Office of profit: AAP was opportunistic

The term ‘office of profit’ is no more the exclusive domain of legal luminaries in India. It is now discussed and debated in common parlance. Recently, it was the turn of 21 MLAs of the Aam Aadmi Party (AAP) who, on being appointed as parliamentary secretaries, are caught in the web of ‘office of profit’ provision.

The story for AAP turned complicated when President Pranab Mukherjee refused to give assent to the amendment proposed to the Delhi Members of Legislative Assembly (Removal of Disqualification) Act, 1997 to exempt parliamentary secretaries from ‘office of profit’.

Ideally, the amendment proposed by the Delhi Assembly should have been accepted by the President. Because the proposed amendment was quite in accordance with the Article 191(1)(a) which empowers Legislature of the states to make laws to declare any office as the ‘office of non-profit’ thereby not to disqualify its holder even from retrospective effect.

There are many instances from the past and also rulings by the Supreme Court on this issue. For instance, the Supreme Court in Kanta Kathuria vs Maneck Chand Surana (1970) case held the power of Rajasthan Legislative Assembly to remove the disqualification retrospectively. Thus, in all probabilities, the ‘denial of assent’ to the proposed amendment should be treated as ‘denial of power’ to the state legislature.

Be that as it may, the Election Commission is now duty bound to give its opinion in accordance with the yardsticks already put in place by the Supreme Court in the very first case on office of profit in Ravanna Subanna vs GS Kageerappa in 1954 and since then, constantly through numerous judgments till date, it reiterated with additional yardsticks like: whether the government has the right to exercise full control over the office in terms of appointment, removal or dismissal, determining duties and functions; whether the functions of the office are carried out for the government; whether the office enables the holder to wield influence or power by way of patronage; and whether the government pays any remuneration other than ‘compensatory allowances’.

However, in the Jaya Bachchan case in 2006, the  Court went beyond the test of direct pecuniary gains by incorporating the capability of the office to yield a profit or gain in any form. Nevertheless, the Supreme Court in Divya Prakash vs Kuttar Chand Rana (1975) case, held that if a person appointed to a post in an honorary capacity without any remuneration, though the post carried remuneration, the person did not hold an office of profit.

Notably, it is difficult to a maintain fine balance between the legislature and the executive due to the ‘fusion of power’ principle of Indian democracy. Due to this, B N Rao’s suggestion ‘to put the disqualifications only in the Constitution’ and K T Shah’s proposal to disqualify any person ‘who accepts any office or post carrying a salary... shall be deemed forthwith to vacate his seat” on May 19, 1949 were straightforwardly rejected by the members of Constituent Assembly.

In fact, unlike the provisions dealing with ‘office of profit’ in relation with executives like President [Article 58(2)], vice-president [Article 66(4)] and governor [Article 158(2)], the power to exempt the offices held by legislators as the ‘offices of profit’ was leniently left to the wisdom of Parliament and Legislatures of the states.

Interestingly, it was Dr Rajendra Prasad who first discussed the ‘office of profit’ provisions mentioned in the Government of India Act 1935 as Section 26(1)(a) and Section 69(1)(a) in a note to the Secretary of Constituent Assembly on September 29, 1948 in the following terms: “Therefore, a person who has been appointed, for example, Deputy High Commissioner for India in Pakistan as Dr P K Sen has been appointed or a member of the Governing Board of the Damodar Valley Project as Phulan Prasad Verma has been appointed, he will not be disqualified from continuing as a member of the Constituent Assembly.”

List of exemption

The issue again came up in the Interim Parliament on March 9, 1950 as pointed out in Sardar Vallabhbhai Patel’s communication to Jawaharlal Nehru: “You will recall that when the question came up about granting disqualification on account of holding an office of profit under the government, the question arose about their holding office as members of various committees, boards, etc., appointed by government… As for the future, we might exempt those who might be appointed as members by the Government with the consent of the Speaker.”

Finally, parliament enacted the Parliament (Prevention of Disqualification) Act, 1959 to provide an exhaustive list of offices exempted from disqualification based on the Bhargava Committee recommendations in 1958. Similar laws were made by the state legislatures.

The ‘office of profit’ has now emerged as a rallying point of political bargain between opposition and ruling parties. The natural consequence of this unholy understanding is reflected in the frequent amendments made to protect the interest of the prominent legislators who are either disqualified or threatened with disqualification by virtue of holding offices of profit.

The AAP did act similarly. It may appear opportunistic or travesty of constitutional morality, the law to prevent disqualification arising from office of profit has always been used to the convenience of the ruling party. It was only the 2006 Amendment Act which was returned for reconsideration for the first time in the parliamentary history of India by the then President A P J Abdul Kalam before being passed again and enacted.

Whatever may be the outcome of Election Commission’s considered opinion, AAP would now be ignominiously dismissed for putting its ‘upright image’ at stake by granting the ‘offices of honour’ if not ‘offices of profit’ to keep its flock together. Like other political parties, the charge of political dishonesty against AAP is equally justified.

(The writer is Associate Professor & Head, Department of Political Science, Maulana Azad National Urdu University, Hyderabad)