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HomeOpinionThere are better, clearer ways to assess office-of-profit issue, but jettisoning process...

There are better, clearer ways to assess office-of-profit issue, but jettisoning process isn’t one

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Though the idea behind the disqualification is simple enough, what counts as an ‘office of profit’ is a contentious and complex matter.

The extraordinary responsibilities placed on India’s parliament and state legislatures are created alongside rules that carefully set out the membership of these institutions. The qualifications and disqualifications for membership are delineated in the Constitution and the Representation of the People Act, 1951. Over time, these rules have been a source of legal development and controversy. In 2003, for example, the qualifications in the Act were amended to hold that members of the Rajya Sabha need not belong to the states that they represent, thereby diluting the relationship between a member and his/her state.

Among the most important disqualifications for membership is that members of parliament and states legislatures are barred from holding “any office of profit under the government of India or the government of any state”, except an office that has been “declared by parliament [or a state legislature] by law not to disqualify its holder”.

The rationale behind the “office of profit” prohibition is a simple one: the task of law-making demands that legislators be free from executive influence. The task of law-making is distinct from the task of law-application, and the core responsibility of the legislature is to scrutinise the executive. For this reason, legislative independence is a central feature of popular representative institutions.

Though the idea behind the disqualification is simple enough, what counts as an “office of profit” is a contentious and complex matter. In judging offices of profit, the Supreme Court has resisted simple financial tests, and instead adopted a more broad-ranging inquiry to assess whether the compensation awarded, other benefits received, the processes of appointment and removal, etc. would place the office holder under executive influence.

The “office of profit” question recently resurfaced with the Election Commission’s disqualification of 20 AAP members from the Delhi legislative assembly. The disqualification was based on their posts as parliamentary secretaries to the ministers in the government of NCT of Delhi. The question here, however, was not the merits of the decision but rather the Election Commission’s path at reaching it. In an extremely careful and reasoned opinion, the Delhi High Court set aside the disqualification.

A perusal of the facts revealed that the petitioners had not been given basic opportunities to be part of a hearing and present their case. Moreover, they had not been informed of changes in the composition of the Election Commission’s panel hearing their case, including when a member who recused himself chose to rejoin the proceedings.

The Election Commission’s handling of the matter, the Delhi High Court revealed, contained failures that were both elementary and serious. The Election Commission’s suggestion that its proceedings were not quasi-judicial in nature was, the court rightly found, without basis.

The commission operates as a civil court in matters such as this, and even though it has considerable flexibility in determining matters of procedure, the court correctly noted that the procedure that it adopts must be fair and reasonable. The freedom to establish rules of procedure cannot, after all, be the freedom to have no procedure at all. And courts would have a role in ensuring that basic fairness is maintained regardless of the specific procedure involved. There may be instances, the court found, where the commission might decide matters without hearing parties. But such cases would be those that dismiss rather than confirm complaints. To decide against someone without hearing them would, in other words, be impermissible.

Given these facts, the high court remanded the matter back to the Election Commission. It exercised restraint in refusing to comment on the merits of the case but underlined that even a bare study of legal doctrine shows that the question is a complex one, and hardly one that can be decided without hearing the parties involved.

AAP’s victory is important for the political party. Regardless of whether we support the party, the struggles that it has faced in running a government after winning an election are unfortunate in a democracy. There are important reasons for the “office of profit” disqualification, and over time the disqualification has been undermined in noticeable ways.

As M.R. Madhavan has argued, the exempted offices have grown freely, appealing to no clear principle. Perhaps there are also better, clearer way to assess offices that have not been exempted. But concerns relating to the undermining of “office of profit” disqualification, the court reminded us, are hardly served by jettisoning the most basic rules of process.

Madhav Khosla, co-editor of the Oxford Handbook of the Indian Constitution, is a Junior Fellow at the Harvard Society of Fellows. His Twitter handle is @M_Khosla

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