Debating India


Ms. Bachchan and offices of profit

Wednesday 8 March 2006

The principle that legislators should not become amenable to the influence of the executive while discharging their duties is enshrined in the Constitution. The objective of Articles 102 (1) and 191 (1) - which prohibit MPs and MLAs from holding any "office of profit" under the Government of India or that of any State - is to ensure that legislators do not come under the obligation of the executive through receiving pecuniary or other benefit from it. Given this, the Election Commission’s decision to recommend the disqualification of Bollywood actor and Samajwadi Rajya Sabha MP, Jaya Bachchan, cannot be faulted. Ms. Bachchan is the chairperson of the Uttar Pradesh Film Development Council, a position she was appointed to after she got elected to the Rajya Sabha. Her contention that the UPFDC post is not an office of profit as she received no salary may, on the face of it, have a right-minded ring. But it is legally unsustainable. An office of profit need not necessarily confer pecuniary benefit; it is sufficient if it bestows administrative and executive powers on the person who holds it. Ms. Bachchan’s disqualification has focussed attention on the phenomenon of legislators holding other posts, which may be offices of profit. Already, the Samajwadi Party General Secretary and Rajya Sabha MP, Amar Singh, is under the Election Commission’s scrutiny over his appointment as chairman of the Uttar Pradesh Development Council. On its part, the S.P., which has portrayed Ms. Bachchan’s disqualification as a political conspiracy, has raised questions over the status of some Congress legislators, including Sonia Gandhi, who hold public positions.

There is a larger issue here, one that goes well beyond the political bickering. It relates to the definition of an "office of profit" - a term that has not been spelt out in the Constitution. At the same time, the Constitution empowers Parliament and State legislatures to declare particular posts as not falling under the category of office of profit. The Parliament (Prevention of Disqualification) Act, 1959, lists the offices whose occupants will not attract disqualification. Similarly, States have passed their own laws enumerating posts that do not invite disqualification - a state of affairs that has contributed to the confusion and sharpened disputes about what exactly an office of profit is. It was against this background that the National Commission to Review the Working of the Constitution recommended that the Constitution should be suitably amended to empower the Election Commission to identify which offices should be deemed to be offices of profit and which not. The recommendation may not be acceptable to Parliament, but the point behind it must not be ignored. It is that the country needs a clear and rational set of parameters to determine what is an office of profit.

See online : The Hindu

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