Political
Diary
New Delhi, 30 August
2022
Office
Of Profit
CONFLICT
OF INTEREST, TOH KYA?
By
Poonam I Kaushish
It
started with BJP complaint February against rival Jharkhand Chief Minister
Hemant Soren demanding CBI-ED probe into State’s mining scandal along-with
corruption and conflict of interest filed against Soren for misusing his
position as Mining Minister and allocating a mining plot to himself last year.
Typically JMM-RJD-Congress dismissed it as sour grapes, while political pundits
read a deeper meaning: Of BJP out to kill two birds with one stone. Dethrone
Soren and form Government.
Last
week Election Commission disqualified him as MLA under Representation of People
Act and all eyes are on Governor Ramesh Bais’s decision which could trigger
political instability in a State which has seen 11 Governments and three
President’s rule spells in 22 years. As BJP sharpens criticism, Soren-led JMM
coalition is brazening it out stating no rules broken as lease surrendered
alongside taking conspicuous steps to keep flock together.
The
issue is not whether it is end of the road for Soren in Office-of-Profit
controversy? Nor is it about Governor upholding EC’s recommendation to
disqualify him? Neither political costs of allies standing by him? What matters
is what is morally and politically correct thing to do: Soren should resign and
seek re-election.
Just
as Sonia Gandhi did when accused of holding
Office of Profit by being MP and Chairperson of National Advisory Council with
Cabinet Minister rank in UPAI. She
resigned as MP and sought re-election 2006. The
controversy arose due to Congress' political managers’ oversight who forgot to
seek exemption from Office of Profit Act for Chairman NAC post.
Industrialist Anil Ambani also pleaded guilty of holding
Office of Profit and quit Rajya Sabha, ending his brief but controversial stint
in politics. Ditto, Samajwadi Rajya Sabha member Jaya Bachchan who doubled as
UP Film Development Corporation Chairperson.
Importantly,
Office of Profit Act states: To be in a position that brings to office-holder
some financial gain, advantage or benefit’. Under Article 102(1)(a) and Article
191(1)(a) a person shall be disqualified for being chosen as, and for being MP or
Legislative Assembly/Council member if he holds an “Office of Profit” under
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 Supreme Court too underscored that 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.
According
to Constitutional expert Durga Das Basu, “The principle underlying this
disqualification is that there should be no conflict between duties of a member
of Legislature and his private interests and that the indebtedness of a member
to Government is incompatible with his independence as a representative of the people”
Interestingly,
“Office of Profit” is not defined anywhere. Courts have been passing
judgments whereby a vague pattern has emerged. The philosophy behind this
prohibition is that MPs-MLAs should be free to function independently of
Executive. By accepting Office of Profit, theoretically they become subject to
pressure by the Executive. Arguably, if nearly half the House becomes part of
Executive, then business of legislators holding the Executive accountable
suffers. Certainly, not a happy state of affairs.
Pertinently,
to overcome the disqualification issue Parliament and several States have
enacted laws exempting and expanding certain offices from Office of Profit
purview. In 2015 when all 60 MLAs of Nagaland Assembly joined ruling
alliance, the Chief Minister appointed 26 legislators as Parliamentary
secretaries. In 2017, Goa’s 40 MLAs Assembly exempted more than 50 offices by
an ordinance!
Worse,
ex MP-industrialists like Mallya, Maharashtra’s newspaper baron Vijay Darda and
Reliance Petroleum’s director YP Trivedi who were part of the Standing
Committee on Finance and Consultative Committee of Commerce and Industry
Ministry to Bihar’s deceased pharmaceutical tycoon Mahendra Prasad aka 'King
Mahendra' were Office of Profit poster boys but took recourse to a loophole
which bars a MP from occupying any Government positions but does not restrict
him from holding a position in a corporate. Sic.
Also,
ex-UPA’s DMK Union Shipping Minister Baalu’s shenanigans who “put in a word” to
then Petroleum Minister Murli Deora to provide gas to family-owned King Power
Corporation run by his sons post his resignation as MD subsequent to becoming
Minister. Tamil Nadu’s Marans were also entangled in conflict of interest cases
in blatant allotment of 323 high-speed telephone lines to his residence to help
family enterprise Sun TV network.
This
apart, questionably, has ‘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-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 plenty at Centre and States wherein MPs/MLAs who cannot be accommodated in
Cabinet are compensated by being appointed Chairman’s of various corporations
and commissions enjoying status of Cabinet or Minister of State.
Look
at the absurdity. A MP as member of airline board takes no salary but enjoys
amazing perks ---- unlimited first class travel and entertainment. Legislators
as members of various Standing Committees get public undertakings to pick up
the tab for their five-star hotels, shopping, gifts etc.
The
situation is worse in States. 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.
The
best way to handle conflicts of interests is to avoid them entirely. For
example, an elected MP might sell all corporate stocks that he owns before
taking office and resign from all corporate boards. Or moves his corporate
stocks to a special “blind” trust, which would be authorized to buy and sell
without disclosure to him. Since the MP would not know companies the trust has
invested in, there would be no temptation to act to his advantage.
Clearly,
the Soren controversy on 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, RJD, BJD etc. It spotlights our polity’s
recurring abuse of its authority to distribute patronage at will by nullifying
the basic object of Article 102.
Thus,
it is time for 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! ---- INFA
(Copyright,
India News & Feature Alliance)
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