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Office of profit: No law, how SC set the rules

Saturday 18 February 2006, by VENKATARAMAN*R.

NEW DELHI, MARCH 17 : Jaya Bachchan’s disqualification has sent a wave of panic across state governments as they scramble to insulate legislators they have “rehabilitated” in several posts outside the Ministry as chairpersons of this and that. While UP introduced a law and Haryana is ready with one to protect its chosen ones, so far-reaching is the issue-there are already complaints against 44 legislators, from Sonia Gandhi to Somnath Chatterjee-that Parliament may have to step in.

For, an “office of profit” is neither defined in the Constitution nor in any law. Its ambit has to be inferred only from pronouncements of courts and other competent authorities, like the Election Commission and the President.

The record so far:

In 2001, Supreme Court upheld disqualification of JMM leader Shibu Soren for holding an office of profit as chairman of the interim Jharkand Autonomous Council (JAC).

A bench of Chief Justice A S Anand, Justices R C Lahoti and Shivaraj V. Patil, affirmed a verdict of the Patna High Court disqualifying Soren.

Their key argument: Articles 102(1)(a) and Article 191(1)(a) of the Constitution are meant to eliminate or reduce the risk of conflict between duty and interest amongst MLAs/MPs.

Receiving gain or profit from Executive, an MLA/MP may be rendered amenable to influence while discharging his obligations as a legislator.

Article 102(1)(a) of the Constitution says that a person shall be disqualified for being chosen as, and for being, a Member of either House of Parliament:

? If he holds any office of profit under the Govt (Centre or state) other than an office declared by Parliament by law not to disqualify its holder.

? An office of profit need not necessarily confer pecuniary benefit; it is sufficient if it bestows administrative and executive powers.

This was settled in Soren’s as well as Tamil Nadu MP R.Moharanarangam’s case (in the 1980s). Mohanarangam was found to have held an office of profit with all facilities including car, phones, accommodation etc. provided by the state government.

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. However, this has to be enacted as a law by Parliament.

Until that happens, the criteria fixed by the Supreme Court from the very first case on the subject in 1954 (Ravanna Subanna v. G.S. Kaggeerappa, AIR 1954 SC 653) and reiterated through the 1960s till date (Umrao Singh v. Darbara Singh; A.K. Subbaiah v. Ramakrishna Hegde) is the “settled law”. As per these guidelines, an office of profit means when a job:

? Whether Govt exercises control over the appointment and removal from the office and over the performance and functions of the office

? Whether the holder draws any remuneration other than the ?compensatory allowance’ (like conveyance bills, telephone calls, travel expenses etc)

? Whether the body in which office is held, exercises executive, legislative or judicial powers or confers powers of disbursement of funds, allotment of lands, issue of licences, etc. or gives powers of appointment, grant of scholarships

? Whether the job enables the holder to wield influence or power by way of patronage.

If the reply to any of the above criteria is yes, then the holder of office in question incurs disqualification.

This has been followed by the Joint Committee of Houses of Parliament on Offices of Profit which has been set up to examine the composition and character of all Committees.

See online : The Indian Express

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