Constitutional farce

That is what the resignation, renunciation and impending re-election of Sonia Gandhi amount to.

BY her dramatic announcement that she was resigning her Lok Sabha seat and from the National Advisory Council (NAC), Congress president Sonia Gandhi was haloed on her second `renunciation', which was followed by resignations galore from Congress members either in adulation of the sacrifice of the leader or because of the imminent danger of disqualification for holding posts of profit. Significantly, Rajya Sabha or Lok Sabha members who were cocksure of succeeding in byelections were more valiant than others.

In a panic to overcome the crisis, the government resorted to the inexplicable adjournment of Parliament in order to issue an ordinance that would take out of the purview of `office of profit' several offices and prevent disqualification of members, with retrospective effect. If such an ordinance had been issued, it would have created more problems for the Ministry than it would have solved. Patently, issuing such an ordinance in the midst of the Budget session would have been highly improper and unconstitutional.

The distress expressed by Congressmen on the possibility of Sonia Gandhi's disqualification was in contrast to their jubilation when Jaya Bachchan was disqualified as a member of the Rajya Sabha under the same law. Uttar Pradesh Congress president Salman Khurshid hailed the decision exuberantly: "Everyone should accept the President's decision on the Jaya Bachchan issue sportingly and it should not be made a political issue." The same exhilarating mood vanished when there was a petition against Sonia Gandhi as chairperson of the NAC and there was very high possibility of her disqualification.

The main purpose of the constitutional provision and the statutory provisions on disqualification for holding offices of profit is to ensure that legislators of Parliament or State legislatures are able to carry out their duties and responsibilities free of any inducement from the Executive. There is also another aspect that an office held by a legislator is not adversely affected by his membership in the legislature concerned.

Article 102 states that a person shall be disqualified for being chosen as, or for being, a Member of Parliament if he holds any office of profit under the Government of India or of a State other than the office declared by Parliament by law not to disqualify the holder. A similar provision for State legislators is in Article 173.

The Joint Committee of Parliament on Offices of Profit was constituted in August 1959 to examine the composition and character of all committees of Central and State governments and to recommend what office should disqualify and what office should not disqualify a person for being chosen as, and for being, an MP.

The Joint Committee has directed that all Ministries should obtain prior approval of the Lok Sabha Speaker or the Rajya Sabha Chairman, as the case may be, before nominating a member to any government committee/body or where MPs are saved from incurring the disqualification by provisions in the relevant Act itself. Normally such requests are sent to the Joint Committee for examination and to recommend exemption if eligible. Members may also seek guidance from the Committee before accepting any office. The reports of the Committee are presented to Parliament for action and guidance on inclusion or exclusion of committees/bodies in the schedule of exemption.

The Union government constituted the NAC on May 31, 2004, and Sonia Gandhi was appointed its Chairperson on June 3, 2004 with the rank and status of a Union Cabinet Minister. Sonia Gandhi has been associated with several other committees/bodies as well. A perusal of the functions and powers of these committees will indicate the character of office of profit in several cases as per the criteria laid out in Supreme Court decisions.

It is a pity that the government failed to submit to the Joint Committee the relevant particulars of the NAC and get its advice on the question of prevention of disqualification before making the appointment. I went through the two Reports submitted by the Joint Committee on Office of Profit in the 14th Lok Sabha. The First Report, submitted in December 2005, considered nominations of members to (i) National Monitoring Committee on Minorities Education and (ii) the position of Chancellor of Tilak University, Pune, or any other University. The Second Report, also of December 2005, dealt with appointment of an MP as Honorary Adviser in the Department of Space/Indian Space Research Organisation (ISRO) and as part-time member of the Space Commission. There has been no examination of the NAC by the Joint Committee.

It is clear that the government and MPs have been not concerned at any time with the disqualification provision in the Constitution in the establishment and acceptance of innumerable offices of profit. They woke up from the deep slumber after the disqualification of Jaya Bachchan and more so after the possibility of the disqualification of Sonia Gandhi.

Had Jaya Bachchan resigned her Rajya Sabha membership before the decision of the Election Commission and the President, she would have escaped disqualification. Jaya Bachchan became a Member of the Rajya Sabha on July 5, 2004, and was appointed chairperson of the Uttar Pradesh Film Development Corporation on July 14, 2004. The President approved her disqualification on March 17, 2006 and the disqualification is with "retrospective effect". The Rajya Sabha web site gives the particulars of Jaya Bachchan as a member from "5-07-2004 to 13-07-2004". The Rajya Sabha Secretariat is at its wits' end to take action, if any, on the order "with retrospective effect" in respect of salaries and allowances paid to her and in respect of her participation in the deliberations of the House from 14-07-2004 to 16-03-2006. The Election Commission and the President should have been clear and precise about the applicability of the "retrospective effect" of the order.

After her resignation from the Lok Sabha and the NAC, Sonia Gandhi has been resigning from several committees and bodies with amazing rapidity day after day. As per latest reports, she has sent back personal secretaries deputed by the Prime Minister's Office and the Home Ministry. In Para 13 of the Second Report of the Joint Committee on Offices of Profit of the 14th Lok Sabha, the Committee has clearly held that "the facilities of an office room with telephone/fax/Internet, personal assistant and a staff car provided" to a MP are not covered under the "Compensatory allowance" and as such the holder of office would entail disqualification for being chosen as or for being a Member of Parliament.

In respect of several offices held by many members, including Sonia Gandhi, it is highly probable that most of them might incur disqualification under one or other of the restrictions. It is a moot point whether the resignation of a Member absolves the government completely of the illegality and impropriety committed and the Member concerned of the ordeal of disqualification caused, with the proviso of retrospective effect if any.

In 1951, the Special Committee appointed by the Lok Sabha to inquire into the (H.G.) Mudgal case recommended his expulsion. However, before the House could take its final decision by division after discussion on the resolution of expulsion, Mudgal, himself a Congress member, submitted his resignation and walked out of the House. But his resignation was not accepted. It was considered that he could not resign to prevent the impending decision of the House to expel him. Prime Minister Jawaharlal Nehru pursued the resolution with an amendment that the Member "by his resignation committed a contempt of the House and aggravated his offence". It will be desirable that wherever a petition against a Member about disqualification for holding an office of profit is pending before the President or the Election Commissioner, his resignation should be kept pending until disposal of the petition.

One thing lost sight of in the whole melodrama is the rationale and purpose of resignation. Is it an escape route to avoid disqualification and its consequences? Does resignation of the membership of the House and of the office stated to be one of profit absolve a member of the offence of acceptance and holding of an office of profit against the specific constitutional directive?

More than anything else, just to avoid the consequences of disqualification, does not the MP concerned, when he resigns, act against the mandate given and betray the confidence reposed by the electorate as he deserts his assignment without serving the full term for which he was elected? A Member makes an oath/affirmation at the time of entering the House: "I will faithfully discharge the duty cast upon which I am about to enter." Does not the Member fail in his basic duty to the electorate if he resigns his post without any concern about the sovereign electors?

The constitutional structure of India is based largely on the Westminster model of parliamentary system. While India has adopted most of the privileges, immunities, rules, regulations and conventions of the United Kingdom Parliament, it has failed to follow the spirit and the basic tenets of constitutional morality and propriety of an elected member resigning his post in the middle of his term.

First of all, it is a well-established practice in the English Parliament that a member once elected cannot resign.

During those fiery times of relentless confrontation of Parliament with the despotic monarchy of Stewarts in the 17th century, serving in Parliament was regarded a public service and the member chosen should consider it an honour and duty to serve the people. He could not desert his post under any circumstances.

On March 2, 1623, the House adopted a resolution that Members of Parliament cannot resign their seats. This solemn declaration still holds good.

The latest Edition (2004) of May's Parliamentary Practice reiterates this historical resolve: "It is a settled principle of parliamentary law that a Member cannot relinquish his seat and in order to evade this restriction, a Member who wishes to retire accepts office under the Crown, which legally vacates his seat and obliges the House to order a new writ."

The posts usually selected for this purpose are those of Steward or bailiff of Her Majesty's three Chiltern Hundreds - Stoke, Desborough and Burnham - or the Steward of the Manor of Northstead. These were undoubtedly lucrative offices of profit maintained by the Crown; in course of time, with the decline of the power of monarchy, these offices lost their financial resources and special powers and perks. But the government has been keeping the legal fiction of their existence to serve a way out for members keen to retire from the House before the completion of their tenure. When a member desires to retire from the House of Commons, he applies for a post in one of these fictitious offices of profit and on being admitted without much difficulty, he ceases to be a member of the House.

In the U.K., when a member belonging to a party retires from the House through acceptance of such a fictitious office of profit, he cannot hope to be a candidate to contest the election to fill the vacancy. Selection of a party candidate depends much on the constituency committees at the local level such as the Constituency Labour Party or the local Executive Council of the Conservative Party. The national selection committees of parties normally select the candidate from the list sent by the constituency committee and the chance of a member who resigned being accommodated by the local and national committees is remote. A member may have been forced to resign in a case of serious misconduct as in the Profumo affair and there is no question of such a member being considered at any time by his party as its candidate.

In the United States, there may be vacancies caused by death, resignation, or declination (refusal to serve) of a Senator or Representative, or by expulsion or exclusion by either House. The U.S. Constitution provides for filling up of vacancies by special election; but in the case of the Senate, it empowers State legislatures to provide for temporary appointments by the Governor until special elections are held. In practice, most of the Senate vacancies are filled by interim appointments. Elections to Congress take place once in two years and if a House vacancy arises late in the life of the Congress, the State concerned normally leaves the seat vacant until election day.

Further, nominations on behalf of a party are usually decided by primary election and those for the House by primary, nominating petition, or party action as specified in the State law. There is a rare chance of a legislator resigning voluntarily in the middle of his term getting nomination through the tortuous course of primaries and the local acceptance of party men.

In many countries, a vacancy due to the resignation of a member does not cause a byelection. Under the `list system' of Germany, the first half of the members of the Bundestag (the Federal Assembly) are elected by the simple majority vote rule in the general elections and the second half by the proportional representation vote using party-lists in each federal unit. A seat that falls vacant between general elections is filled by the `next-in-line' candidate in the same party list. Only in the case of a seat of an independent candidate, a byelection may arise.

In many countries adopting some form of the `list system', such as Finland, Greece, Israel, Japan, Lithuania, the Netherlands, Portugal and Switzerland, a vacancy by resignation, death or by any other means is filled by the `next in line' candidate in the list.

In the electoral procedure of some countries, the party can indicate a `substitute' member at the time of nomination of its candidate for a constituency. When a vacancy arises in that constituency after the election, the substitute fills the seat. Such practice is in force in France, Denmark, Norway, Sri Lanka, Sweden. In Indonesia, the successor is chosen by the party of the member concerned.

Thus, in several countries, resignations do not cause byelections and a member resigning his seat cannot aspire to gain the support of his party to be a candidate in the byelection or in a future election. This avoids waste of time and resources of the state and the candidates.

But in the election law as it stands in India, there is no bar on a member contesting in two constituencies. Neither is there a bar on a member resigning his/her seat and then contesting the byelection to fill up the vacancy caused by his/her resignation. In the 1999 general elections, Sonia Gandhi contested successfully in Amethi and Bellary and resigned the Bellary seat. In the 2004 parliamentary poll, she contested in Rae Bareli only; but after she chose to resign, she is contesting for a second time in the same constituency. It is high time the law is amended so as not to allow a person to contest from more than one constituency at a poll. Further, the parties should consider the British practice of no-resignation of a person once elected, or, in the case of a vacancy caused by any reason, the adoption of the `next-in-line' or the `substitute' procedure followed in many countries.

Members are eagerly awaiting the forthcoming Parliament session, which begins on May 10, when the government is expected to initiate a consensus and introduce an amending Bill to protect members from the rigid expulsion conditions involving offices of profit. It is to be seen how far they will go to amend the law without discarding the basic objective of the constitutional provision to secure the independence of members and to prevent them from receiving favours or benefits from the Executive leading to submission of obligation to the Executive.

It will be a great task for the Prime Minister to give a proper lead to Parliament and its members in this issue of disqualification without sacrificing the independence of members. About the relationship of members of Parliament with the Prime Minister, Walter Bagehot in his English Constitution stated: "He [Prime Minister] is to them [members] what they are to the nation. He only goes where he believes they will go after him. But he has to take the lead; he must choose his direction, and begin the journey. Nor must he flinch. A good horse likes to feel the rider's bit; and a great deliberative assembly likes to feel that it is under worthy guidance. A Minister who succumbs to the House, who ostentatiously seeks its pleasure, who does not try to regulate it, who will not boldly point out plain errors to it, seldom thrives. The great leaders of Parliament have varied much, but they have all had a certain firmness. A great assembly is as soon spoiled by over-indulgence as a little child. The whole life of English politics is the action and reaction between the Ministry and the Parliament."

We have to see how wisely and firmly the Prime Minister and the leaders of parties arrive at a satisfactory solution without sacrificing the credibility of Parliament and the freedom of members from the lure of offices of profit. Indiscriminate continuation in, and misuse of, offices of profit will spell the loss of dignity of Parliament and constitutional morality of the country.