The courts give varying interpretations depending upon the facts of each case. The best course appears to be to refer the matter to a Parliamentary Joint Committee to determine which of the offices would attract disqualification.
THE QUESTION whether a person holds an office of profit has to be interpreted based on the facts and circumstances of each case and the relevant statutory provisions. In Ashok Kumar Bhattacharya vs Ajoy Biswas (AIR 1985 SC 211) the Supreme Court held that to determine whether a person holds an office under the Government, each case must be measured and judged in the light of the relevant provisions and sections.
Minister for Parliamentary Affairs Priya Ranjan Dasmunsi has stated that a new legislation would be enacted for declaring in retrospect that some of the posts held by Members of Parliament were not to be treated as offices of profit. The proposed new legislation was to be comprehensive rather than a simple amendment to the existing Parliament (Prevention of Disqualification) Act, 1959.
Clause (a) of Article 102 of the Constitution of India says a person shall be disqualified for being chosen as, and for being, a member of either house of Parliament, 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.
The object of the provision is to secure independence of the MPs and to ensure that Parliament does not contain persons who have received favours or benefits from the executive and who consequently might be amenable to its influence. In other words, the provision appears to have been made in order to eliminate or reduce the risk of conflict between duty and self-interest among MPs. This provision is thus designed to protect the democratic fabric of the country from being corrupted by executive patronage and also secures the independence of MPs from the influence of the Government so that they discharge their functions without fear or favour.
India had the Parliament (Prevention of Disqualification) Act, 1950, 1951, and 1953 exempting certain posts from being recorded as offices of profit. All these Acts were replaced by the Parliament (Prevention of Disqualification) Act, 1959. By virtue of section 3 of the said Act, certain offices did not disqualify their holders from being members of either houses of Parliament.
Certain offices were declared to be non-profit. A list of non-profit offices have been mentioned in Part II of the Schedule to the Parliament (Prevention of Disqualification) Act, 1959. The membership of bodies listed in Part I of the same Schedule entails no disqualification on the ground of holding an office.
The expression "office of profit" has not been defined in the Constitution or in the Representation of the People Act, 1951. It is for the courts to explain the significance and meaning of this concept. Over the years, courts have decided this issue in the context of specific factual situations.
Thus the final interpretation and decision whether a person is disqualified or not rests with the courts and not with Parliament.
The first and foremost question to be asked is: does the Government have the power to appoint to and remove from an office? If the answer is in the negative, no further enquiry is called for. If the answer be positive, further probe has to go on. The totality of the facts and circumstances reviewed in the light of the provisions of the relevant Act, if any, would lead to an inference being drawn if the office held is under the Government. On account of holding of such office, would the Government be in a position to so influence him or her as to interfere with independence in functioning or would the holding of the two offices one under the Government and the other of MP involve a conflict of interests inter se? This is how the issue has to be approached and resolved.
As new bodies are created regularly, the question as to the membership of which of these bodies would be a disqualification for membership of Parliament is a matter demanding constant review. To meet this need, a Joint Committee on office of profit has been constituted consisting of 10 members from the Lok Sabha and five members from the Rajya Sabha. The function of the Committee, inter alia, is to undertake a continuous scrutiny of the composition and character of various government appointed bodies and report to both houses as to the membership of which of these ought to disqualify a person for membership of Parliament.
The Committee generally applies two tests in deciding whether a member of a body ought to be exempted from disqualification: (1) the emoluments and allowances attached to the members; and (2) the nature and function of the body.
If a member of a body gets only compensatory allowance and the body exercises merely an advisory function, then no disqualification would arise. But if the allowances given are more than compensatory allowance and/or the body exercises executive and financial powers and is in a position to wield influence and patronage, then its membership would not be excluded from disqualification.
In the past, based on the recommendations of the Joint Committee, such exemptions have been made by adding certain offices to the list. For instance, when Pranab Mukherjee became Deputy Chairperson of the Planning Commission under Prime Minister P.V. Narasimha Rao, the office was exempted by adding it to the list in the Parliament (Prevention of Disqualification) Act, 1959.
Since the judicial decisions gave varying interpretations depending upon the facts of each case, the best course appears to be to refer the matter to the Parliamentary Joint Committee to examine the individual cases of the 40-odd MPs. The committee could exempt the offices it thinks would attract disqualification under Article 102(1a) of the Constitution of India. That Parliament is competent to enact a law to remove a disqualification with retrospective effect is settled (See Kanta vs Menak Chandra 1970 SC 694 para 36 and Ibomcha vs Chandranani AIR 1977 SC 682).
Test of appointment
A Constitution Bench of the Supreme Court in Guru Gobind Basu vs Sankari Prasad Ghosal & others (AIR 1964 SC 254) ruled that the decisive test for determining whether a person holds any office of profit under the Government is the test of appointment. There are several factors that enter into the determination of this question such as: appointing authority; the authority vested with the power to terminate the appointment; the authority that determines the remuneration; the source from which the remuneration is paid; the authority vested with the power to control the manner in which the duties of the office are discharged and to give protection on that behalf.
The Supreme Court has further held that it is not necessary that all these factors must co-exist. The court also held that stress on one factor or the other would depend on the facts of each case. In other words, it is only when the Joint Committee scrutinises the composition and character of office held by the 40-odd MPs facing threat of disqualification and gives a report that a comprehensive bill for amending the Parliament (Prevention of Disqualification) Act, 1959, can be brought in.
Since the Election Commission of India (while recommending the disqualification of Jaya Bachchan from the Rajya Sabha) opined that any post, even if held in an advisory capacity, was an office of profit, unless the facts of each case, of the 40-odd MPs, are carefully gone into by the Joint Committee, a comprehensive legislation may not be successful. The opinion of the Law Commission of India on this aspect may also be a guiding factor.
Unlike in India, in England whenever a new office is created, the law also lays down whether it would be an office of profit or not.
(The writer is a Senior Advocate and former Advocate General of Tamil Nadu.)