Thursday, May 24, 2007

About Offices of Profit Issue

On 8 May 07, at 23:19, Aishwarya was asking me to explain the provisions in brief of the Office of Profit bill, i.e., the amendment proposed in 2006.

So I did a bit of research on the issue and here I go.

Those of you who have got the time and patience to go through what I have gone through to write this piece, please go ahead and follow this link:

A lot of ruckus was raised on this issue. Under the Constitution, the President decides whether a sitting member has incurred disqualification in consultation with the EC.

Article 102 (1)(a) bars an MP from holding any office of profit under the government of India or in any state other than an office declared by Parliament by law not to disqualify its holder.

Further Parliament passed an Act in 1959 through which it declared holding certain offices of profit under the Government as not disqualifying the holders thereof for being chosen as, or for being, Members of Parliament. You can read this act here. It is a small 7 page enactment. Many offices were mentioned in the Schedule to the enactment. Any person holding these office/s would not be disqualified from being or from being chosen as an MP.

It all started with a complaint lodged by one Mr. Madan Mohan. He contested against Jaya Bachchan to become a Rajya Sabha MP and lost the election from UP. Jaya Bachchan went on to become the Rajya Sabha MP from UP on the backing of Samajwadi Party. This was sometime in 2005. Based on his complaint the Election Commission has recommended Mrs. Bachchan's disqualification on the ground that she was holding an office of profit -- Chairperson of UP Film Development Board.

It was then that all hell broke lose. Many prominent personalities including the present Speaker of the Lok Sabha and the Chairperson of UPA, Sonia Gandhi etc., were found holding ‘Offices of Profit’ while still being MPs. Because the UPA had many people who were holding ‘Offices of Profit’, it was decided to amend the 1959 enactment (it was also amended on a couple of occasions earlier) and bring in all those ‘Offices of Profit’ being held by the MPs under the exempt category.

When the bill was presented for the first time to the President, he returned it to Parliament. He wanted the Bill to be reconsidered in the context of a “settled interpretation” of the expression ‘office of profit’ in Article 102. Adding that the issue called for comprehensive and fair criteria applicable across all states and UTs in a transparent manner. Among other concerns, he also wanted Parliament to consider whether an amendment seeking to be applicable retrospectively, is indeed sound in law. Under Article 11, the president may return a bill once. If it is passed again, he has no power to withhold his consent to it.

Parliament cleared the bill and has sent it again to the president. He had to give assent to it. This law exempted 56 positions held by about 40 MPs of various political parties. With this, all the petitions pending before the EC on the issue have become infructuous. As did the JPC (Joint Parliamentary Committee) that was appointed by the Lok Sabha to go into the issue.

Through the amendment a three sub-sections viz., (k), (l) and (m) were introduced in Section 3 of the original Act. A table also listing out all the offices of profit the holding of which would not disqualify the person from being an MP, is appended to the enactment. See the enactment as it stands with the amendment incorporated here.