Office of profit: Pot calling kettle black

Cutting one’s nose to spite one’s face. This adage rang true last week as Arvind Kejriwal's AAP Party got caught in a legal quagmire over the appointment of 21 Parliamentary Secretaries to Ministers on 13th March 2015.

A week later an RTI activist filed an innocuous complaint to President Pranab Mukherjee that under the Delhi Members of Legislative Assembly (Removal of Disqualification) Act 1997 there was no provision of appointing a Parliamentary Secretary to a Minister and they held an Office of Profit.

Last Monday the President rejected the Delhi government’s amendment to the Act which sought to make the position of Parliamentary Secretary in the Delhi Assembly “retrospectively” exempt from the definition of ‘Office of Profit.’

Questionably, is it going to be the end of the road for the 21 AAP MLAs in the office-of-profit controversy? Undeniably, the issue is not legal, but primarily political and Kejriwal should take it head on. The AAP MLAs should resign and seek re-election.

Just as Sonia Gandhi did in 2006 when she resigned from the Lok Sabha and sought re-election, instead of fighting a legal battle on whether her position as Chairperson of National Advisory Council was an office of profit or not

Predictably, Kejriwal decided to brazen it out by asserting his MLAs were not receiving any “pecuniary benefit, office space, car or perks and are working for free” as Parliamentary Secretaries… and are his Government’s “eyes, ears and hands”. Sic.

True, the Assembly was within its powers to bring an amendment to the Act but given Delhi’s special status as a Union Territory, a Bill passed by the Assembly is not considered an applicable “law” unless it is passed by the Delhi Lieutenant Governor and the President of India.

At one level, there is no gainsaying that this outrageous episode is an exercise in political one-upmanship between Modi’s BJP and its bête noire Kejriwal’s AAP. The former drawing blood and the latter battling for political supremacy.

Basically, even as the BJP and the Congress quibble over the ‘extra-judicial appointments,’ the ball is in the Election Commission’s court which has to decide whether the terms and conditions of appointment of Parliamentary Secretaries constitute an “Office of Profit.” Whereby, it can nullify the appointments and call for fresh elections.

According to some Constitutional experts, if what Kejriwal avers is true, then AAP’s Parliamentary Secretaries office were not holding an “Office of Profit” as there is no monetary benefit attached to the appointments. Obversely, if their appointment letters included any monetary benefit, the office would be considered an “Office of Profit.”

Thus, “the offer of pecuniary gain is the test, even if the person declines to take that benefit.” Besides, under Article 102(1)(a) and Article 191(1)(a) of the Constitution, a person shall be disqualified for being chosen as, and for being, a Member of Parliament or of a Legislative Assembly/Council if he holds an “Office of Profit” under the Central or any State Government, other than an office declared not to disqualify its holder by a law passed by the Parliament or State Legislature. The Delhi MLA (Removal of Disqualification) Act, 1997 did not include the post of Parliamentary Secretary as an “exempted post.”

Questionably, is it going to be the end of the road for the 21 AAP MLAs in the office-of-profit controversy? Undeniably, the issue is not legal, but primarily political and Kejriwal should take it head on. The AAP MLAs should resign and seek re-election.

Just as Sonia Gandhi did in 2006 when she resigned from the Lok Sabha and sought re-election, instead of fighting a legal battle on whether her position as Chairperson of National Advisory Council was an office of profit or not.

The Supreme Court too has underscored that the issue was not whether an MP or MLA of an office in question received any remuneration but was potentially in a position to receive some remuneration. The word ‘profit’ connotes the idea of pecuniary gain.

If there is really a gain, its quantum or amount would not be material; but the amount of money receivable by a person in connection with the office he holds may be material in deciding whether the office really carries any profit.

Adding that if the government had the power to appoint and remove a person, then the office is an office of profit even though the person is paid out of the funds of the corporation. On the other hand, if the government does not possess this power, whatever control the government may have over the person` in other matters, would not suffice for the purpose.

Consequently, even from a purely legal/technical point of view, the MLAs are in violation of the norm against legislators holding any office of profit under the government. Interestingly, “office of profit” is not defined anywhere. Courts have been passing judgments wherein a vague pattern has emerged.

The philosophy behind this prohibition is that MPs or MLAs should be free to function independently of the Executive. By accepting an office of profit, theoretically they become subject to pressure by the Executive. Arguably, if nearly half the House becomes part of the Executive, then the business of legislators holding the Executive accountable suffers. Certainly, not a happy state of affairs.

Besides, it does not behove any government to try and overcome the limitation on the size of the Council of Ministers, 10 per cent of the strength of the House by accommodating legislators in a quasi-ministerial position by giving them positions such as Parliamentary Secretaries.

According to Constitutional expert Durga Das Basu, “The principle underlying this disqualification is that there should be no conflict between the duties of a member of the Legislature as such and his private interests and that the indebtedness of a member to government is incompatible with his independence as a representative of the people”

Be that as it may, the moot point is: has the term ‘office of profit or office of no profit’ become another facet of corruption? Has it provided a legal seal to bribery of our Right Honourables through arbitrary fiats declaring offices of profit as non-profit? Enabling MPs and MLA’s to enjoy juicy lollipops of power? Wherein one may not take any salary but enjoy royal perks, more than making up for it? Who needs a salary!

Instances are a plenty at the Centre and the States wherein MPs or MLAs who cannot be accommodated in the Cabinet are compensated by being appointed as Chairmen of various corporations and commissions enjoying the status of Cabinet or Minister of State.

Look at the absurdity. A MP as a member of the Air India board takes no salary but enjoys amazing perks – unlimited first class travel and entertainment. Or, when legislators as members of various Standing Committees get public undertakings to pick up the tab for their five-star hotels, shopping, gifts et al.

The situation is worse in the States. The MLA-Chairmen lord over State Boards and Commissions and merrily convert them into their private fiefdoms of mini-Ministries with full staff and freedom to poke their noses into all deals – buying, selling, price fixing etc.

Clearly, the latest controversy on the Office of Profit saga is a classic case of ‘100 chuhe kha ke billi hajj ko chali’, as this applies to all Parties, BJP, Congress, JD(U) Samajwadi, BSP, RJD, BJD etc. It has spotlighted the recurring abuse by the powers-that-be of its authority to distribute patronage at will by nullifying the basic object of Article 102.

Thus, it is time for the government to desist from appointing legislators to ‘offices of profit’ and merrily promoting legalized corruption. Parliament needs to debate the issue threadbare. Private profit must not be permitted in the name of public service.

By: Poonam I Kaushish