Aadmi Party (AAP) for holding ‘offices of profit’. Under the Indian constitution, the president has no choice but to act in accordance with the EC’s advice in matters of disqualification. The Union law ministry’s notification, dated January 20, 2018, published on a Sunday i.e. January 21, 2018, said, “Having considered the matter in the light of the opinion expressed by the Election Commission, I, Ram Nath Kovind, President of India, in exercise of the powers…do hereby hold that the aforesaid 20 members of the Delhi legislative assembly stand disqualified from being members of the said assembly.”
The speed with which the order has been issued in response to the 132-paragraph advice of the EC is surprising. The unanimous and well-drafted advice has demolished all the arguments of the AAP. The Hindi translation, too, must have taken days. From the opinion, it is also clear that the commission neither gave an oral hearing nor allowed cross-examination of petitioners. It went ahead with its opinion, as the high court did not grant a stay. The EC has discussed the petitioner’s argument at length but has mentioned briefly the AAP’s arguments. The EC’s main arguments for disqualification are: impugned order of appointment of March 13, 2015 did not create any post; office-spaces with renovation and furniture were provided to these parliamentary secretaries; these posts were not only of executive nature but executive in themselves, they attended jan-sunvai or other conferences and meetings, and therefore, they occupied offices of profit. The EC further said that it was only an office to which appointments could be made, while these people were administered oath of office.
The legislators were appointed as parliamentary secretaries under various ministers. The then President (Pranab Mukherjee) had strangely and wrongly returned the Bill, which was passed to save their membership. The enactment of retrospective law by the AAP in itself was not a problem. Parliamentary law on ‘office of profit’ in 2006, too, was retrospective with effect from April 4, 1959. The Narendra Modi government also recently passed the Enemy Property Bill with retrospective effect.
One may sympathise with the AAP, as the EC for the last two years was just examining the issue of maintainability of disqualification request (hearings held on maintainability on November 15, 2016, November 22, 2016, December 7, 2016, December 16, 2016 and March 27, 2017) after the Delhi high court, according to the AAP, had struck down these controversial appointments as void ab initio, i.e., from the very beginning. Since there were no appointments, there was no case considering disqualification on the basis of appointments as parliamentary secretaries. The EC rejected this argument and said that the high court merely set aside the appointment order for want of communication/concurrence of Lt. Governor. Moreover, since an election commissioner who heard this matter has retired, how could an outgoing Chief Election Commissioner, without giving a hearing in the presence of at least one more Election Commissioner dispose of this crucial quasi-judicial matter of disqualification, the AAP argued. But the commission’s advice clearly mentions that Election Commissioner O.P. Rawat did agree to participate.
The rationale of ‘office of profit’
This high-profile controversy gives us yet another opportunity to revisit the rationale of ‘office of profit’. Why have disqualification for occupying such an office? What does this expression really mean? How have courts interpreted it? The ‘office of profit’ disqualification started in England through the Act of Settlement, 1701. Till 1919, legislators who were appointed ministers used to lose their right to sit as members in the House of Commons. The Commons Disqualification Act, 1975, lists the offices which can be disqualified. These are Lord Spirituals (21 Bishops of Anglican Church are appointed as Members of House of Lords), judges, civil servants, regular members of armed forces etc. In the US, Article 1, Section 6, Clause 2 explicitly lays down that ‘no senator or representative shall, during the time for which he was elected, be appointed to any civil office under the authority of United States, which shall be created or the emoluments whereof shall have been increased during such time and no person holding any office under the United States, shall be a member of either house during the continuance in office’. Thus, legislators cannot create an office and then be appointed to it. This is perfectly justified.
In India, Articles 102 and 191 of the constitution talk of ‘office of profit’ to ensure the independence of legislators from the government. Ministers are exempted under the explanation and ‘any office’ can be exempted by parliament/legislative assembly. The expression ‘any office’ gives unbridled power. The Parliament (Prevention of Disqualification) Act, enacted in 1959, which has been amended five times (1993, 1999, 2000, 2006, 2013) to include large offices that have been exempted from the purview of ‘office of profit’ disqualification in spite of salary and other perks. Interestingly, both the Lok Sabha and the Rajya Sabha rules do include parliamentary secretaries within the definitions of ministers who are thus exempt from ‘office of profit’ prohibition. What is good for parliament should ideally be good for assemblies as well.
Over the years, hundreds of posts under the central and state governments such as leader of opposition, chief whip, chairman planning commission, minorities’ commission, women commission etc. have been exempted. In 2006, as many as 55 new categories of offices were exempted. These included the Irrigation and Flood Control Commission, Uttar Pradesh, West Bengal Industrial Development Corporation, Indian Statistical Institute, Kolkata, Haj Committee, NAFED, Nehru Memorial Museum and Library, Dalit Sena, Maulana Azad Education Foundation, Dr Ambedkar Foundation, Waqf Boards, Temple Trusts. In 2013, Scheduled Caste and Scheduled Tribes Commissions were similarly exempted. The EC did note that Delhi Act has exempted only 14 such offices.
Former President A.P.J. Abdul Kalam had initially returned the 2006 Bill as he was unhappy at the inclusion of so many offices in the exempted list and also because it was done without defining the expression ‘office of profit’. He had to subsequently sign the Bill after it was passed without any amendment. He has said that signing this Bill was the “toughest decision” of his presidency.
Disqualification on the basis of ‘office of profit’ may be fine in a presidential form of government, like in the US where the government is not responsible to the Congress and there is a ‘separation of powers’ between the three organs of government, of course, with some ‘checks and balances’. But in a parliamentary democracy like ours, where the government cannot survive even for a minute if it loses the confidence of the Lok Sabha/Vidhan Sabha, there is an inbuilt close link between the legislature and the executive, and ‘office of profit’ is a useless mechanism to ensure independence of legislators from the government. To think that if some perks and positions are denied to legislators, they will become completely independent from the government and speak fearlessly in the House is naïve. In our system, all ministers, including the prime minister and chief ministers, are members of the House. Expecting members of the ruling party to behave independently from their own government is unrealistic. Moreover, with the anti-defection law, no member of the ruling party can speak or vote against his party and if he does, he will lose his membership under schedule X of the constitution. We have, in fact, taken away the foremost legislative privilege of freedom of speech from our legislators.
Disqualification due to ‘office of profit’ in a parliamentary democracy like ours looks flawed, as all ministers and members of Parliament of the majority party constitute the treasury benches. Parliament must control government, but as a matter of fact, it is not parliament but government that controls parliament. By disqualifying member legislators for occupying an office of profit, independence of parliamentarians cannot be ensured. Unfortunately, even the Election Commission in Para 69 and Para 74 has said that ‘independence of legislators will be jeopardized’ if they accepted position from government.
In fact, legislators can never be independent of government. Offices like ‘parliamentary secretaries’, ‘chairmanship of boards and committees’ and similar other offices are given to them to keep them contented as, due to the 15 per cent cap introduced by the 91st constitutional amendment on the appointment of ministers, if the government does not rehabilitate them like this, they would defect to other parties and try to bring down the government if it enjoys just a razor thin majority.
The expression ‘office of profit’ has three elements, i.e there should be an office; it should be under the government; and it should be the one from which holder of office derives profit. Now the million dollar question is what is ‘profit’? The Supreme Court in Agadi Sangama case observed that “profit means pecuniary gain other than as compensation to defray his out-of-pocket expenses that may have the possibility to bring that person under the influence of the executive which is conferring that benefit on him.” In the Sibhu Soren case, the court clarified that irrespective of nomenclature, if some pecuniary gain is there, it is ‘profit’. Thus the mere use of expression honorarium could not save the membership. Similarly, in the Jaya Bachchan case, it was held that it is of no significance whether the person received or did not receive payment. If some payment was payable, it is enough to attract disqualification under the ‘office of profit’ provision. The Election Commission has relied on this ruling to reject AAP’s argument of not receiving anything as parliamentary secretary. On the other side, if someone such as the Chairman of Kerala Haj Committee simply received travelling allowance and daily allowance, he would not attract disqualification, as these allowances are merely compensatory, not pecuniary. This is the latest apex court ruling on which AAP was resting its case, but commission made just a passing reference to it.
There is some substance in the argument that politicians are not given these offices for, at times very small, monetary gains. The real goal is to give them some status, power and influence. Thus the Delhi government in its March 14, 2015 statement clearly stated that these 21 parliamentary secretaries will not get any remuneration or perks of any kind from the government. Moreover, AAP is claiming that, in fact, these parliamentary secretaries have not been paid a single penny or even travelled in official vehicle. But since the office of ‘parliamentary secretary’ under the Chief Minister is already exempt from the disqualification under the 1997 Delhi Disqualification Law, as amended in 2006, and the returned Delhi Bill merely added word ‘ministers’ after the chief minister, ideally it should have been assented to. In fact, this amendment was probably not required as chief minister, too, is just a minister though, of course, “first amongst the equals”. But, Arvind Kejriwal out of abundant caution got this amendment passed and invited this problem. He thought that since BJP-ruled Gujarat, Haryana, Rajasthan and now Arunachal Pradesh, too, had parliamentary secretaries, no one would question him. In fact, in Punjab, they are paid Rs 1 lakh per month in addition to other perks.
It is time to either expand the definition to include ‘power and influence’ for which such offices are really created, or remove the provision as such as it has failed to achieve the desired goal of legislative independence. Barring legislators from holding offices which give just compensatory out-of-pocket expenses is not only against the existing law but also against realities of our parliamentary democracy. The disqualification of AAP legislators should be used as an opportunity to revisit the disqualification on the basis of ‘office of profit’ rather than attacking the Election Commission.
Faizan Mustafa is vice-chancellor, NALSAR University of Law, Hyderabad. Views expressed are personal.