ISSN (Print) - 0012-9976 | ISSN (Online) - 2349-8846

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Loaves of Office

ECONOMIC AND POLITICAL WEEKLY Loaves of Office Members of Parliament have an opportunity to redeem themselves in the public eye when the two houses reconvene next week to discuss the office of profit issue. The unseemly manner in which the budget session was hastily adjourned at the end of March, the related and fortunately aborted attempt by the United Progressive Alliance government to issue an ordinance that would have protected Congress Party president Sonia Gandhi from possible disqualification and the alarm that almost all political parties expressed about the likely threat to many of their MPs, showed the legislature and the executive at their worst. A legislator stands outside the executive and it is therefore necessary that she does not occupy a position that could make her indebted to the executive and create a conflict of interest. While this is the basic principle underlying the constitutional bar on legislators holding an office of profit, such an office does not have to be one that provides a regular salary. If the holder of an office can exercise executive powers, take decisions on distribution of government funds and confer patronage, then that is clearly an office of profit. The principles are clear enough but if yet there is ambiguity, it is because there is no clear definition in law or practice. Article 102(1) of the Constitution prohibits an elected representative from holding an office of profit, but does not define what such an office is. There is also no law which specifies the criteria of such an office. The Prevention of Disqualification Act of 1959 only lists the offices that do not disqualify the holders from membership of Parliament

May 6, 2006 ECONOMIC AND POLITICAL WEEKLY
Loaves of Office Members of Parliament have an opportunity to redeem themselves in the public eye when the two houses reconvene next week to discuss the office of profit issue. The unseemly manner in which the budget session was hastily adjourned at the end of March, the related and fortunately aborted attempt by the United Progressive Alliance government to issue an ordinance that would have protected Congress Party president Sonia Gandhi from possible disqualification and the alarm that almost all political parties expressed about the likely threat to many of their MPs, showed the legislature and the executive at their worst. A legislator stands outside the executive and it is therefore necessary that she does not occupy a position that could make her indebted to the executive and create a conflict of interest. While this is the basic principle underlying the constitutional bar on legislators holding an office of profit, such an office does not have to be one that provides a regular salary. If the holder of an office can exercise executive powers, take decisions on distribution of government funds and confer patronage, then that is clearly an office of profit. The principles are clear enough but if yet there is ambiguity, it is because there is no clear definition in law or practice. Article 102(1) of the Constitution prohibits an elected representative from holding an office of profit, but does not define what such an office is. There is also no law which specifies the criteria of such an office. The Prevention of Disqualification Act of 1959 only lists the offices that do not disqualify the holders from membership of Parliament – any office not on the list is therefore open to interpretation as is the case now with the flood of complaints which have been forwarded by the president to the Election Commission. There is a joint parliamentary committee that examines the issue whenever a particular case is referred to it, but its findings do not exempt MPs who hold office from being questioned, unless the 1959 Act is suitably amended to include such positions. The Supreme Court has laid down some principles when cases have been brought before it. These principles are that there should be no conflict of interest between a legislator’s duty and the demands of the office, and that there should be no remuneration over and above the expenses for discharging the duties of the office. But once again such broad principles do not eliminate the possibility of dispute when MPs and MLAs are appointed to a variety of offices. However, the fundamental problem lies elsewhere. Positions in government bodies and quasi-state bodies have become compensation for legislators who cannot be accommodated as ministers. The practice has grown to monstrous proportions as governments have become dependent on a number of parties, all of whose representatives cannot be accommodated in ministerial positions and are therefore appointed as chairpersons of public sector units and commissions. (Is it any wonder that the government in Jharkhand, which enjoys a waferthin majority in the assembly, is worried about the ruling by the Election Commission on complaints against more than 20 MLAs for holding offices of profit?) The practice of legislators holding positions in the executive has also grown with such offices being seen as a right of the elected representatives. This has gone hand in hand with the representatives demanding a greater say in administration. Hence, all said and done, the only honest way of tackling this issue is for the legislators to recognise that the problem is more of their making than of any ambiguity in the law. There certainly is a case for legislation that clearly lays down the criteria of what constitutes an office of profit. One option, as has been suggested by legal experts, is to follow the British practice: when a new law creates a new office, the legislation should specify whether or not it is an office of profit. But this will require an end to the practice of creating positions by executive action and for legislators to accept that quasi-government offices are neither theirs by right nor theirs for the asking. Can we hope that Parliament will take such a position next week? EPW

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