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President has no option but to accept EC opinion in Jaya Bachchan case, say legal experts

Wednesday 8 March 2006, by VENKATESAN*J.

New Delhi: Legal and constitutional experts are unanimous that President A.P.J. Abdul Kalam has no option except other than accepting the Election Commission’s recommendation for disqualification of Samajwadi Party member of Parliament Jaya Bachchan for holding an "office of profit" as Uttar Pradesh Film Development Corporation Chairperson.

Legal experts say that in common parlance, "office of profit" means an office or position in a government body, which brings to the holder some pecuniary gain or advantage or benefit. It will be an office of profit if it carries some remuneration, pecuniary advantage, benefit, etc. The amount of profit is immaterial.

The Parliament (Prevention of Disqualification) Act, 1959 mentions various offices, which will not be treated as positions of profit. If the holder of any office comes under these exceptions, he or she will not attract disqualification.

Similarly, several State legislatures have clearly defined offices which a member can hold.

Says senior advocate P.P. Rao: "The law is very clear. Under Article 103 (2), the President has to accept the opinion of the Election Commission and act accordingly." To attract the definition of `office of profit,’ one must hold office at the pleasure of the Government and draw salary from the exchequer.

Asked whether disqualification would be attracted even if one drew only an honorarium and enjoyed perquisites, Mr. Rao said drawing perquisites and facilities attached to the office would attract disqualification.

(According to Article 102(1) (a), a person shall be disqualified from being chosen, and for being, member of either House of Parliament 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 as not disqualifying the holder.)

Constitutional expert and senior advocate K.K. Venugopal, without going into the merits of the case, says if a person draws only a compensatory allowance or travelling allowance, he or she will not attract disqualification. But if the office entitles a person to a salary, then irrespective whether the salary is drawn or not, disqualification will result.

Asked whether the President was bound to accept the EC’s recommendation, Mr. Venugopal said he had no discretion in these matters. He was bound to accept and act on the opinion of the Commission.

Senior advocate C.S. Vaidyanathan also says the President is bound to accept its opinion in Ms. Bachchan’s case. But the President’s decision is subject to judicial review and she can challenge it in court.

Asked about the allegation that Congress president Sonia Gandhi was also holding an office of profit as Chairperson of the National Advisory Council and enjoying Cabinet rank, Mr. Vaidyanathan said her status had the ingredients of an office of profit. But if this office was included under the Parliament (Prevention of Disqualification) Act, there would be no disqualification. According to sources in the Government, the post has already been included under this Act and hence she will not attract disqualification.

See online : The Hindu

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