Office of Profit, Politics of Loss: The ill that plagues many parties

About a week ago, the Union Law Ministry issued a notification that quoted President Ram Nath Kovind as saying that he had accepted the Election Commission of India's recommendations to disqualify 20 MLAs of Delhi's ruling Aam Aadmi Party. There is no immediate threat to Chief Minister Arvind Kejriwal's government as it still has the numbers in the Delhi Legislative Assembly, but the charge — Office of Profit — that led to the action has certainly demoralised the party that's still smarting from a string of electoral losses.

If the January 21 disqualification is not overturned by a court of law, by-elections to these seats have to be conducted within six months, a possibility that has enthused the Opposition. These MLAs had been appointed as "parliamentary secretaries" to "assist" ministers two years ago, while rules say lawmakers cannot hold any government post that comes with perks or powers. The BJP, with three MLAs, and the Congress, with none, have got a ready platform to improve their tallies. While the jury is still out to decide the fate of AAP MLAs, it's not for the first time when duly elected legislators have been disqualified and made to leave State Assembly or Parliament memberships for holding Offices of Profit.

Several prominent politicians, including Sonia Gandhi, Jaya Bachchan, Somnath Chatterjee and Shibu Soren, have had to weather the political storm on the question of holding Office of Profit. Sonia, a Lok Sabha MP, had to seek re-election after the issue of Office of Profit was raised against her because she also held the post of chairperson of the National Advisory Council during the UPA-I government.

The Supreme Court has said that an Office of Profit is an office that is capable of yielding a profit or pecuniary gain. But ruling dispensations have tried to find ways to still benefit their legislators. In 2015, the Kejriwal government sought to shield the MLAs by excluding the post from the ambit of Office of Profit laws with retrospective effect. But then President Pranab Mukherjee did not approve the legislative move, and referred a private petition in the matter to the poll body.

The genesis

The Indian Constitution owes the term Office of Profit, for disqualification of elected representatives, to Section 89 of the Government of India Act, 1935. Originally, it was first used in England through the Act of Settlement, 1701, to ensure that anyone who became a Roman Catholic, or married to one, gets disqualified to inherit the throne. Later, to ensure that the Royal household cannot influence administrative affairs in any manner, England enacted the House of Commons Disqualification Act, 1975, stating "no person who has an office or place of profit under the King, or receives a pension from the Crown, shall be capable of serving as a member of the House of Commons."

In India, to ensure the independence of legislators from the executive, provisions of Office of Profit were included under Articles 102 and 191 of the Constitution. These provisions bar a member of the Indian Parliament and a member of any Legislative Assembly from holding an office that would give him or her the opportunity to gain financial advantage or benefit. The Articles, however, exempt ministers, stating that "a person shall not be deemed to hold an Office of Profit under the government of India or the government of any state only because he or she is a minister." MPs and MLAs also cannot hold an Office of Profit under Section 9 (A) of the Representation of the People Act, 1951.

According to Constitution expert Dr Subhash Kashyap, the full term is Office of Profit Under The Government. The conditions are: it should be an office, it should be an office capable of yielding benefits, and profit does not mean merely pecuniary benefits. If the post has executive powers and public money is spent on it, it is deemed as Office of Profit, says Dr Kashyap.

The problem

The restrictions imposed by the two Articles made it difficult to oblige a large number of legislators. Lawmakers enacted the Parliament (Prevention of Disqualification) Act in 1959, which has been amended five times in 1993, 1999, 2000, 2006 and 2013 to exempt large number of offices from the purview of Office of Profit disqualification in spite of salary and other perks. By virtue of Section 3 of this Act, certain offices did not disqualify their holders from being members of Parliament. These include ministers who have been exempt, and 'any office' can be exempt by Parliament and legislative assemblies. Besides, other exemptions include Leader of Opposition, Chief Whip, Deputy Chief Whip or Whip in Parliament or of a Parliamentary Secretary, Chairpersons of Planning Commission, Minorities' Commission and Women's Commission.

In July 2004, the 91st amendment to the Constitution based on Venkatachaliah Commission's report limited the size of the Council of Ministers at the Centre and in states to no more than 15 per cent of the numbers in the Lok Sabha or a state Legislature. Though a progressive step to restrain formation of jumbo Cabinets, it prompted ruling parties in the central government and states to use the established system of appointing parliamentary secretaries to satisfy their MPs and MLAs. Constitution expert SK Sharma says no central Act or assembly rule mentions the word parliamentary secretary. "About three decades ago, the central government had four types of ministers: cabinet, state, deputy and parliamentary secretary. The last two were done away with. But the state governments borrowed and retained the concept from there to share the spoils of power with its MLAs," he said.

In the 2006 amendment, 55 posts were exempt from Office of Profit purview despite strong reservations by then President Dr APJ Abdul Kalam. These included Uttar Pradesh Irrigation and Flood Control Commission, West Bengal Industrial Development Corporation, Indian Statistical Institute, Kolkata, NAFED, Nehru Memorial Museum and Library, Maulana Azad Education Foundation, Dr Ambedkar Foundation, Haj Committee, Waqf Boards and Temple Trusts. In 2013, Parliament again amended the law to exempt the Scheduled Caste and Scheduled Tribes Commissions from Office of Profit. Similarly, various state governments have also amended the law.

Delhi govt case

Adjudicating the post of parliamentary secretaries as an Office of Profit, the Election Commission cited the three criteria used by the Joint Parliamentary Committee on Office of Profit in the current Lok Sabha. The JPC criteria included: whether the holder drew any remuneration; whether the body in which an office was held exercised executive, legislative or judicial powers; or whether such a body enabled the holder to wield influence by way of patronage. Deciding the case, the apex poll body held that the third test "is of great significance in the present case." The Commission maintained that the office of parliamentary secretary allowed the incumbents to participate in government meetings. Besides, they were also allotted office space and official transportation.

"These parliamentary secretaries had full-time access to the ministers and ministerial files... and this access enabled them to wield influence and power by way of patronage," the Commission said, recalling the Supreme Court ruling in the case of Jaya Bachchan, who was disqualified as Rajya Sabha MP in 2004 for using a chauffeur-driven vehicle at the government's expense as chairman of UP Film Development Council.

The solution

The solution, according to Dr Kashyap, lies in strict adherence to the rule of law established by the Supreme Court through its various judgments. In fact, the judgments are enough, provided they are adhered to and the courts, where such cases are pending, quickly adjudicate them. According to Professor Jagdeep Chhokar, founder and trustee of Association of Democratic Reforms (ADR), a non governmental organisation working on electoral reforms, all Offices of Profit should be abolished in toto. "There is no reason to give any benefits to MPs and MLAs. Increase their salaries, I won't mind if they are given Rs 10 lakh as salary but don't give them undue pecuniary benefits in the garb of honorary designations like parliamentary secretaries," said Chhokar.

WHAT'S THE WAY FORWARD

Recommendations given by Second Administrative Reforms Commission as part of its report on Ethics in Governance:

The law should clearly define Office of Profit based on three principles:
(a) exempt all offices in purely advisory bodies
(b) include all offices which involve executive decision making and control of public funds
(c) if, by virtue of being a Minister, somebody is also a member of an organisation such as the Planning Commission which is vital for day-to-day functioning of the government, it shall not be considered as office of profit.

Schemes such as MPLADS and MLALADS should be abolished to avoid conflict of interest between legislature and executive.

MPs and MLAs should be declared as 'public authorities' under the Right to Information Act, except when they are discharging legislative functions.

TWO MORE SOLUTIONS

Recommendations made by Joint Parliamentary Committee to Examine the constitutional and legal position relating to Office of Profit in 2008.

1. A precise definition of Office of Profit is necessary based on the broad principle of separation of powers of legislature and executive.
    
2. The practice of giving blanket exemption to Ministers to hold Office of Profit should be continued.

KEY SC JUDGMENTS ON OFFICE OF PROFIT

1958

Maulana Abdul Shakur vs Rikhab Chand 
Mohatmin (manager) of the Madrasa Durgah Khwaja Sahib Akbari is not an Office of Profit because it is not under the control of the government nor is his salary paid out of the revenues of the government.

1985

Ashok Kumar Bhattacharyya vs Ajoy Biswas
Accountant-in-charge of the Agartala Municipality is not an Office of Profit because the municipality is a separate and distinct legal entity. The state government does not exercise any control over officers like accountant-in-charge. The measure and nature of control exercised by the government over the employee must be judged based on the need to avoid any conflict between his personal interests and of the government.

1986

Bhagwati Prasad Dixit Ghoshal vs Rajeev Gandhi
A Member of Parliament drawing salary cannot be said to hold an office of profit.

1992

Satrucharla Chandrasekhar Raju vs Vyricherla Pradeep Kumar Dev and Others
A teacher in a primary school run by the Integrated Tribal Development Agency does not hold an Office of Profit. It stated that the mere control of the government over the authority having the power to appoint, dismiss, or control the working of the officer employed does not disqualify that officer from standing for election as a member of the Legislature.

2001

Shibu Soren vs Dayanand Sahay & Others
Chairman of Interim Jharkhand Area Autonomous Council is an Office of Profit because mere use of the word 'honorarium' cannot take the payment out of the purview of profit, if there is pecuniary gain for the recipient.

2006

Jaya Bachchan vs Union of India and Others
Chairperson of the Film Development Council is an Office of Profit under the government since it is capable of yielding a profit or pecuniary gain. Payment of honorarium in addition to compensatory allowances, rent-free accommodation and chauffeur-driven car at state expense are in the nature of remuneration that constitutes profit.