Article 102(1)(a) of the Constitution of India recognizes “holding an office of profit under the government” a ground for disqualification from being a Member of Parliament (MP) as well as contesting parliamentary elections to be chosen as an MP. The objective of Article 102(1)(a) is to ensure that the representatives of the people discharge their assigned functions without fear or favor from the executive. In order to avoid a conflict between the primary duties of an elected member and the Parliament, the provisions of the Article stipulate that Members of Parliament who hold an “office of profit” must be disqualified.
Before proceeding further, it is essential that the meaning of “office of profit” be understood. An office is deemed to be an office of profit if it is capable of yielding an emolument, remuneration, profit or pecuniary gain, regardless of whether the person exercises that ability in order to actually obtain the profit or not. This was explained in the case of Jaya Bachchan v Union of India, wherein the Supreme Court ruled that the criteria of “holding an office of profit” will be satisfied when any form of emoluments, remuneration or salary is appended to an office under the Central/State government. As is elucidated in the case, the understanding of whether a member does hold an ‘office of profit’ is a subject matter of interpretation. However, this interpretation must be made in a realistic manner. The use of the word ‘honorarium’ to imply that no residential, medical or reimbursing benefits are ever actually received despite their availability is an argument not accepted under the ambit of Article 102(1)(a). As long as the pecuniary gain” is “receivable” in connection with the office, it becomes an office of profit, irrespective of whether such pecuniary gain is actually received or not. This decision is taken by the President and his decision is uncontested and final. The decision-making process, however, is supplemented by the opinions of the Election Commission which the President is bound to follow. The advice of the Council of Ministers is not taken into consideration to this effect.
Another popular instance of disqualification is that of Sonia Gandhi which brewed controversy amongst various political parties and leaders of India. It was famously called the “second renunciation”, for it was the second time in about two years that she was forsaking her power at the behest of the distressed party workers. On one hand where the Telugu Desam Party president N. Chandrababu Naidu believed that Sonia Gandhi had no other option but to resign, the JD(U) and the Maharashtra Congress leaders welcomed the decision and backed it thoroughly. Further, once declared disqualified, the MP from that very instance holds a non-exempt office of profit which means that under no circumstances is the order passed for disqualification exempted or reversed by the Parliament. The MP is labeled as holding an office of profit even before the final disqualification actually takes place. An ‘intervening time gap’ shall not be acknowledged or encouraged between the holding of an office of profit and his disqualification from the office on the same grounds. It must not be assumed that during the time gap between the announcement of disqualification of the MP and the execution of the disqualification, the Parliament is free to reverse the order of disqualification through legislation. This is solely because any constitutional provision shall always prevail over a parliamentary legislation. According to the provisions of the Constitution, such a disqualification is irrevocable and binding, violation of which would mean derogation of the constitutional norm over a legislative norm.
Who holds the authority to make such a choice for the members? A Joint Committee, consisting of some members from the Rajya Sabha and Lok Sabha, has been composed in order to regulate the question of which bodies would be a disqualification for membership of the Parliament. This is a matter requiring regular assessment, and for this, the function of the committee is to assume a continuous examination of the composition and character of various government appointed bodies and account to both the houses as to which must be disqualified from membership to the Parliament.
The question that arises next is- on what basis does the Committee decide whether to execute the disqualification of members or not? The answer lies in the amount and kind of emoluments and allowances. If the member of an advisory body only gets a regular salary, the disqualification is not attracted. On the other hand, in cases where the member belongs to an executive and financial body that can exert power and influence, the disqualification is attracted. Hence, the nature and function of the body that the member is a part of also plays a consequential role in determining the competency of a person to be a member of the Parliament.
As has been mentioned before, in certain cases, after evaluation of facts and circumstances, the President might decide that the disqualification of an MP will not be necessary due to the facts and reasoning of that particular case. For such instances, the Legislature had enacted the Parliament (Prevention of Disqualification) Act, 1950, 1951 and 1953 which specifically exempted certain posts from being disqualified despite holding a record for holding an office of profit. All such acts were consolidated and replaced finally by the Parliament (Prevention of Disqualification) Act, 1959. Also, the Parliament (Prevention of Disqualification) Amendment Act, 2006 that allowed the Parliament to validly exempt the offices of profit until the President came to a decision on the disqualification of the Members of Parliament has pervasive repercussions. Such a doing would effectively mean disregarding a given constitutional provision, for the exercise of the power will theoretically rest with the President under Article 103, however, in practice, be governed at the instance of the Parliament. Also, effectively, this would mean that no member of the government will ever get disqualified and that would be a serious transgression of Article 102(1)(a) and Article 103 of the Constitution of India, which is not a desirable outcome with respect to the present political circumstances.
Analyzing the above facts and arguments, my opinion revolves around seeking an answer to the question of whether the issue of ‘office of profit’ is really worth expending a substantial amount of literature on. The rather amusing panic caused among the politicians regarding the scope of the amendment to the law is indicative of how they seem to have forgotten that their foremost duty is to serve the very people who have elected them to function as full time representatives. However, paying heed to the matter at hand, the failure of Members of Parliament to regard and duly follow the norms of membership to the Parliament got unwittingly exposed when it came to the fore that the provisions of the Constitution have been continually violated all these years, until only Jaya Bachchan, a well known personality, got disqualified at the behest of the Congress. To elucidate the profit-making tactics of the Members of Parliament further, the illustration of the MPLADS and cash-for-query scam that are indicative of contemporary Indian politics revolving around power and undue influence should suffice. The underlying purpose of this article is to prompt one to ponder about the differences in the rights of the Parliament and the President to govern the rules of membership to the Parliament. The suggestion this article seeks to give is that any provision in the Constitution of India will stand over and above any other law, rule or Parliamentary legislation of our country. No member of the Parliament can hold an office of profit, as is defined under Article 102(1)(a), the violation of which will be a clear sign of disqualification from the Parliament. The President has a superior discretion in terms of exempting the disqualification and the Parliament does not hold the authority to reverse that decision through legislation. Based on the aforementioned original law and the subsequent amendment, what the chief concern should be is to exercise the disqualification of the MPs in a non-discriminatory manner and award the same liabilities to every member who holds an office of profit. Since the developments regarding this topic are fairly recent, it will be interesting to note the different kinds of intricacies that shall arise in the newer cases in due course of time. Eventually, a comparative study of numerous cases of disqualification of MPs before and after the amendment will draw a detailed analysis of the relationship between the Parliament and Constitution of India that is guiding the current political system in our country.
This post has been authored by Saasha Malpani, a second year student at the West Bengal National University of Juridical Sciences and a member of the NUJS Constitutional Law Society.