Rethinking the ‘Office of Profit’ disqualification

More than often do we now hear about different governments in the country- both at Central and state level creating ‘office of profit,’ which is then mostly succeeded by a harsh judicial response of striking down such appointments. Such was the case most recently in the States of West Bengal, Telangana, Assam among others. Using the nomenclature of ‘parliamentary secretary’, there are numerous offices of profit created in several states like Gujarat and Punjab, including 23 in Arunanchal, where BJP is the ruling party. Latterly, the news that has been doing rounds is the disqualification of 20 MLAs of the Aam Admi Party (AAP) from the Delhi Legislative Assembly. The vexed issue of ‘office of profit’ therefore calls for an examination of its underlying principles and its relevance in the Indian concept of separation of powers. To what extent has the purpose with which this provision for disqualification was incorporated in the constitution been fulfilled? 

Tracing back, the provision for disqualification on account of holding office of profit started in England through the Act of Settlement, 1701. The legislators appointed as ministers thereafter lost their right to sit as members in the House of Commons until as recently as 1919. The law was clear that judges, civil servants, members of armed forces, or spiritual or religious leaders, are barred from holding membership of the House of Commons. Similarly, In the US, the Constitution under Article 1, Section 6, Clause 2 has expressly laid down that ‘no senator or representative shall, during the time for which he was elected, be appointed to any civil office under the authority of United States, which shall be created or the emoluments whereof shall have been increased during such time and no person holding any office under the United States, shall be a member of either house during the continuance in office’. These debarments have a peculiar rationale applicable to the specific and unique political context of these nations. The question is if the same is applicable to the Indian context? 

In India, the foundation of ‘office of profit’ disqualification is rooted in Article 102 and Article 191 of the constitution.  Article 102 (1) (a) provides, “[a] person shall be disqualified for being chosen as, and for being, a member of either House of Parliament (a) 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”. However, the parliament or state assemblies can by law exempt any office from disqualification. Hence, a wide discretionary power has been conferred on the parliament and the state assemblies, which has been exercised on multiple occasions to exempt numerous posts. Several posts like Chief Whip, Leader of Opposition, Chairman of Planning Commission, Chairman of Minorities Commission, and Chairman of Women Commission, West Bengal Industrial Development Corporation, Haj Committee among others have been excluded from the purview of operation of these laws. Strikingly, there is neither any express policy to exercise the power to exempt nor any pattern that can be inferred from the exercise of powers by the legislature thus far.

 The judicial response while adjudicating the cases in this regard has been ‘consistently inconsistent’. In several occasions the Supreme Court has said that if salary or benefit is not being drawn and only compensatory allowance is being taken, then the membership cannot be taken away, however, there are also cases where the Court has held otherwise. In the Sibhu Soren case the court took the view that irrespective of nomenclature (‘honorarium’ in this case), it will be regarded as profit’ if any pecuniary benefit is being derived. However, in the case of Jaya Bachchan, the Court was of the view that it is of no significance whether the person received or did not receive payment. It is enough to attract disqualification under the ‘office of profit’ provision If some payment was payable. Juxtaposing this with Kerala Haj Committee Case, the Court has held that accepting TA&DA would not lead to disqualification.

Before going to the principles behind these provisions, a pragmatic reasoning for creation of these offices needs to be considered. To take an example, in the case of AAP, it was able to secure majority in the Delhi Legislative Assembly. The 91st Amendment to the Constitution allows the Council of Ministers to be not more than 15% of the total members in the Assembly. In such scenario, the ruling party is faced with a serious challenge to accommodate and engage the MLAs in some way in the government as not everyone can be appointed as ministers. Therefore, offices like ‘parliamentary secretaries’, ‘chairmanship of boards and committees’ and similar other offices are created to engage the MLAs without breaching the upper limit imposed by the Amendment. The ruling party is often compelled to do so due to the threat of defection and collapse of government, especially when the government is formed with a marginal majority.

The principle behind this rule of disqualification is predicated upon the idea of separation of powers; the people who make the laws should be independent of the government. The assumption is that he who is a beneficiary of perks emoluments generated from holding office in the government would not be able to have independent views about the government and perform the role of ‘check and balance’ effectively. This assumption might be true from the perspective of governance. But unlike in the Presidential form of government, this idea of separation of powers is virtually inexistent in the Indian system of government. In a parliamentary democracy like India, a person cannot hold the position of minister, prime minister, unless he is a member of the legislature. When the party having majority in the floor forms the government, there is little or no scope of members of parliament being independent from the government. Logically as well, the ruling party would not create a position or any ‘office of profit’ for a member of the opposition. Therefore, the argument regarding impediment in ‘check and balance’ mechanism, and hindrance in giving independent criticism towards the government by virtue of holding ‘office of profit’ is misplaced in the parliamentary democracy as it is too unrealistic to expect members of the ruling party to speak against their own party.  A member from the ruling party in the legislature would not confront the Prime Minister or Chief Minister belonging to his own party. An important inference: the idea that the legislature would control the government is inapplicable in parliamentary democracy; it is the government that controls the parliament.  The practice of usually the government-sponsored bill getting passed as opposed to private-member bill further fortifies this claim.

The AAP fiasco has provided us the opportunity to ponder upon these overarching questions about the need of ‘office of profit’ disqualification. We need to either rethink the concept, or even better, work towards abolishing it altogether.  

Faizan Mustafa is the Vice Chancellor of NALSAR University of Law, Hyderabad. The contents of this post first appeared in a video published on NALSAR’s YouTube Channel. It has been converted into a transcript by Hardik Subedi, a third-year Law student at NALSAR. 


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