The charge against 20 AAP Delhi MLAs cannot be sustained, and the President must seek the Supreme Court’s opinion, writes former Lok Sabha secretary general.
Some ill-informed political comments, and remarks by some experts who believe they must have an opinion on everything under the sun, have only obfuscated the real issue on ‘office of profit’ and the disqualification of 20 MLAs of the Delhi assembly. These comments show that some believe that ‘office of profit’ has something to do with corruption.
Under article 102 (1) (a) and 191 (1) (a) of the Constitution, a person who holds an office of profit under the government is disqualified from being chosen as a member of Parliament or state legislative assemblies.
But neither of these articles defines what office of profit is. In fact, there is no law that defines this term. Then how did it find a place in our Constitution?
The concept originated in the House of Commons of the British Parliament in the 16th century. In its early stages of evolution, there were perpetual conflicts between the House and the monarch arising out of an uncompromising assertiveness and independence displayed by the House, which was not acceptable to the monarch. Many members stayed away from the House since they were busy with their executive functions.
A worried House decided to disqualify the members who accepted executive positions under the monarch, and disqualify those holding an executive position in the government from contesting elections to Parliament.
The framers of the Indian Constitution adopted this concept. A legislator is elected to serve the legislature, which demands the service fully and throughout his/her tenure. No allurement of any nature by the executive is permissible.
Though this term has not been defined in law, the decisions of the election tribunals, high courts and Supreme Court have brought considerable clarity into it. Two landmark cases – Guru Gobinda Basu vs Shankari Prasad Ghosal [(1964) AIR 254] and Maulana Abdul Shakoor vs Rikhab Chand [(1958) SCR3A7] laid down the basic conditions to determine if someone is holding an office of profit under the government.
One, the government has the power to appoint a person to an office of profit and continue him/her in that office. Two, the government also has the power to remove them at its discretion. Three, when the payment to the holder of the office is made out of government revenues, many SC decisions have emphasised the aspect of pecuniary gain. If pecuniary gain isn’t present, it isn’t an office of profit.
In Jaya Bachchan’s case, the SC said in 2006 that holding an office under the central or the state government – to which some pay, salary, emoluments, remuneration or non-compensatory allowance is attached – is an office of profit. If the pecuniary gain is receivable in connection with the office, it becomes an office of profit. This was a reiteration of the SC in Divya Prakash vs Kultar Chand Rana [AIR (1975) SC1067] that held that “what is relevant is whether pecuniary gain is receivable in regard to the office and not whether pecuniary is in fact received or received negligibly”.
In U.C. Raman vs P.T.A. Rahim [(2014) 8SCC934-A] by the SC in 2014, the pecuniary gain was reemphasised. Another important point decided in this case is that ‘status’, ‘influence’ etc of an office should not be taken into consideration while deciding the question of office of profit.
According to the information available, it is safe to conclude that the reported opinion sent by the Chief Election Commissioner to the President on Delhi MLAs is not based on hearing the issue on merit.
After the Delhi High Court struck down the appointment of parliamentary secretaries as invalid on the grounds that the Lieutenant Governor of Delhi didn’t sanction these, the issue before the EC has become infructuous. The appointment without the approval of the L-G is no appointment in the eyes of law. The charge of holding an office of profit cannot be sustained.
The EC did not accept this position, and proceeded with the hearing, but no hearing has taken place after the high court’s order till now. In the absence of a hearing on merit, the opinion suffers from serious legal infirmities. The question whether the high court’s striking down of the appointment takes effect from the day of the judgment or the day of the appointment, is purely legal, and can be clarified only by the HC.
The Election Commission is an executive body that also performs a quasi-judicial function. But it has no authority to decide a purely legal issue.
Article 102 (2) makes it obligatory for the President to act according to the EC’s opinion. But should this be followed mechanically, or is it necessary for the President to pause and ascertain the basis of the written complaint?
Under Section 146 of the Representation of the People Act, 1951, the EC has the option to decide on hearing the parties and witnesses in person, and can come to a decision without hearing the parties. But, once it has begun the process of hearing, it is presumed that no opinion can be formed without hearing the parties concerned. It is, therefore, proper for the President to seek an opinion from the SC on the matter U/A 143 (1) of the Constitution before a decision is taken about the disqualification. Such a course of action is perhaps necessary in view of the mandatory provision in article 102 (2).
Now, it would appear that ‘parliamentary secretary’ is neither an office, nor an office of profit. The term ‘office’ has been defined in a large number of cases decided by the SC. In Statesman (Private) Limited vs H.R. Deb [(1968) SCR, 614], it approved the definition of ‘office’ given in an English case Great Western Railway Company vs Vater Rowlatt. In this case, Lord Atkin defined ‘office’ as one which has a subsisting, permanent, substantive position that had an existence independent of the person who filled it, and was filled in succession by successive holders.
The parliamentary secretary is not an office because there is no permanence to it, and it is not independent of the holder.
As per the terms of appointment, the post doesn’t carry any pay, emolument, honorarium or any kind of perks. Conveyance allowance, house rent allowance, travelling allowance are all ingredients of compensatory allowances not constituting profit. If the holder of an office gets a vehicle for official duty in lieu of travel allowance, it cannot be regarded as profit. Similarly, if the holder gets office space, it can by no stretch of imagination be called profit.
P.D.T. Achary is former secretary general, Lok Sabha
Worthy PRESIDENT need to have opinion from S. C. and Thanks for it!
This article involves deliberate misinterpretation of ratios of Supreme Court decisions. Proof of pudding is in eating. Let the High Court and the Supreme Court interpret the law, then everything will become clear. The apologists for AAP’s misadventures like the author will have to shut up then.
It’s silly to say that the President should seek a reference from the SC. Our President has no such right or obligation. He/she has to act according to the recommendation of the Cabinet. Mr. Achary may be a legal authority, but he – and many others who appeal to the President to do this or that – forget that the Constitution intended the President to be a figurehead, not an energetic executive.
So, what should the MLAs do?
The decision of the EC if, of course, subject to adjudication. That’s what should be the subject of a legal process, which the disqualified MLAs must initiate (and already have). If the outcome of that process is that the EC is wrong, the disqualification recommendation and the acceptance of it by the President are automatically void as well.
The SC can also use the process to clarify what does and doesn’t qualify as an office of profit under the Constitution’s definition of the term.
From Accounting Point of View, an “Office of Profit” is that which involves “Monetary Gains” for the subject who is charged to have held an office of Profit while being an elected Member of Parliament or any State Legislature. Any facilities availed to perform duty do not form an “Office of Profit” as such facility/ies do not give him any personal benefits or gains in terms of Money.
Vinod Rai is a Jyotishi he knows what is in others head and mind. But he doesn’t known his fate after BJP’s demise from centre
A well-written article by a person with legal background and sufficient exposure to parliamentary activities and procedure. The legal infirmities disregarded by the E.C. in framing the case against AAP MLAs and overlooking of the discrepancies by President’s Office will obviously go in favour of AAP govt.