Legal angles

Published : Apr 07, 2006 00:00 IST

THE "office of profit" issue has all the essential ingredients of a political controversy. The somewhat technical nature of the case has invited a degree of legal wrangling as well. The issue has its genesis in Article 102 (1) (a), which forbids a member of either House of Parliament to hold any office of profit under the Government of India or any State government, unless exempted by a specific Act of Parliament. The Supreme Court observed in Madhukar G.E. Pankakar v. Jaswant Chobbildas Rajani & Ors. in 1977 that the purpose behind Article 102 was to avoid a conflict between duty and interest and to minimise the misuse of official positions to further personal interests. The Article was also designed to ensure a degree of autonomy to MPs as it was felt that those who held positions of authority at the pleasure of the executive were likely to be influenced by it.

However, if the underlying logic of Article 102 is accepted, the exemptions from disqualification, as stated in the Parliament (Prevention of Disqualification) Act of 1959 (PPD), become difficult to justify. This is precisely why the court explained in the same judgment that the "Constitution mandates the State to undertake multiform public welfare and socio-economic activities involving technical persons, welfare workers, and lay people on a massive scale so that participatory government may prove a progressive realityFormer Attorney-General Soli J. Sorabjee feels that the lack of a clear definition of the term `office of profit' is the principal reason for the present fracas. "Why run to the Supreme Court for every dispute of this nature?" he asks. While Article 102 forbids an MP from holding an office of profit, it falls short of defining such an office. Instead, the various parameters in the Article have been enunciated and calibrated by a long history of case law. As per the existing practice, any case involving a disqualification on the basis of Article 102 must be evaluated on the following counts:

The first test is that of "office". As laid down by the Supreme Court in the landmark case of 1970, Kanta Kathuria vs Manak Chand Surana, a useful test for the validity of the term "office" would be if "the office existed independently of its holder". The Kanta Kathuria case addressed another aspect of the latest controversy when it allowed the passing of an ordinance by the Government of Rajasthan to allow for a retrospective exemption of an office of profit under the PPD, 1959.

"Apart from the contextual definition of `office', one must also consider whether the government exercises control over the performance of office functions, and whether it pays the remuneration", says P.P. Rao, constitutional expert and senior advocate. Once the nature of the "office" is established, the next step is to determine if a particular office is one of "profit".

The court dealt with the issue of "profit" in the 1975 Karbhari Bhimaji Rohamare v. Shankar Rao Genuji Kolhe & Ors. where it stressed the need to differentiate between pecuniary gain and compensation for "out of pocket expenditure". Thus, on the basis of the PPD Act and the various judgments, a number of offices such as that of the Deputy Commissioner of the Planning Commission have been exempted from disqualification. In the case of Sonia Gandhi, the post of Chairperson of the National Advisory Council is clearly an "office".

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