Politics of profit

The `office of profit' debate will gain strength when Parliament reconvenes on May 10.

VENKITESH RAMAKRISHNAN in New Delhi

THE legal dimensions of the amendment to the Parliament (Prevention of Disqualification) Act, 1959, may become clear only when the Lok Sabha reconvenes on May 10, but it is fairly clear now as to how the political dimensions of the `office of profit' controversy will develop at that juncture.

It would revolve, broadly, around the same issues that characterised it when the dispute rose to its peak in mid-March. Congress president Sonia Gandhi's "renunciation" of the chairpersonship of the National Advisory Council (NAC) and Lok Sabha membership would form the central piece of the ruling coalition's debate. The Bharatiya Janata Party (BJP)-led Opposition and even parties supporting the United Progressive Alliance (UPA) government formally such as the Samajwadi Party (S.P.) would try to focus on how the Congress subverted Parliament during the Budget session to save Sonia Gandhi and how the party leader took recourse to the "renunciatory path" finally to avoid political embarrassment.

Events outside Parliament would also contribute to the revival of the debate on these lines. The quick action of the Election Commission in calling for elections in Rae Bareli - the seat vacated by Sonia Gandhi, in Uttar Pradesh - on May 8 would lead naturally to the Congress president's re-entry into the Lok Sabha. In fact, Sonia Gandhi would be present when the legislation comes up for discussion in Parliament. The Congress and many of its associates in the UPA would certainly convert this re-entry into an occasion for celebration.

On the side of the Opposition, the BJP's Parliament members would converge in New Delhi on May 10 for the conclusion of the twin Bharat Suraksha Yatras, led by Leader of the Opposition Lal Krishna Advani and party president Rajnath Singh. The results of the five Assembly elections, which are to come out in the first week of May, would provide a special backdrop to all this political action.

In the midst of all this, what will be the nature of the legislation that will be pushed through ultimately? How would the government redefine an office of profit? The initial signals from the government provide no clarity on these questions, though it did evolve a consensus in the last week of March to convene Parliament to enact a new law.

Indications are that the government is considering many options, including the ones to demarcate clearly some posts as offices of profit and at the same time broaden the list of offices that are exempted. There is apparently considerable confusion in deciding which offices could be treated as offices of profit. Another point being debated between the Ministry of Law and other Departments is whether the government can be accorded all the powers to modify the list of offices of profit through a simple notification or whether sanction of Parliament should be mandatory.

Apart from questions on the listing of offices of profit, certain basic contradictions relating to the existing laws also need to be addressed. A serious question in this regard is about the constitutional powers that the Election Commission has in deciding which posts are offices of profit and recommending disqualification of those holding such offices. There have been suggestions for long, even from sections of the Congress, that these powers should be vested solely in a parliamentary committee. There is already a parliamentary committee which has the right to decide offices of profit, but its powers do not supersede that of the Election Commission.

The functioning of the parliamentary committee is such that it examines questions relating to a member and his or her holding of an office of profit as and when it gets a reference from the presiding officers of the Lok Sabha or the Rajya Sabha. At the same time, the Constitution stipulates that the President of India can refer a matter or a complaint of similar nature that has come for his consideration to the Election Commission. Whatever decision the Election Commission takes on the reference shall be binding on the President. This is what happened in the case of Jaya Bachchan, the S.P. Rajya Sabha member from Uttar Pradesh. The complaint against her went to the President, he referred it to the Election Commission, and the decision for disqualification taken by the Election Commission was binding on the President. The same procedure would apply in all similar cases pending before the President.

The government has initiated consultations with all political parties on these issues. Though details of the discussions have not been publicised, it is clear that the BJP and the Communist Party of India (Marxist) have drawn attention to a "basic principle" formulated by the parliamentary committee on the `office of profit' question. The committee had said that "the basic principle underlying the imposition of disqualification under Articles 102(1) (a) and 191(1) (a) of the Constitution is that a member of the legislature should not be indebted to the government by accepting an office of profit under the government and thus compromise his independence".

This has been interpreted to assert that an office of profit does not mean an office that yields monetary profit but a position that has such "executive dimensions" that are likely to create a conflict of interest with legislative conduct.

Talking to Frontline, BJP leader Arun Jaitley pointed out that the government proposal had to take this basic principle and its definition into consideration, remembering that the job of the legislator and the legislature was to keep a check on the executive and not to be subservient to it.

The CPI(M) has pointed out that the December 2005 report of the parliamentary committee on the issue could well form a guideline for the government's legislation process. The report had identified three criteria to determine if holding a certain office should disqualify members under the law. The first criterion raised the point "whether the holder draws any remuneration, like sitting fee, honorarium, salary, etc." [any remuneration other than the `compensatory allowance']. The second criterion asked "whether the body in which an office is held exercises executive, legislative or judicial power or confers powers of disbursement of funds, allotment of lands, issue of licences, or gives powers of appointment, grant of scholarships, etc". The third criterion raised the question "whether the body in which an office is held wields influence or power by way of patronage". The party pointed out that the legislation has to study these criteria closely.

On its part, the government is extra cautious. Especially in the context of the open admission of Parliamentary Affairs Minister Priya Ranjan Dasmunshi that the government's actions in the series of events leading to Sonia Gandhi's resignation did reflect "lack of wisdom and lack of understanding". Dasmunshi's suggestion apparently was that although the controversy had raged for more than six months, the Congress and its government failed to realise that it would ultimately affect its own leader.

"We should have examined every position at the Centre and the States which are grey areas," Dasmunshi had said. In the context of such admissions, the effort is to bring "fool-proof" legislation. The efforts might ultimately lead to a law on which there is a unanimous agreement. But even so there is little doubt that politicking on the issue will continue.