New Delhi: Ten years after a parliamentary committee began deliberating on what construes an ‘office of profit’ for legislators, the Union Ministry of Law and Justice Wednesday told Parliament’s Joint Committee on Office of Profit that defining an ‘office of profit’ is not a “good idea”, ThePrint has learnt.
At present, the Parliament (Prevention of Disqualification) Act, 1959, which bars an MP, MLA or an MLC from holding any office of profit under the central or state government unless it is exempted, does not clearly define what constitutes an office of profit.
Legislators can face disqualification for holding such positions, which bring them financial or other benefits.
The law ministry was making an oral submission on the draft bill prepared by it to amend the Constitution and define the expression ‘Office of Profit.’
Citing opinions of various legal luminaries such as Fali S. Nariman, K.K. Venugopal and Harish Salve, the secretaries of the Department of Legal Affairs and the Legislative department said all of them have opined against defining it as it could be challenged.
“The top officials of the law ministry said legal luminaries were of the view that defining a office of profit could tomorrow lead to filing of a number of cases with the Election Commission of India and the courts,” an MP who attended the meeting told ThePrint.
“Also, once the definition is changed, one will also have to amend various provisions in the Constitution including Article 102 (1) (a) and Article 109 (1) (a) that deal with office of profit. It will have an overarching effect on all the other sections of the Constitution,” the MP quoted a member as saying.
The two articles bar a person from holding an office of profit under the Government of India or the government of any state. It also protects an MP, MLA or MLC holding such an office from disqualification if it has been exempted by law.
The committee told the ministry to submit the views of all the states as well as 65 ministries that have either concurred or opposed the draft bill.
“The law ministry had circulated the draft bill to states and various ministries inviting their comments and suggestions in February 2019,” the MP said. “The ministry has not shared the views of the states as well as the other ministries with the parliamentary committee.”
Need for time-bound disposal of such cases
The JPC also told law ministry officials that there should be a time-bound disposal of cases pertaining to the ‘office of profit’ that are referred to it.
The JPC made the observation following the oral deposition made by the Department of Legal Affairs secretary and the Legislative department secretary pertaining to the nomination of members of Lok Sabha from Rajasthan to the state’s district planning committees.
“The case dates back to 2016 when the then Rajasthan government wanted to appoint four Lok Sabha MPs from the state to the district planning committees for a term of five years,” the MP quoted above said. “The Rajasthan governor had sought the JPC’s view on whether the appointments will attract disqualification. At that time, the Department of Legal Affairs and the Legislative Department had given differing views. The matter has been pending since then.”
At Wednesday’s meeting, both the departments under the law ministry said appointing MPs to the district planning committees does not construe office of profit.
“While telling the ministry to give one consolidated view on the matter in writing, the committee observed that by the time they give their opinion, the five-year term of the district planning committee will be over,” the MP quoted a member as saying. “Besides, the state government that had originally wanted to appoint the MPs has also changed.”
The members also observed that unless such cases are disposed of in a time-bound manner, the committee won’t be able to do justice in such matters.
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