Other parties escaped, AAP caught in 'office of profit' web

President Ram Nath Kovind approved the Election Commission's recommendation to disqualify 20 MLAs of the Aam Aadmi Party (AAP) for holding an 'office of profit' as parliamentary secretaries only recently, but the stage for the action was set long ago when former 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 the ambit of 'office of profit' and, instead, referred the matter to the Election Commission.

It is a bad proposition to expect conventional courtesy from a known hostile government. If conventional principles had any role to play in the present political situation, the proposed amendments would have been conceded by the President long back. The office of parliamentary secretaries would have been exempted from the 'office of profit' rule with retrospective effect. It has been done in the past and held valid by the Supreme Court, too. For instance, the Supreme Court in Kanta Kathuria vs Maneck Chand Surana (1970) held the power of the Rajasthan Assembly to remove the disqualification retrospectively by Section 2 of Rajasthan Legislative Assembly Members (Prevention of Disqualification) Act, 1969. It was also the case with the Office of Profit Amendment Act, 2006.

Be that as it may, the politics of 'office of profit' has handed the victimhood card to AAP to set the tone for the probable by-elections in Delhi. Secondly, the unprecedented disqualification will impact the fate of several MLAs holding parliamentary secretary positions in other states, including Chhattisgarh.

The Constitution provides holding an "office of profit" as a reason for disqualification for a person for being chosen as, and for being, a member of either House of Parliament or Legislative Assembly or Legislative Council of a state under Article 102(1) and Article 191(1) respectively.

Article 103 and Article 192 highlight the role of the Election Commission in deciding whether a legislator holds an office of profit or not. Both provisions entail the following: If any question arises as to whether a member of either House of Parliament or Legislature of a state has become subject to in clause (1) of Article 102 or Article 191, the question shall be referred for the decision of the President in the case of Parliament or Governor in the case of state legislature and their decision shall be final.

It is also clarified in the said provisions that before giving any decision on any such question, the President or Governor shall obtain the opinion of the Election Commission and shall act accordingly. Thus, in the present case of 20 MLAs, the opinion of Election Commission was binding on the President.

Office of Profit

In order to ensure independent functioning of parliamentarians and state legislators to hold the government accountable to their respective bodies, the principle of 'office of profit' was adopted in the Constitution to disqualify any person who holds any office of profit offered by the government. In this regard, four conditions are to be met for a person to be disqualified: 1) He should hold an office; 2) the office should be one of profit; 3) the office should be under the Union or State government; and 4) the office is not in the list that is excluded from disqualification by a law made by Parliament or a state legislature.

An explanation states that ministers of the Union or state are exempt from this rule. It also enables Parliament and state legislatures to make a law to expand the list of exempt offices. The Supreme Court, in its decision in Jaya Bachchan vs Union of India (2006), states that if 'pecuniary gain' is 'receivable' in connection with the office, then it becomes an office of profit, irrespective of whether such pecuniary gain is actually received or not.

The principle can be traced to developments in British constitutional history. It was laid down by the Act of Settlement in 1701, which states that no person who has an office or place of profit under the Crown shall be capable of serving as a member of the House of Commons. The wisdom of the legislature in relation to the 'office of profit' in India could be traced back to the Government of India Act, 1935, in Section 26(1)(a) and Section 69(1)(a).

These sections were referred by Dr Rajendra Prasad in a note to the Secretary of Constituent Assembly on September 29, 1948, in relation with the disqualification of certain Constituent Assembly members. The issue of the 'office of profit' was also debated on March 9, 1950 in the Interim Parliament, with Sardar Vallabhbhai Patel pointing it out in his communication with Jawaharlal Nehru.

Thereafter, Parliament enacted three Acts in 1950, 1951 and 1954 merely to exempt certain offices from disqualification. These Acts were finally replaced by the Parliament (Prevention of Disqualification) Act, 1959, which provided an exhaustive list of offices exempted from disqualification based on the Bhargava Committee recommendations in 1958. It has since been amended a number of times (1960, 1977, 1993, 1999, 2000 and 2006) to expand the list of exempted offices, that too without any serious attempt to define what is an 'office of profit'. The state governments, too, have added to the growing lists.

It is already settled now that AAP is no more a party with a difference. To appease its own MLAs, it too has adopted the same tactics as other parties. Yet, it is clear that AAP was unfairly denied what other ruling parties have been allowed -- to prevent disqualification arising from 'office of profit'.

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