Events & Issues

New Delhi, 26 January 2018

Office of Profit

RESULTING IN LOSS

By Dr. S Saraswathi

(Former Director, ICSSR, New Delhi)

The President of India has accepted the recommendation of the Election Commission to disqualify 20 MLAs of the Delhi legislature for holding “offices of profit” as Parliamentary Secretaries. It is by far the biggest impact of the rule and practice on this subject by affecting not a single or a few MLAs, but a whole group, at the same time thereby reducing over three-fourths majority of the ruling AAP government to a simple majority.

One post of Parliamentary Secretary allowed for the Chief Minister’s office was increased as 21 -- three per Minister -- by the present Delhi Government and were filled by AAP MLAs in March 2015. Three months later, the Delhi Legislative Assembly passed a bill exempting the post of Parliamentary Secretary from the purview of “office of profit”. But, it did not get the assent of the President. Consequently, the appointments were scrapped by the Delhi High Court in September 2016 and a plea was submitted to the President to disqualify the concerned members.

The issue involves a number of questions regarding disqualification after scrapping of the appointments by the High Court. The argument that the posts carry no salary or monetary compensation is rather frivolous as these carry some perks, prestige and status, access to information locked in ministerial secrecy, power of influence through proximity with ministers, and official machinery including accommodation. The post is generally equal in rank to the Minister of State.

There has been little difference of opinion over the nature of the functions that can be entrusted to the Parliamentary Secretary as an executive functionary. Evidently, the post provides a trusted secretary to Ministers whose permanent civil servants not chosen by him/her may or may not follow his/her line of thinking and action to tender the kind of advice he/she expects. The casualty in such an approach in governance is the concept of separation of powers.

Expansion in the size of ministries is a political compulsion for coalition governments at the Centre and States to share power with friends and allies. The coalition government headed by the Samajwadi Party in UP in 2003 contained 98 ministers and the CM was willing to expand it to 105 when the strength of the UP Assembly was about 400. In Bihar at that time, RJD’s government had 82 ministers including 30 in Cabinet rank. West Bengal was fourth in the list of large ministries with 44 ministers.

The 91^st amendment of the Constitution adopted in 2004 added Article 72(1)(A) which has   prescribed a limit on the total number of ministers as 15 per cent of the strength of the House.  For smaller States -- Goa, Mizoram, and Sikkim -- seven ministers are proposed. The provision effectively bars unlimited extension of patronage through appointment of ministers.

Indeed, the post of Parliamentary Secretary came handy to absorb some MLAs left out in the distribution of ministerial berths. Though the functional importance of the post in ideal democracies may be genuine, its practical political use can neither be denied nor missed.

The concept of “office of profit” has its origin in the Act of Settlement, 1701 in Britain which said: “No person who has an office or place of profit under the King or receives a pension from the Crown shall be capable of serving as a member of the House of Commons”.

The Constituent Assembly in India did not consider the issue of “office of profit” as an important one for detailed discussion. A proposal to disqualify any person accepting any post that carries a salary from becoming a parliamentary member was rejected. The matter was regarded as a question of parliamentary privilege that should be settled in the legislative bodies and not laid down in the Constitution. The Interim Parliament (1947-52) considered it necessary to exempt MPs appointed as members of various committees or boards with the consent of the Speaker from the purview of the practice governing offices of profit.

Article 102(1) bars a member of either House of Parliament from holding “any office of profit” other than an office declared by law not to disqualify its holder.

Since 1950, several offices exempt from being considered as “office of profit” have been identified through legislations. It went on quietly until 2006 when President Kalam wanted clear criteria which should be “fair and reasonable” and applicable in “clear and transparent” manner.

The controversy then erupted led to the resignation of Sonia Gandhi from Lok Sabha and Jaya Bachchan from Rajya Sabha. In August 2006, the President gave his assent to the bill exempting over 50 posts from the purview of “office of profit” which included chairperson of the National Advisory Council.

Despite a long history and serious implications in its application, there is no precise definition of the term “office of profit”. Judgements of the Supreme Court have laid down certain tests which include the right of the government to appoint, remove, and dismiss the holder of the post, payment of remuneration by government, nature of functions, and control of the government over their performance. The power to exempt offices from the list of “offices of profit” for the purpose of disqualifying the MLAs holding the office is left with Parliament and State legislatures.

The Delhi Government has obviously ignored the precedents involving scrapping of appointments of parliamentary secretary by various High Courts. They included eight chief parliamentary secretaries and four parliamentary secretaries in Himachal Pradesh in 2005; two parliamentary secretaries in Goa in 2009; and 24 parliamentary secretaries in West Bengal in June 2015. The new government of Telangana tried to start with eight parliamentary secretaries, but was blocked by the court. So also in Punjab and Haryana, such appointments were cancelled by the High Court. In Karnataka, the post was introduced in 1963, but not used. The present government appointed 10 parliamentary secretaries in the rank of Minister of State who are entitled to salary and allowances.

In several Commonwealth countries -- the UK, Canada, and Australia -- the Prime Minister appoints Parliamentary Secretaries to assist Cabinet ministers in their work and thereby get training to become ministers. They are practically third level ministers designated as Assistant Ministers in some places. In the UK, they are not paid.

In the US, a member of the Congress cannot be appointed to an executive office if the post was created or its emoluments raised during his tenure. Correspondingly, no executive officer can become a member of the Congress. The principle of “separation of power” is scrupulously followed as a contrast to “fusion of powers” or laxity in separation of powers practised in Commonwealth countries.

The ‘office of profit’ in Delhi has resulted in loss to the holders. Further, it is forcing by-election for 20 seats in Assembly. As AAP is experiencing many ups and downs in its less than 4-years old career, it will virtually be a test on the current popularity of the AAP party. The electoral confrontation between the BJP and the Congress in election-bound States getting more bitter in the last two years, the by-election will also indicate what is in store in the 2019 parliamentary poll. ---INFA

(Copyright, India News & Feature Alliance)