M A I N   N E W S

OPINION
Jaya Bachchan is in good company
K.N. Bhat

Inzamam-ul-Haque, the Pakistan cricket captain was declared out in the recent Lahore Test because his not-too-small body prevented a throw from travelling towards the wicket — obstructing a fielder is one of the nine ways of getting out in cricket. Many years ago Indian all rounder Mohinder Amarnath was a rare victim of a rule against “handling the ball” — he instinctively touched the ball after playing and it was almost stand-still near his crease. Mrs. Indira Gandhi’s election was set aside on the ground of committing “corrupt practice” — in this case the “corrupt practice” was having Yashpal Kapur, a gazetted officer as her election agent though he resigned from his government job a little too late and at his biding some officers in the constituency helped in erecting rostrums. A former Karnataka Chief Minister, Late Mr Ramakrishna Hegde, then a member of the Rajya Sabha was adjudged disqualified by the Election Commission because he at the time of his election was holding the office of Deputy Chairman, Planning Commission — an office of profit according to the EC. All games, including some aspects of real life have some rules that are too technical, but they are as fatal as any other. Each one of them claim some victims. And the latest victim is Jaya Bachchan — depressing, but not shameful.

Article 102 of the Constitution prescribes many disqualifications ‘for being chosen as and for being a Member of either House of Parliament’. This provision is fundamental and no one can control its sweep. One of the disqualifications is holding of an “office of profit under the Government of India or the Government of the State”. Parliament, however, can make a law declaring any or as many as they like, offices as not to disqualify its holders. Parliament has made a law. The Parliament (Prevention of Disqualification) Act, 1959, and a large number of offices like ministers, leaders of Opposition and chairpersons of several commissions or committees were declared as not offensive to the Constitutional prohibition. The Post of Chairperson of UP Film Development Corporation held by Jaya Bachchan since August 2004 is not one of them. Not knowing these is not Jaya Bachchan’s fault, but those who persuaded her to accept this position with perks and status of a Cabinet minister — she apparently drew no salary — should have attempted at some fleeting acquaintance with the Constitution of India, to which they have pledged “true faith and allegiance”. To complete this part of the story, the Election Commission rendered its opinion after listening to the elaborate arguments by Jaya Bachchan’s lawyers.

Ramakrishna Hegde’s story has many lessons. In the year 1989 or so T.N. Seshan as Cabinet Secretary signed the order appointing Hegde as Deputy Chairman of the Planning Commission. The specially designed order of appointment contained several provisions like no remuneration except reimbursement of the actual expenses incurred in connection with the travel etc — all aimed at taking that office out of the “office of profit”. Eventually, Hegde as anticipated, became a Member of the Rajya Sabha.

Hegde’s bete noire Subramaniam Swamy complained to the President of India that the office of Deputy Chairman, Planning Commission, was an office of Profit under the Union of India — hence Hegde was disqualified. The President, being obliged to do so, referred the question to the Election Commission for opinion. By then, Seshan, the former Cabinet Secretary who had signed and reportedly designed Hegde’s appointment order for and on behalf of the President of India, was the Election Commissioner who was asked to give the opinion. His opinion was that Swamy’s complaint merited acceptance and Hegde be disqualified. This opinion was binding on the President — he had no option but to unseat Hegde. Fortunately, the Courts are not bound by EC’s opinion. They can examine whether or not an office is really of profit contemplated under Article 102. The Karnataka High Court initially stayed the opinion before the President went through the formality and eventually quashed it. As a result in 1993, The Parliament (Prevention of Disqualification) Act, 1959 was amended to declare that the office of Deputy Chairman of Planning Commission was no longer an office of profit.

The expression “office of profit” is not defined any where. Courts from time to time have been pronouncing upon specific cases that came before them and a somewhat defused pattern has emerged. The philosophy behind this prohibition is that Members of Parliament should be free to function independently of the Executive. By accepting an office of profit, theoretically they will be subject to pressure by the Executive — another myth and hangover from the British that has crawled into our Constitution.

Way back in 1967, one Mrs. Kathuria, holder of office of Special Government Pleader under the State of Rajasthan was declared elected to the State Assembly. Her election was challenged on the ground that she held an office of profit. Before the Election Petition could be heard, the Rajasthan Legislature passed an Act entitled Rajasthan Legislative Assembly Members (Prevention of Disqualification) Act, 1968 which removed Mrs. Kathuria’s disqualification retrospectively. A five-member Bench of the Supreme Court held that the Constitution itself recognised the power with the Legislature to remove the disqualification and Legislature had the power to pass retrospective law.

In 1985, a question arose whether an Accountant in charge of Agartala Municipality in the State of Assam was a holder of an office of profit. The court held that he was an officer of the Municipal Commissioner and accordingly did not hold an office of profit “under the State”. Persons employed in companies controlled by the government do not hold office of profit. The Supreme Court expounded the law as follows:-

“The core question that comes to the fore from the survey of the panorama of case-law is as to when we can designate a person gainfully engaged in some work having a nexus with government as the holder of an ‘office of profit’ under government in the setting of disqualification for candidature for municipal or like elections. The holding of an office denotes an office and connotes its holder and this duality implies the existence of the office as an independent continuity and an incumbent thereof for the nonce.

Certain aspects appear to be elementary. For holding an office or profit under Government one need not be in the service of Government and there need be no relationship of master and servant. Similarly, we have to look at the substance, not the form. Thirdly, all the several factors stressed by this Court, as determinative of the holding of an ‘office’ under government, need not be conjointly present. The critical circumstances, not the total factors, prove decisive. A practical view, not pedantic basket of tests, should guide in arriving at a sensible conclusion.”

An election petition was filed against late Rajiv Gandhi contending that he was already a Lok Sabha Member receiving salary and allowances payable to an MP. The court rejected the contention and upheld the election of Rajiv Gandhi even though in the Protection from Disqualification Act an MP is not specifically mentioned unlike ministers, leader of the Opposition and a host of other offices.

What is clear that every office or activity that brings in money is not an office of profit. MPs are not prohibited from pursuing their own avocations as lawyers, doctors or architects and the like. A political party or a group of them may select one of the MPs as a chairperson with remuneration — but that is not an office of profit under the government, because the executive government has no control over that chairperson.. So, Sonia Gandhi on this count has not attracted a disqualification. Rajiv Gandhi Trust or bodies like them are not governments — the outcry therefore is just politics. Laws such as these appear funny — but so are the laws that get a batsman out for obstructing a throw that would never have hit the stumps or handling a ball that would not have travelled up to the wicket. If all the laws were to be very logical, the games would be boring.

The writer is K.N. Bhat, Senior Advocate, Supreme Court Of India