OFFICE OF PROFIT
Recent Political Controversy In Indian Political System.
Research scholar, Department of Public Administration,
Osmania University, Hyderabad, India-500007 .
A nation – wide debate is going on over the controversy of disqualification of MP’s and MLA’s on the Ground of holding offices of profit in Indian Political system. It began with the disqualification of “Samajwadi Party MP Jaya Bhachan from Rajya Sabha on March 17, 2006 with retrospective effect from July 14, 2004. After this event, leaders of different political parties performed much hue and cry. Finally Sonia Gandhi resigned from the Lok Sabha pretending the issue of morality. Very soon the controversy took a constitutional crisis and different state governments rushed to save their pillars of powers.
BACHCHAN ISSUE :
Jaya Bachchan was elected for the Rajya Sabha in June 2004. After one month she was appointed as the Chairperson of Utter Pradesh Film Development Corporation, which was an office of profit under the State government. She was given perks and other benefits as part of her job in U.P. In this way, she was holding an office of profit not withstanding her selection as the member of the Council of state very interestingly, a Congress worker from Utter Pradesh filed a complaint against Ms. Bachchan in the Election Commission. The Commission found her guilty of holding an office of profit. The President, after the Recommendation of the EC disqualified her under the Article 102 of the Constitution of India.
SONIA ISSUE :
Congress President Sonia Gandhi was a member of Lok Sabha. She was appointed as the Chairperson of National Advisory Council by the UPA government. She also held several posts under the government. Complaints were registered against her, and she chose the safe route of resignation. So that she could continue her impression of being the statue of sacrifice and morality.
The list of holders of office of profit is too long. Complaints against more than 40 MP’s are registered in the Election Commission. Lok Sabha Speaker Somnath Chatterjee himself comes within the purview of disqualification. Hundreds of member of different state legislature hold offices of profit, some how or the other.
What does it show ?
(a) Our policy – makers. Statesman, politicians, leaders and so-called stalwarts want to grab more and more power in one hand.
(b) The power loving people do not want to let the door open for others.
(c) They need money by any means, so that they could hide their black money.
(d) In an era of corporate culture of democracy, only money begets powers.
(e) In order to sustain in power, the thirst of greedy leaders can be satisfied only by giving them of faces of profit.
(f) Our political party’s, power-loving representatives and peoples leaders have lost morality, principle and dignity. They need power, they need money : but they do not need welfare of the people.
CONSTITUTIONAL ASPECTS :
Disqualification of MP’s : There are separate provisions of disqualification for the member of parliament and the member of state legislature. Article 84 prescribes qualifications of the members of parliament. It lays down that a person shall not be qualified to be chosen to fill a seat in parliament unless he
(a) is a Citizen of India and makes an subscribes before some persons authorized in that behalf by the Election Commission on oath of affirmation according to the form set out for the purpose in the third schedule.
(b) is of at least 30 years of age for the Rajya Sabha and of 25 years of age for the Lok Sabha (C) and possesses such other qualifications as may be prescribed in that behalf by any low made by the parliament.
Our Constitution clearly mentions that the parliament has the power to make a low in respect to the issue of qualification of the member. Article 102 lays down disqualification of membership in case.
(a) he holds any office of India or of any state, other than an office declared by a low of parliament not to disqualify its holders.
(b) he is an undischarged in solvent.
(c) he is of unsound mind and stands so declared by a competent court.
(d) he is not a citizen of India or has voluntarily acquired the citizenship of a foreign state or is under any acknowledgement or allegiance or adherence to a foreign state, and
(e) If is so disqualified by or under any law of parliament, it applies to the case of defection as prescribed in Tenth Schedule.
Article No.103 lays down that any dispute about the disqualification of member of parliament shall be referred to the President who will take a decision on the advice of the Election Commission and his decision shall be final. The Election Commission has a great role as the President decides the matter after obtaining its opinion and is accordance with that option and in case of disqualification on grounds of defection, the matter will decided by the Speaker or Chairman of Rajya Sabha as the case may be.
Disqualification of MLA’s and MLC’s : The disqualifications for membership in State Legislature are spelt in Article 191 which lays down.
1. A person shall be disqualified for being chosen as and for being a member of the Legislative Assembly or Legislative Council of a state –
(a) if he holds any office of profit under the government of India or the government of any state specified in first schedule, other than an office declared by the Legislature of the State by law not to disqualify sits holders.
(b) If he is of unsound mind and stands so declared by a competent court.
(c) If he is an undischarged in solvent.
(d) If he is not a citizen of India, or voluntarily has acquired the citizenship of a foreign state, or is under any acknowledgement of allegiance or adherence to a foreign state.
(e) If he is so disqualified by or under any low made by the parliament.
2. A person shall be disqualified for being a member of the Legislative Assembly or Legislative Assembly or Legislative Council of a state if he is so disqualified under the anti-defection law contained in Tenth scheduled.
Finally we may refer to Article 192 which says that if there is any dispute about the qualification of a member of the State Legislature, the matter shall be settled by the Governor whose decision shall be final and he shall do so after taking the opinion of the Election Commissioner.
LEGAL ISSUE AND OPTIONS :
To constitute an office of profit under Article 102 (1) (a) of the Constitution, Three conditions are to be satisfied.
Ø There should be an office to which an appointment is made.
Ø It should be an office of profit.
Ø The office should be one under the government.
However, the parliament (prevention of Disqualification) – act 1959 specifies certain offices, which will not come within the purview of the disqualification and several offices have been added after the enactment of the law. The office of the Minister is excluded from the office of profit. The law has been amended time and again for minor posts and for lesser mortals.
Ø In 1977, when a non-Congress party came to power for the leader of the opposition in each House was provided a Special Salary and allowances. Since that made it an office of profit. The Morarji Desai government simultaneously amended the 1959 Act to put the leader of the opposition in the exempted list.
Ø In 1992 the National Commission for Schedule Casts and Scheduled Tribes (as it was then called) and National Commission for women came into existence while the National Commission for Minorities was conferred statutory study. Within a year, the Narasimha Rao government amended the act to save heads of those three commissions from being affected by the office of profit rule.
Ø In 1999, leaders and chief whips of all recognized parties and groups in parliament were provided special facilities. The Vajpayee government simultaneously amended the 1959 act to protect them from disqualification. On September 30, 1982, the President disqualified a member of the Rajya Sabha – M.R. Mohan Rangam as he was holding the post of Special representatives of the government of Tamil Nadu in Delhi. It was taken as an office of profit.
The Supreme Court in the Shibu Soren case has made it clear that even if the holder of the office does not drawn salary, he or she will be deemed to hold an office of profit if the office carries same remuneration or pecuniary benefits.
And, now the cabinet committee on parliamentary affairs decided to convene a session of parliament from May 10 to 23 to discuss the office of profit for taking a final decision.
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