Office Politics

And what do they interpret? For one, Article 102 of the Constitution, which says government offices of profit8212;that is, jobs that the government can create or offer8212;cannot be second jobs for MPs since they could impact his impartiality.

That8217;s straight enough. The catch is that the same Article provides an escape clause, as it were: It allows Parliament and state legislatures to decide their own respective exemptions. That is, they can decide which posts are 8216;offices of profit8217;. And which are not.

OVER the past 50-odd years, both Parliament and state legislatures have used the loophole to their own advantage. As former Chief Justice of India V N Khare says, 8216;8216;Since the number of ministers should be limited to 15 per cent of the legislature, disgruntled elements have to be pacified with some loaves of office.8217;8217;

Read that as chairmanships of boards and corporations, often complete with cabinet rank, official bungalow, travel and phone allowance et al.

Historically, the heads of such boards and corporations were to be experts in related fields. In theory, it8217;s a worthy premise: For instance, who better to lead an farm corporation than an agriculture expert? But in India, the principle is observed largely in violation, in spirit, if not in letter. Jaya Bachchan, for instance, was chairperson of the Uttar Pradesh Film Development Corporation, but there is little happening by way of cinema in the state.

She wasn8217;t the only one, of course; nor was UP the first state to exempt the post she occupied from its 8216;office-of-profit8217; list with retrospective effect. Back in 1990, a similar drama played out in the Centre. On a petition by Janata Dal president Subramanian Swamy, then Karnataka chief minister and deputy chairman of the Planning Commission Ramakrishna Hegde was disqualified on grounds of holding an office of profit. Subsequently, Parliament amended the Parliament Prevention of Disqualification Act, 1959, to include the post of deputy chairman of the Planning Commission in the 8216;exempted8217; list.

THE 8216;office8217;, though, is only part of the problem. The second part8212;8216;of profit8217;8212;is as nebulous. As Subhash Khare, former secretary-general of the Lok Sabha, pointed out in The Indian Express last week, profit is not limited to remuneration in cash, but can extend to mean some kind of advantage or gain.

Moreover, the profit need not be appropriated to be deemed grounds for disqualification: Just the fact that he may gain from the office is enough for him to lose his membership.

The gold standard in this question continues to be the Supreme Court judgment in the 1954 Revanna vs Subbanna case Revanna filed a case against Subbanna, accusing him of occupying an office of profit alongside his seat in the legislature. The Court held that a positive answer to any of these questions would indicate that the office in question was an office of profit:
raquo; Does the government exercise control over the office, appointment and removal?
raquo; Does the officer receive salary and remunerations except reimbursement of actual expenses?
raquo; Can the officer disburse money, land and curry favour with employment?
raquo; Can the officer offer patronage in any other manner?

8216;8216;THE only way to curb this menace is to amend the Constitution itself to declare that an MP will not hold any office other than that of a minister,8217;8217; says Justice Khare.

Another retired Justice concurs. 8216;8216;It is high time, in the sixtieth year of independence, to honour the one-man, one-post principle,8217;8217; he told The Sunday Express on condition of anonymity.

In the absence of legal or constitutional definitions, these retired Justices say, the Constitution should be amended to declare every office an office of profit or bar all members of Parliament or state legislatures from all offices except minister, chief minister, prime minister, leader of the opposition, speaker, deputy speaker, chairman or deputy chairman of the Upper House.

Interestingly, the National Commission to Review the Working of the Constitution recommended in its March 2002 report that the Constitution should be suitably amended to empower the Election Commission to identify the offices that should be deemed offices of profit and the ones that shouldn8217;t come under its ambit.

But with political interests working at cross-purposes, this recommendation may be never taken seriously.

THE BATTLE of LISTS
The list is growing longer, and the expulsions/resignations can8217;t really keep pace. Over the past week, the number of MPs found to be holding 8216;offices of profit8217; in violation of Article 102 1A of the Constitution has swelled both by volume and profile.

FIRST MOVER: Kanpur Congressman Madan Mohan Shukla. He worked on the grounds that the Samajwadi Party8217;s Jaya Bachchan, who pipped him to a Rajya Sabha seat, could not occupy the seat since she was also chairperson of the UP Film Development Council.

COURSE OF LAW: The petition went to President A P J Abdul Kalam. The President forwarded the case to the Election Commission, which proactively gave an opinion against Bachchan. By convention, Kalam had to abide by it.

THE FALLOUT: Bachchan lost her RS seat. Legal eagles in the government and the Congress began wondering if the chairperson of the National Advisory Council could be vulnerable as well. The points they considered: if the government was the appointing or nominating authority; if the government had the power to dismiss the holder of the office; if patronage could be given to state/Centre; if the entire functioning of the office was under the scrutiny of the CAG.

On Thursday, Sonia Gandhi quit office as MP as well as head of the NAC. But there are several others MPs against whom 8216;office-of-profit8217; charges are pending before the EC. A sampler:

raquo; Somnath Chatterjee: Lok Sabha Speaker; chairman, Sriniketan-Santiniketan Development Authority
raquo; Karan Singh: Rajya Sabha MP; ICCR chairman resigned
raquo; T Subbirami Reddy: RS MP; chairman, Tirumala Tirupati Devasthanam Board
raquo; Kapila Vatsayan: RS MP; president, Indira Gandhi National Centre of Arts resigned
raquo; Md Salim: CPM MP; chairman, West Bengal Minority Finance and Development Corporation
raquo; Hannan Mollah: CPM MP; chairman, Wakf Board, West Bengal
raquo; Sujan Chakraborty: CPM MP; chairman, West Bengal State Pharmaceutical Corporation
raquo; Amitava Nandi: CPM MP; vice-chairman, West Bengal State Fisheries Development Corporation,
raquo; Lakshman Seth: CPM MP; chairman, Haldia Development Authority
raquo; Sudhansu Sil: CPM MP; chairman of Mallik Ghat Flower-Merchants Committee

SANTWANA BHATTACHARYA