The "Office of profit": A tool for Executive to control the Legislators

The “Office of profit”: A tool forstamp vendor or deed writer, a share holder in a
Executive to control the Legislatorscompany transporting postal articles and mail bags
By Dr. Madabhushi Sridhar, Professor, NALSARdo not hold any office and not disqualified. In
University of Law, Hyderabad.Ravanna Subbanna v Kaggeerappa , a member of
Jaya Bachchan’s disqualification, the Uniongovernment appointed committee, who draws
Government’s proposed Ordinance to savesitting fees to meet his out of pocket expenses
some MPs, the opposition’s hue and cry thatto attend committee meetings does not hold an
the ordinance was to save Mrs Sonia Gandhi, andoffice of profit, as what is paid to him is not by
strategic resignation of the later to disarm theway of profit but by only as a compensation.
opposition and remove the sting in their attack ledRamakrishna Hegde Case
to a very serious controversy over the offices,In Ramakrishna Hegde v State of Karnataka ,
their profits, and the control of the governmentHegde was a member of Karnataka Assembly.
over them.He was appointed as Deputy Chairman of the
As the dust of politics settled, it is time now toPlanning Commission. He did not draw any salary
look at the concerted effort to amend the law tobut only allowances like traveling allowance, daily
facilitate double offices of profit. There is a needallowance, conveyance allowance, house rent
to examine the impact of such amendments toallowance, etc., The High Court ruled that it would
remove the disqualification.not disqualify him. There is an enactment in
Articles 102 and 191 of the Constitution wereKarnataka, Karnataka Legislature (Prevention of
originally aimed at securing total independence toDisqualification) Act, 1956 which exempts this post
legislative members and that is why the holding offrom being considered as ‘office of
an office of profit under government is prescribedprofit’. Parliament and Legislatures are having
as an operative disqualification. Only to deal withpower, according to Article 102 and 191, to
some emergency complex situations the articlesdeclare certain posts as not to be considered as
provided for declaration of some posts as not‘office of profit’. The Parliament
office of profits under government by way of a(Prevention of Disqualification) Act, 1959 declared
law. Now all the political parties might agree tothe offices which are listed therein are not
totally dilute the principle of office of profit as a‘offices of profit’. The purpose of this
disqualification and permit a huge list to be addeddisqualification is to avoid conflict between duty
to Parliament Members (Removal ofand interest. The legislators should be free from
Disqualification) Act 1959. This is totally against theany interest when they are performing the duty
spirit of democratic constitutionalism, which thrivesas legislator and representative of people.
on strict separation of legislature and executive.Tests for determining whether an office is an
The government is responsible and accountable to‘office of profit’ under government are
the legislature. The representatives of the peopleas follows: i) whether the government makes
in their capacity as members of legislature haveappointment ii) whether the government has the
right, powers and duty to question theright to remove or dismiss the holder of office iii)
government without any fear or favour. Thewhether the government pays remuneration iv)
responsibility of Government to Legislature andwhether the functions performed by the holder
duty of legislator to question the government willare carried on by him for the government and v)
be diluted if the member is ‘under the controlwhether the government has control over the
of Government’. The democraticduties and functions of the holder.
constitutionalism intended to avoid theseThis means the money or salary is not the
‘controls’ on legislators.criteria at all to consider whether the
In India there is, in fact, the line of separation is‘office’ has any ‘profit’ attached
very thin between executive and legislature. Theto it or not. The Executive power, control of the
Executive Government emerges out of andGovernment, power of government in appointing
confines to the Legislature. The Council ofor dismissing the office holder will make that an
Ministers decide the legislative policy and run theoffice of profit. A government servant is
House according to their needs under thedisqualified to be a member of House. The
‘able’ guidance of ‘speaker’ whogovernment servant should be relieved from
is part and parcel of ruling political power base, induties before he files nomination to avoid the
spite of the oppositions ‘stock’disqualification.
oppositions to almost every thing proposed byIn Joti Prasad v Kalka Prasad , it was held that a
the Government. Though, for namesake, theVice-chancellor of a University appointed by the
power to move any bill is vested in each memberGovernor in his capacity as the Chancellor of the
as ‘private member legislation’, it happensUniversity does not hold an office of profit, as the
very rarely. Most of the very importantgovernment had no power to appoint or remove
legislations are not discussed and it would behim. A teacher in a government aided school does
difficult to find ‘quorum’ needed fornot hold an office under the government , for the
accepting the bill.school, though under government’s control
The Law of “Office of Profit”and supervision, still has its own separate
Article 102 Disqualification for membership: (1) Apersonality, property and funds .
person shall be disqualified for being chosen as,The emphasis should be on the nature of the
and for being, a member of either House ofpost held and the possibility of conflict between
Parliament, a member of either House ofduty and interest of an elected member and to
Parliament: a) If he holds any office of profitappreciate the same the test is whether the
under the Government of India or thegovernment has power to appoint or dismiss the
Government of any State, other than an officeemployee who is being chosen as a legislator.
declared by any State, other than an officeAP Legislator’s Case
declared by Parliament by law not to disqualify itsIn Satrucharla Chandrasekhara Raju v Vyricherla
holder.b) if he is of unsound mind and stands soPradeep Kumar Dev. , Satrucharla was a single
declared by a competent court c) if he is anteacher in a primary school run by Integrated
undischarged insolvent d) if he is not a citizen ofTribal Development Agency by its project officer
India, or has voluntarily acquired the citizenship ofwho was the district collector. The ITDA is an
Foreign State or is under any acknowledgment ofregistered society with Government control. He
allegiance or adherence to a Foreign State. e) if hewas suspended for some irregularities. Later he
is so disqualified by or under any law made bywas elected to Legislative Assembly of AP. High
ParliamentCourt ruled that he held an office of profit and
Explanation: 1. For the purposes of this clause, adisqualified, because the state government has
person shall not be deemed to hold an office oftotal control over his post and position. Then the
profit under the Government of India or theSupreme Court reversed the order and held that
Government of any State by reason only that heit was not an office of profit, because the society
is a Minister either for the Union or for such State.has the authority to appoint and remove. Though
Explanation: 2: A person shall be disqualified forthe government also has some power it was not
being a member of either House of Parliament ifa direct control over the teachers themselves
he is so disqualified under the Tenth Schedule.under the scheme of ITDA. The right to appoint
Article 191 is also similarly couched except for theand remove the holder of office in many cases
difference that it would apply to Members of thebecomes an important and decisive test.
State legislative assemblies. These twoIf you apply this provision in a strict and narrow
explanations were amended by 52nd Amendmentconstruction, it will amount to preventing many
to the Constitution in 1985, restricting theprominent and other eligible persons to contest
application of this explanation to this article only.the elections which forms the fundamental basis
The Constitution did not define the termfor the democracy.
‘office of profit’. It is for the judiciary toThere may be further disqualification under any
interpret what is an office of profit and what isother law, besides the Constitution. The
not depending upon the practical situations of eachRepresentation of People Act debars a person,
and every case.who holds the office of a managing agent
An office of profit ordinarily means anmanager or secretary of a company or
‘office’ capable of yielding some profit tocorporation in the capital of which the government
the holder of the office. The disqualification arisesholds not less than 25% share, from being chosen
when a person: a) holds an office; b) the officeas a member of the Legislature to which the
under the Central and State Government; and c)Government is responsible.
the office is one of profit. Suppose a personJaya Bachchan’s Office and the Control of
makes profit but does not hold an office, he isGovernment The Presidents decision to disqualify
not disqualified. The Constitution also uses `officeSamajwadi Party MP Jaya Bachchan on a petition
of profit' at several Articles besides Articles 102,by a Congress activist who sought her
191. Article 18, on `Abolition of titles'. Clause (3)disqualification on the ground that she was
stipulates that no person who is not a citizen ofChairperson of the UP Film Development Council,
India shall, while he holds any office of profit oran office of profit kicked off the debate. The
trust under the State, accept without the consentPresident has issued such an order on the
of the President any title from any foreign State.recommendation of the Election Commission, who
And Clause (4) says, "No person holding anyis authorized to receive complaints and
office of profit or trust under the State shall,recommend the action as per the law. When
without the consent of the President, accept anyElection Commission examines the complaint, it
present, emolument, or office of any kind fromhas to depend upon the judicial decisions to
or under any foreign State." The next set ofinterpret the character of office, profit and
occurrences is in Article 58, on `Qualifications forcontrol of the government. On its
election as President'. While the first Clause in thisrecommendation the President has to act upon.
Article has a bunch of three conditions — "is aPrior to her election, she had resigned from the
citizen of India, has completed the age ofpost of Uttar Pradesh Film Development
thirty-five years, and is qualified for election as aCorporation. However, after the election she
member of the House of the People," the secondassumed the charge as chairperson of UPFDC on
Clause reads, "A person shall not be eligible forJuly 14, 2004. In deciding the Bachchan case, the
election as President if he holds any office ofCommission cited the rulings of the Supreme
profit under the Government of India or theCourt that five tests would determine whether an
Government of any State or under any local oroffice is an office of profit under the government.
other authority subject to the control of any ofThey are whether the government makes the
the said Governments." No Disqualificationappointment, whether the government has the
Explanation at the end of the Article clarifies whatright to remove or dismiss the holder, whether
is not a disqualification: "A person shall not bethe government pays remuneration, what the
deemed to hold any office of profit by reasonfunctions of the holder or does s/he perform
only that he is the President or Vice-President ofthem for the government and whether the
the Union or the Governor of any State or is agovernment exercises any control over the
Minister either for the Union or for any State."performance of these functions. The Apex Court
Article 59 on `Conditions of President's office'has also held that all these tests need not coexist
says, "The President shall not hold any otherconjointly for determining whether a post is an
office of profit." Similar taboo applies to theoffice of profit under the government. It is the
Vice-President too, in Article 64, and thecircumstances that have to be looked at and not
Governor, in Article 158. What is of immediatethe form. On the basis of documents and
interest should be Article 102 on `Disqualificationspleadings, the Commission noted that Mrs.
for membership'. It declares that a person shall beBachchan was entitled to a daily allowance while
disqualified for being chosen as, and for being, atraveling inside and outside UP and was entitled to
member of either House of Parliament "if he holdsa chauffeur driven car, free accommodation in
any office of profit under the Government ofstate government guest houses and local
India or the Government of any State, other thanhospitality on tour. The daily allowance of Rs 600
an office declared by Parliament by law not toinside UP was considered a source of profit to the
disqualify its holder; if he is of unsound mind... "incumbent. It did not buy the argument that
The phrase `office of profit under theBachchan was an affluent person and the benefits
Government' occurring in Article 102 has not beengranted to her by the government were
defined in the Constitution or any other statute ofimmaterial. "The issue is one of law and not the
Parliament. "Its scope and ambit have, therefore,financial status or standing of the person
to be gathered from the pronouncements ofappointed to the office of profit under the
courts and other competent authorities," notesgovernment," the Commission held and came to
the site and lists four criteria that are generallythe opinion that she became disqualified under the
followed when deciding disqualification questions.Constitution. The Role of Election Commission The
Manipur Law For example, the Manipur (Hill Areas)Election Commission, which is now flooded with
District Councils Act, 1971, states that a personseveral complaints against sitting legislators for
shall be disqualified for being chosen as a memberholding ‘office of profit’ has taken notice
of a District Council "if he is for the time beingof the petitions received against 10 CPI(M) MPs,
disqualified for being chosen as a member ofincluding the Speaker, and others and in most of
either House of Parliament or holds any office ofthe cases it has sought more information from
profit under any District Council." The Companiesthe petitions because "details were lacking". It is
Act, 1956 speaks of `office or place of profit'.reported that the Election Commission has asked
Section 204(5) explains that any office or place inthe petitioners including Mukul Roy of the
a company shall be deemed to be an office orTrinamool Congress to give details like the date of
place of profit under the company "if the personappointment of the MPs to the office said to be
holding it obtains from the company anything byheld by them along with documentary evidence to
way of remuneration, whether as salary, fees,substantiate their contention that they were
commission, perquisite, the right to occupy freeoffices of profit. The Commission’s jurisdiction
of rent any premises as a place of residence."will come into force when an MP or MLA
Universal Democratic Concept This is abecomes a subject of disqualification only if he is
democratic concept which has universal relevanceappointed to the post after he becomes a
in almost all democratic countries governed by themember of the House. In case, the MP or MLA
Constitution. For instance, Article 35 of the UShad been appointed before his election, then a
Constitution mentions the phrase. It is explained,complaint could only lie in the form of an election
as "An office to which fees, a salary or otherpetition in the High Court, which is also bound by
compensation is attached, is ordinarily an office oflaw of limitation. However it is the duty of the
profit". In Moser vs Board of County Comm'rs, aElection Commission and its officers to look into
four-decade-old US case, the Article wasthe nominations and study whether they hold any
explained: "The amount received is immaterialpost, which would disqualify them for contesting
since it is the presumably adequate compensationelections. Since it is constitutionally prescribed
derived from the office that fixes the characterdisqualification and strikes at the root of the
of the office as one of profit." From Down Undervalidity of membership, the election officials need
is the Parliamentary Members (Office of Profit)to check whether a particular contestant holds
Amendment Act, 1959. It was brought in toany such office under government. It is also the
amend the Legislative Assembly Act 1867 andduty of people in general and rivals in particular to
the Officials in Parliament Act 1896 . , as onebring such a fact to the notice of returning
learns from "A member is not to be taken to beofficers. An employee cannot contest. The
entitled to a fee or reward if the memberresignation, acceptance and due relieving orders
irrevocably waives for all legal purposes theare insisted upon as basic requirements to
entitlement to the fee or reward," it says. It iscontest. Why not the office of profit as
clarified that `fee or other reward' does not‘disqualification’ should not be looked into?
include "reasonable expenses actually incurred byJharkhand Dilemma
or for the member for any one or more of theA big chunk of Jharkhand MLAs were facing the
following — accommodation; meals; domesticproblem of disqualification, but heaved a sigh of
air travel; taxi fares or public transport charges;relief when on March 24, 2006 the Assembly
and motor vehicle hire." Every office of profit willpassed a Bill to protect them. At least 19
not operate as disqualification. It should be anJharkhand MLAs keeping their fingers crossed
office, of profit and then be ‘underever since their names were referred to Chief
government’ to disqualify a member ofElection Commissioner BB Tandon for "holding
legislative house either at Center or States. Theseoffices of profit". Earlier the State Advocate
three aspects have come up for decision beforeGeneral claimed that all the members of the
apex court.Assembly were shielded by a 1950 Act of
Sibu Soren and “under the Government”undivided Bihar. "Section 84 of the Bihar State
The expression ‘under government’ isReorganisation Act, 2000 mentions that all Acts
explained in Sibu Soren case: “with regard toenacted before creation of Jharkhand shall be
the "office of profit", what needed to be foundapplicable to the new State, and under Section 85
was, if the amount received by the personit gives the option for modification of any Act
concerned from the office he/she holds providesadopted by Bihar," according to the Advocate
some pecuniary gain, other than theGeneral. The 1950 Act exempted the office of
compensation to defray him/her out of pocketthe chairman or member of any committee or
expenses.” The Supreme Court set aside thebody appointed by the Central or a State
election of Mr. Shibu Soren, Jharkhand MuktiGovernment. The Bihar Legislature (Removal of
Morcha (S) leader to Rajya Sabha in June 1998,Disqualifications) Act of 1950 stipulated that
on the ground that he was holding ``an office ofholders of certain offices shall not be disqualified
profit' under the State Government as chairmanfor being chosen as, or for being, members of
of the Interim Jharkhand Area Autonomousthe Bihar Legislative Assembly or the Bihar
Council (JAAC) set up under the JAAC Act, 1994Legislative Council. But the big question is a
at the time of his filing of his ``nomination papers'condition stated in the schedule in the Act. It
and was thus disqualified to contest election tostates, "a person shall not be (and shall be
Rajya Sabha. Delivering the judgment, the thendeemed never to have been) disqualified...Provided
Chief Justice of India (CJI), Dr. A.S. Anand, onthat the chairman or member of any committee
close analysis of the relevant provisions of theor body does not receive any remuneration other
JAAC Act 1994, noted that Mr. Shibu Soren wasthan compensatory allowance." The Act only
appointed by the State Government as Chairmanallows "travelling allowance, daily allowance, or any
of the interim JAAC. He was to hold office ``atallowance in the shape of honorarium, which may
the pleasure of the State Government' whichbe paid to the holder of the office for the
``had the right to remove or dismiss the holder ofpurpose of reimbursing the personal expenditure
that office, besides controlling the manner ofincurred by him in attending the meetings of the
functioning of the Interim Council and providingcommittee or body or performing any other
funds for the Interim Council out of which afunctions as the holder of the said office." Senior
honorarium of Rs. 1,750/- per month - (besidesBJP leader and vice-chairman of the State Planning
daily allowance, rent-free accommodation and aCommission Saryu Roy claimed that except for
chauffeur driven car at the state expense) - wasthe Leader of the Opposition Sudhir Mahto, who is
paid to the appellant,' the CJI observed addingamong the 19 MLAs referred by Governor Syed
that all this ``was a benefit capable of bringingSibtey Razi to the CEC, "the remaining 18
about a conflict between the duty and interest ofmembers are protected by the act as they are
the appellant as a Member of Parliament - theeither chairman or member of any committee or
precise vice to which Article 102 (1)(a) isbody". As they were not sure of this protection,
attracted'. According to Article 102(1)(a) of thethe Jharkhand Government decided to move a bill.
Constitution - which deals with disqualifications toLike Uttar Pradesh the Jharkhand legislature also
being chosen as and for being a member of eitherpassed a law to protect their legislators without
House of Parliament - (1) A person shall belosing the second ‘office’ amidst protests.
disqualified for being chose as, and for being, aThere was another similarity in opposing the Bill as
Member of either House of Parliament - (a) if hethey were intended to save the members of
holds any office of profit under the Governmentruling party. In the UP assembly when the
of India or the Government of any State, otherMulayam Singh Yadav government passed a bill
than an office declared by Parliament by law notaimed to protect SP leaders Jaya Bachchan and
to disqualify its holder; The Bench, which includedAmar Singh’s Rajya Sabha seats, there was
Mr. Justice R.C. Lahoti and Mr. Justice Shivaraj V.a similar opposition. Amidst opposition uproar and
Patil, affirmed a verdict of the Patna High Courtpandemonium, the Arjun Munda government also
which allowed an election petition from Mr.passed bill to save four NDA MLAs holding offices
Dayanand Sahay against the election of theof profit.
appellant to Rajya Sabha and, instead, declared Mr.Interestingly, the UP bill passed on March 9, 2006
Dayanand Sahay duly elected. The Bench, inis called the UP State Legislature (Prevention of
dismissing an appeal from the appellant against theDisqualification Amendment) Bill 2006, whereas
HC's verdict, said that ``both Articles 102(1)(a) andJharkhand’s bill is called Jharkhand State
Article 191(1)(a) of the Constitution wereLegislate (Removal of Disqualification) Bill 2006.
incorporated with a view to eliminate or in anyThe UP Bill exempts 79 posts The UP State
event reduce the risk of conflict between dutyLegislature (Prevention of Disqualification) Act,
and interest amongst Members of the Legislature1971, amendment bill introduced with
so as to ensure that the concerned legislator doesretrospective effect from January 1, 2003, which
not come under an obligation of the Executive, onthe assembly passed on March 9. It exempt
account of receiving pecuniary gain or profit fromheads of 79 corporation, boards and councils from
it, which may render him amenable to influence ofposts of profit. In the amendment, the
the Executive, while discharging his obligations as agovernment has proposed that the term 'daily
legislator.' (Article 191(1)(a) lays down similarallowances' be changed to 'honorarium' so that
disqualifications for being chosen as or for being aparliamentarians can financially benefit from more
Member of the Legislative Council or Assembly ofthan one office without attracting the provisions
a State). Sibu Soren urged that even if the officeof disqualification in the Act. Under the new bill, the
held by him as Chairman of the Interim Councilposts held by legislators in boards, corporations
was to be construed as ``office of profit underand other such offices will be not be counted
the State Government', the disqualificationunder the category of office of profit. A total of
provided for under Article 102(1)(a) stood remove22 posts have been included in the list, which will
by Parliament (Prevention of Disqualification) Act,prevent the disqualification of any legislator. By
1959, since as Chairman of Interim Council, hepassing this bill, the Government has not only
enjoyed the `status' of a Minister. The argumentsaved the four legislators but the government
was rightly repelled by the High Court observingitself, because it was having a wafer thin majority
that nowhere in the JAAC Act was it providedin the house. While the UP Governor cleared four
that the Chairman of the Interim JAA Councilother bills, he decided to seek the opinion of legal
enjoyed the status of a Minister, the Bench said.experts. Though the bill could not save the seat
If the legislators hold office of profit under theof Jaya Bachchan in Rajya Sabha, it provides a
government, they have to toe the line ofperfect legal ground for other members who are
government and cannot act independently. Thesimilarly charged or the complaints against whom
cabinet ministers, though members of the House,the Election Commission is considering. Consensus
need to lead the house in securing consent toto amend the law The UPA Government initiated
their measures, plans, programmes and budgetthe process to seek consensus to amend the law.
allocations. They will defend every figure andThe Government is considering whether to
provision made by the Government. Theamend the definition of office of profit under the
Members, though belong to ruling party, areParliament (Prevention of Disqualification) Act,
expected to discuss the defects of the policy or1959, or bring in a fresh Bill. Most of the parties
the bills effectively and thus contribute tothat Parliament and not the Election Commission
unbiased legislation development. If the legislator isbe given the right to determine what constitutes
given an office of profit by the Government, hean office of profit, according to Mr. Dasmunsi, the
would never talk against the pre-fixed policies andUnion Minister who discussed with the parties. The
never bother to know the difficulties flowing fromLeft parties favoured a comprehensive Bill before
it to the people. This noble idea of keeping theParliament. Abani Roy (RSP) favoured an all-party
office of membership of legislative houses freemeet. Even the main opposition BJP, and its allies
from influences of profitable offices, is being usedwanted the term ‘office of profit’ be
as a political strategy to pull the legs of MPs ondefined, which means giving exemptions.
opposite side. Because some one pointed out theImpact of these Amendments
office of profit of Jaya Bachchan, complaintsThese attempts of UPA Government at the
against Sonia Gandhi, VK Malhotra, Somnathcenter to achieve consensus to amend the law to
Chatterjee etc will naturally be generated.facilitate some MPs to hold additional office of
Any government, especially the coalitions, attemptprofit, indicates the climax of the trend of the
to retain the legislators in their flock by offeringgovernments to dilute the spirit of the
them posts of corporation chairmen and publicConstitution. Already Uttar Pradesh and Jharkhand
sector political appointments such as member ofmade the laws permitting legislators to hold
so and so board of directors, chairperson of ahundreds of offices of profit under the
temple trust etc. These offices of profit underGovernment. If the Parliament also passes a law
government are meant for silencing the dissidencecarefully protecting all prominent members, every
and satisfying the political colleague. This is thestate will follow the suit and there will be spate of
need of either side of politics in parliamentarylegislations in states totally circumventing the
democracy.Articles 102 and 191, which kills the independence
Government under the Sonia, not Sonia’sof legislators and permits the executive to allure
office under ‘government’the MPs. All the political parties are generally in the
The people who are the legal counsels of Mrssame situation as the Congress and Samajvadi
Sonia Gandhi say, her position as Chairperson ofParty are. Hence there would be unprecedented
National Advisory Council could be an office andunity and consensus among all the parties to
office of profit but definitely not “under theprotected their political interests of present and
government’ and hence she can not befuture. The casualty is the spirit of the
disqualified. The position is of cabinet rank, whichconstitution. The political parties, which pounced
has several financial benefits and allowances fromupon Jaya Bachchan and Sonia Gandhi, have no
the government. It is true that the presentmoral status to reach an agreement to dilute this
government it self is under the influence of Soniaconstitutional ideal.
Gandhi, and Sonia Gandhi as Chairperson of NACRemoval of every disqualification forms basis of
not at all under the influence ofconcentration of power. It appears that the purity
‘government’. That is so because of herand independence of legislative membership is the
unique position as the sole leader of congresstarget of every political party so that their people
party duly inherited from Rajiv Gandhi and otherenjoy more than one position without threat of
illustrious personalities above the line. Any other‘disqualification’. Generally it is commented
person with the same rank would be definitelythat politicians aim at next election while the
under the influential power of executivestatesmen work for next generation. Our
government, which is objectionable under Articlepoliticians’ aim is much narrowed down, as
102. Even if the law is amended and declare thatthey are interested in securing couple of power
positions such as NAC chairperson are not officescenters to their members.
of profit, the spirit to make legislator anThe people who argue for reforms and
independent uninfluenced and unbiased person, failscorruption-free-political-offices need to develop a
miserably. Those who demanded disqualification ofcomprehensive vision. While a few talk about
MPs for holding ‘double’ positions arehorse-trading for hammering out a coalition out of
eager to ‘define’ an ‘office ofa hung house, some others discuss the cleansing
profit’ and ‘declare’ some office ofof legislatures by weeding out criminals. On one
profit are not so. Because each party decoratedhand the sting operations hit at bribe taking MPs
their legislators with hundreds of plum positions inputting a total full stop for their political career,
Government when they were in power. Congressand on the other, cabinet positions and
party, naturally, stands on the top for having ruledcorporation chairmen posts become the most
the country for several decades, in appendingoffered allurements to switch the sides, in spite of
offices of profit to its own party legislators toa stricter anti-defection law. The present
keep the flock together or to nip the dissidence incontroversy on office of profit is just one facet
budding stage.of political corruption, which is totally in
Judicial Decisionscontradiction to the letter, and spirit of
Judicial decisions are invariably protecting theconstitutional governance. The Parliament
politicians by interpreting the offices they held asMembers (Removal of Disqualification) 1959 needs
not offices of profit. It is a paradox that theno amendment. The expression ‘office of
courts could caught the small fry like teachers,profit’ needs no definition as the judiciary has
nurses or doctors getting elected to house whilealready explained the criteria where an office has
holding that employment. Poor fellows ended upto be termed as an office of profit under
losing both the employment and the membershipgovernment, If at all it is amended, the
of legislature. There were lengthy litigationsexpression should be given the meaning which is
initiated by politically disgruntled or defeateddeliberated and concluded by the judgments. The
elements using this noble provision for strategiclist, which is, now existing under the 1959 law
purposes.should not be expanded because it dilutes the
In Yugal Kishar Sinha v Nagendra Prasad Yadav ,spirit of separation of legislature from executive.
it was held that a lawyer engaged by theAny attempt to exclude the corporation chairman
Government to appear in a case on its behalf andpositions and other public offices from the
paid fees by it, is not holding any office of profitoperation of disqualification would be
and thus could not be disqualified. Similarly aunconstitutional and not justified.
person holding a permit to ply buses, a licensed