Office of Profit law, a constitutional travesty

When dysfunctional laws like the Prevention of Corruption Act and the Office of Profit law congregate to create a slothful and dysfunctional State, the hope of developmental politics evaporates. And when these dysfunctional laws are misused by those who came to power by propagandising high morality and clean politics, it shakes the confidence of the people. This is precisely what happened when the Election Commission recommended to the President the disqualification of 20 AAP MLAs for holding an office of profit as parliamentary secretaries.

The post of a parliamentary secretary, which is equal in rank to that of a cabinet minister, is an apolitical device used by ruling parties both at Centre and states to mollify their dissident MPs and MLAs. Arvind Kejriwal too used, or rather misused, this political device to gratify his 21 MLAs, despite his pledge of clean politics. The ruckus over these appointments started when former President Pranab Mukherjee declined to sign a Bill passed by the Delhi Assembly to exempt the post of parliamentary secretary from the purview of the office of profit with retrospective effect.

The President referred the matter to the Election Commission as the Constitution vests in him the power to disqualify legislators an office of profit on the recommendation of the Election Commission. Once the recommendation is given, disqualification is inevitable, as has happened in the case of the AAP legislators. Resignation of the membership of the House or from the said office of profit or the fact that High Court has already annulled these appointments cannot absolve a member of the offence of accepting and holding such an office.

The concept was evolved in England to preserve the independence of the legislature by keeping its members away from any governmental temptation. The Constitution provides that a person shall be disqualified from being, or being chosen as, a member of legislature 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 to not disqualify its holder. Governments had in the past retrospectively exempted many offices from the purview of this Article for their political convenience. But, neither the Constitution nor the Representation of the People Act, 1951, defined the expression "office of profit" and hence, it leaves space for courts to explain the meaning and implication of this concept.

Governments across the country habitually create new bodies or offices and therefore the question whether the membership of these bodies or offices would result in disqualification has been a matter of persistent review. Several joint committees have been constituted on this issue which have largely applied twin tests in determining whether a particular membership of an office or body ought to be exempted from disqualification: one, the emoluments and allowances attached to the members; and two, the nature and function of the body.

The interpretation offered by the Supreme Court has decrypted two essential ingredients: first; there should be an office; and second, the office should carry some profit (Kanta Kathuria vs Manak Chand, 1970, and Ibomcha vs Chandranani AIR, 1977). The office must have an existence independent of the persons who filled it and must have gone on to be filled by successive holders.

The word 'profit' has always been treated as equivalent to the term 'pecuniary gain'. The principle that an "office" should have "receivables" attached to it for it to qualify as an office of profit has been upheld in many other cases. Other factors, namely, appointing authority; authority to terminate; authority that determines the remuneration and its source; and authority to control the manner of discharging the duties may also be relevant.

Nevertheless, it is established that the office of parliamentary secretary is an independent office and involves some pecuniary benefit in the form of official space, vehicle, office staff, accommodation, electronic devices, travelling allowance, etc. Yet, power eventually rests with the government to exempt any office with any pecuniary benefit attached to it. In the past, governments have retroactively enacted self-serving legislation that protected their members from disqualification, but Arvind Kejriwal failed in his endeavour to do so because of his hostile relationship with the Union government.

Arbitrary law

The office of profit law is ex facie arbitrary and profoundly an infringement of Article 14 of the Constitution because it licenses selection and hostile treatment. Although it is unquestionable that equal protection of the laws cannot mean that all laws must be quite general in their character and application.

A legislature must have the power of making special laws to attain specific objects and must, for that purpose, possess the power of distinguishing and classifying the persons/things to be brought under the operation of such laws, provided the basis of such classification has a rational nexus with the object the legislature has in view. But office of profit law failed to provide any basis for classification of the offices which may be exempted. It left it to the unrestrained discretion of governments to choose or to create any office which they liked to be exempted from the law.

A law that entirely depends on the whim and fancy of a government, a law that cannot prohibit a legislator like Navjot Sidhu from a private engagement, a law that allows an MP/MLA/minister to become a director of a public limited company in lieu of an attractive salary, and a law that closes eyes to the practice of legislators appearing as lawyers in court and earning hefty amounts does not qualify as a judicious law. Then, it would be more honest to abolish the office of profit law altogether, rather than amend it into such anaemic shape that it becomes a non-law.

(The writer is Associate Professor of Law, NLU Odisha, and Deputy Registrar, Supreme Court of India)