Office of Profit and the Legislatures

see previous articles here and here



Cleansing the Polity or changing rules of accountability?


The situation arising out of the recent turn of events has indeed created conditions that could result in widespread disqualifications within the Parliament as well as State Legislatures.

Although the political parties are trying to find ways and means to avoid such a possibility, it should not be forgotten that the situation was brought about precisely because of legislators of all these parties brazenly ignoring the basic provisions of the Constitution that they are sworn to protect. The liberal dispensations of offices of profit were given for patronage and for the very reasons that the Constitution makers wanted to avoid. These parties are now rushing to amend the law not only to protect those against whom the complaints have already been made to the President of India, but also to see that such embarrassments are avoided in the future.

As consultations amongst the political parties, none of whom - whether Congress, BJP, the Left or others - can lay claim to political morality at least in this instance, are continuing, it is increasingly becoming apparent that a simple addition to the list of exempted positions will not serve the purpose.

Considering that ALL the major parties have vested interests in protecting their own legislators even for the future, what is likely is that, apart from additions to the list of exempted positions, a convenient definition of "office of profit" would also be added in the Parliament (Prevention of Disqualification) Act, 1959. A similar exercise may be done by the State Legislatures. Beyond that, the people of India should not be surprised to see one more amendment to the Constitution. The possible amendment could involve shifting the power to determine the question of disqualification of a sitting member of a house for being appointed to an "office of profit", from the Election Commission to the Parliament or the State Legislature, as appropriate, although this would give rise to other issues.

If such a change does happen, there is a chance that the delicate checks and balances that exist under the Constitution now may be disturbed.

Even if the decision to amend the 1959 Act or the Constitution rests with the Legislators of the day, wider consultations and deeper thought are necessary, where constitutional and legal experts and academicians should get actively involved rather than simply leaving the politicians to find devious ways to protect their "offices of profit, power or privilege" on the pretext of selflessly 'serving the people'.