Constitution

This article has been written by Navya Jain. It discusses the disqualification of a member of a parliament on account of holding an office of profit under the government, which has been in the limelight for a really long time now. The Court has resolved this conundrum not once but several times. This article also evaluates and sheds light on the various concurring opinions of the Supreme Court on what constitutes an office of profit under the government and when it can cause a member to be disqualified. 

Introduction

The controversies surrounding the disqualification of any Member of Parliament (hereafter referred to as “MP”) keep coming back and forth in the news very often. There are not one but several instances where an MP may have voluntarily given up their seat or have been declared to be disqualified owing to a certain condition, as enumerated in Articles 191 or 102 of the Constitution of India. Ever since 1988, a total of about 42 Members of Parliament have been removed from the Parliament using the disqualification provisions. The first person to ever be disqualified was Mr. Lalduhoma, chief of the Zoram People’s Movement, on account of anti-defection provisions. Another instance includes the resignation of Mrs. Sonia Gandhi from her Lok Sabha seat. While being a Member of Parliament, she also held the post of chairperson of the National Advisory Council, which posed a threat to her political career. Therefore, she voluntarily gave her resignation as a member. A similar instance again came across the news when former Chief Minister of Bihar, Shri Lalu Prasad Yadav, was disqualified from Lok Sabha on account of his conviction in the fodder scam. Yet another instance includes the disqualification of Jharkhand Mukti Morcha leader Shibhu Soren in 2001 for holding an office of profit while sitting as a MP. Holding an “office of profit” is one such ground for disqualifying an MP. Let us understand this concept better with a detailed analysis of the judgement at hand. 

Background of the case

It is a well-known fact that the Indian Constitution is a bag of borrowed Articles from various sources. The legislators delved into the Constitutions of several nations to formulate what we call today the Indian Constitution. Most of the political features, such as a bicameral parliament, the President as nominal head, speaker of the Lok Sabha, writ jurisdiction, position of a Prime Minister, etc., have been borrowed from the United Kingdom. Similarly, the concept of “office of profit” is not original to the Indian jurisdiction. Just like several borrowed features enshrined in the Constitution, the feature of “office of profit” also came to be borrowed from the UK jurisdiction. The concept of “office of profit” originated from the Succession to the Crown Act, 1707. It was first observed in this Act that any person holding any office or a place of profit under the aegis of the Crown was considered to be disqualified to contest or sit as a member of any House. This Act was later replaced by the House of Commons Disqualification Act, 1957. The whole objective behind the introduction of such a provision was to ensure that the members of parliament did not succumb to monetary advantages and compromise their allegiance to the public. The endeavour was to enable the members of parliament to perform their duty fearlessly without having to worry about any kind of pressure or conflict of interest in any form. With that thought in mind, the Indian constitutional framers decided to incorporate this provision in the Constitution in the form of Articles 102 and 191.

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At the time of enactment of the Constitution of India, the bare test of Article 102 manifested that any person (i.e. a Union or state minister) holding an office of profit would be disqualified to become a member of parliament. Later, the legislators realised that the bare text failed to cover the deputy ministers under its ambit. Therefore, in order to rectify this error, the legislators proposed and considered formulation of Parliament (Prevention of Disqualification) Act, 1950. This was later followed by the Parliament (Prevention of Disqualification) Act, 1951 whereby Section 2 enumerated certain offices which were never deemed to be disqualified for the purpose of holding such offices while being the Member of Parliament. This Act was given a retrospective effect vide date 26.1.1950. 

Facts of Consumer Education and Research Society vs. Union of India & Ors. (2009)

The above-mentioned writ petitions were filed under the aegis of Article 32 of the Constitution of India challenging the constitutional validity of the Parliament (Prevention of Disqualification) Amendment Act, 2006 to the Parliament (Prevention of Disqualification) Act, 1959. The aforementioned Act made amendments to the list of ‘offices of profit’, holding which would not attract any disqualification for the ministerial position in the parliament.

Origin of the Amendment Act

The need for the Amendment Act was not manifested until the appointment of Mrs. Jaya Bachchan as chairperson of the Uttar Pradesh Film development Council vide order dated 14.7.2004. On account of the fact that Mrs. Jaya Bachachan was a member of the Rajya Sabha and held an office of profit in the abovementioned capacity, a complaint was filed seeking her disqualification of membership from the Parliament under Article 102(1), Constitution of India, 1950. Resultantly, the procedure enunciated in Article 103(1), Constitution of India, 1950, was followed and the matter was referred to the President for a final decision. The said presidential order upheld the disqualification of Mrs. Jaya Bachchan on the account of holding an ‘office of profit’.

This presidential order was then challenged before the court in the matter of Jaya Bachchan vs. Union of India (2006), whereby the court rejected the challenge and upheld the disqualification of the candidate. It was after this case that it was discovered that there were a large number of Members of Parliament who were very likely to attract the same disqualification for holding the offices of profit. Therefore, to rectify the same, a bill titled, The Parliament (Prevention of Disqualification) Amendment Act, 2006, was introduced, which was hastily passed by both houses in a matter of days. The said Bill was further passed by the President on 18.8.2006 thus bringing the Amendment Act into existence. As a part of amendment, the Amending Act inserted several clauses in the form of Section(s) 2(ad), 2(k), (l), (m). All of these amendments were given a retrospective effect, bringing them into effect from 4th April, 1959. 

Issues raised

Based on the factual matrix of the case, the Hon’ble Supreme Court formulated the following questions to be deliberated upon, namely:

  1. Whether exempting a list of “offices of profit” in retrospective effect is violative of Articles 101–104, Constitution of India, 1950?
  2. Whether this exemption is violative of the ‘constitutional convention’ of seeking an opinion of the Joint Committee?
  3. Whether the said Amendment Act, which exempts only certain “offices of profit,” is violative of Article 14 on account of being a colorable legislation?

Arguments of the parties

Petitioners 

  • The petitioners were then represented by the senior counsels, Mr. Harish Salve and Mr. Ravinder Srivastava. They challenged the amendments on account of retrospective inclusion of a new list of offices of profit. This was considered to be violative of Article 101-104, Constitution of India, 1950, enumerating the provisions concerning disqualification of the members of Parliament.
  • The petitioners vehemently argued that giving retrospective effect to the amendments would mean that those members of Parliament who had ceased to be Members would now again be automatically inducted into the Parliament without even contesting any elections. This would tantamount to wrongfully reviving the membership of the Members of Parliament by deliberately enacting legislation in their favour. Considering that the parliamentary seat had become vacant on account of a constitutional disqualification, enacting legislation to overcome this hindrance would amount to violation of Articles 102(1) and 101(3)(a), Constitution of India, 1950.
  • The petitioners further submitted that ‘wholesale exemption’ of 55 offices, without having made any consultation with the joint committee as formulated under the aegis of the Bhargava committee since 1955, was violative of the constitutional convention formulated since 1955.

Respondent  

  • The petitioners were opposed by senior counsels, Mr. Gopal Subramoniam and Mr. Mohan Parasaran. They submitted that the Parliament has due power to enact a law with retrospective effect. They argued that a member’s seat would not be considered vacant per se merely because of the fact that the Member has incurred a disqualification because of “accepting an office of profit”. Until or unless, the President of India, with the aid and advice of the Election Commission of India, declared the alleged disqualification, such member of Parliament shall not be deemed to be disqualified.
  • As for the Amendment Act being violative of Article 14, it was argued that there was no such “constitutional convention” in form of seeking the Joint Committee’s opinion on inclusion of  an ‘office of profit’ in the exempted list. Even if it were to be assumed that such practice existed, nothing in law can prevent the parliament from formulating or amending legislation to add or remove any “office of profit” in the exempted list, as laid down by the provision of Article 102 (1)(a).

Important laws discussed in Consumer Education and Research Society vs. Union of India & Ors. (2009)

Article 14 of the Indian Constitution 

Article 14 deals with the principles of “equality before law” and “equal protection of law”. It is one of the cornerstones of fundamental rights enshrined in the Indian Constitution. 

The principle of “equality before law” implies that all persons, irrespective of their status, rank, or position, are subject to the same laws and are treated equally by the law. It prohibits discrimination and ensures that no person or class of persons receives special treatment under the law. On the other hand, the principle of “equal protection of law” suggests that the laws of the land should be applied equally and impartially to all citizens without any discrimination based on race, religion, caste, gender, or any other arbitrary distinction.

It is, however, important to note that this Article does not have universal application for all individuals. The State can make reasonable classifications for legitimate purposes, provided that the classification is based on intelligible differentia and has a rational nexus with the objective sought to be achieved by the law. Thus, the principles of equality before law and equal protection of the law are not absolute and are subject to reasonable classification based on intelligible differentia. 

Article 101 of the Indian Constitution 

This Article talks about the vacancy of seats in the Parliament or State Legislature under certain circumstances. Clause (3) of the Article provides that a person’s seat in the Parliament may be vacated if they are disqualified under the grounds mentioned in Article 102. Article 102(1)(a) provides for the vacating of a seat if the person holds an office of profit under the central or state government, unless the Parliament declares such office to not disqualify its holder. Hence, the person is liable to vacate their seat if they hold an office of profit as provided under Article 102. 

Article 103 of the Indian Constitution 

Article 103 provides that if there are any questions with respect to the disqualification of a member under Article 102(1), the question may be referred to the President and the decision of the President shall be final. Clause (2) provides that the President may consult the Election Commission to arrive at his decision. 

Article 104 of the Indian Constitution 

Article 104 provides that if a person who is disqualified under Article 102(1) sits or votes in either house, then they shall be liable to a penalty of Rs. 500 for each day that they sit or vote as debt to the Union.

Article 191 of the Indian Constitution 

Article 191 provides grounds for disqualification of a member of legislative assembly. Article 191(1)(a) provides for disqualification if a person holds office of profit under central or state government. 

Judgement of the case

Whether exemption of “office of profit” violates Articles 101-104

As for the power of the Parliament to enact legislation giving retrospective effect, the court upheld that the Parliament is very competent to do so. Therefore, in the case at hand, to argue that the parliament does not have the authority to enact legislation capable of removing the disqualification is untenable. The court relied on Srimati Kanta Kathuria vs. Manak Chand Surana, (1969), whereby the court expressly enunciated the power of the State legislature and Parliament to enact laws having retrospective effect in this context. The only restriction that the legislators ought to take into account is that enactment of such law must not be in violation of any of the fundamental rights. A bare reading of Article 191, Constitution of India, 1950, is also suggestive of the existing power of the state legislature and the Parliament to enact such a law to exempt any “office of profit.”. Thus, it is abundantly clear that the act of enactment of this amendment act with retrospective effect is not ultra vires the scope of powers of the Parliament. The court, relying on the case of Indira Nehru Gandhi vs. Raj Narain, (1975), held that there is nothing that forbids the parliament from making any law prospectively, whose operation may commence retrospectively.

While relying on Election Commission, India vs. Saka Venkata Subba Rao & Union of India, (1953), and Brundaban Nayak vs. Election Commission of India, (1965), the court reaffirmed the applicability of Articles 101 and 102 and clarified that the operation of both these articles only commences after the MP has already been elected. In other words, both these articles refer to the vacation of seats wherein the members have been duly elected. In the event where a candidate was infested with a disqualification at the time of filing his candidature for election, any challenge to such candidature would not fall under the purview of either of these articles. This would be a separate subject matter, to be addressed via an election petition before the High Court.

The question of whether an incumbent MP is disqualified or not is a mixed question of law and fact. It is only after the President has rendered his decision under Article 103, declaring that the member has incurred disqualification, would the said member’s seat fall vacant owing to the same. Such a removal and vacancy of the seat is self-operative and automatic. As far as the effect of the decision of the president is concerned, the said decision is merely adjudicatory in nature. The president’s decision is not capable of ordering the removal of the disqualified member from office. It is merely a declaration of the removal, which would be effective from the date on which the member became infested with the disqualification. Thus, as soon as the president declares that the incumbent MP is disqualified due to holding the office of profit, s/he shall cease to be  a Member of Parliament. This cessation shall take effect from the date the member accepts the office of profit. As a consequence, the seat once occupied by the said MP would become vacant.

Whether exemption violative of ‘Constitutional Convention’ of seeking opinion of Joint Committee

The court reiterated and reaffirmed the legal tenets that the Parliament has all the authority to enact any legislation with a retrospective effect as well. The act of seeking the opinion of the Joint Committee is not a ‘constitutional convention’. It was merely a parliamentary procedure followed formerly. It is true that it was bypassed before passing the impugned Amendment Act; however, this does not have any effect on the validity of the Amendment Act. This indeed cannot render the amendment act unconstitutional. The Parliament is rightfully competent to enact this legislation as long as it is confined to constitutional legalities. 

Whether Amendment Act is violative of Article 14

The doctrine of colourable legislation means that whatever is prohibited directly cannot be accomplished indirectly either. The whole objective behind this doctrine is to limit the excessive use of power. In the event that the judiciary comes across any such legislation, it has the authority to strike it down on account of a violation of Article 14. In the case at hand, the Amendment Act, which exempted certain offices of profit, was under the scanner. The court examined the list of exempted “offices of profit” and arrived at a conclusion that there is no commonality or well defined ground on which the impugned offices were exempted. There are several offices of similar nature that have been excluded from the purview of exemption. Each office of profit may have different consequences and effects to follow. Besides, inclusion or exclusion of either office solely falls within the purview of the legislative domain. This matter is decided upon by Parliament. There is no possibility of defining which genre of offices should ideally be exempted or not. Therefore, to say that the Amendment Act was enacted with the tinted intent of accomplishing what the Parliament could not rightfully do, would be a flawed argument.

Thus, examining all three issues at hand, the court concluded that the instant writ petition is without merit and the impugned amendment act is constitutionally valid. Therefore, the writ petition was dismissed.  

Analysis of Consumer Education and Research Society vs. Union of India & Ors. (2009) 

Having discussed the entire judgement surrounding disqualification incurred owing to occupying an “office of profit” under the government, it becomes imperative to understand this concept. The term is not specifically defined anywhere in the constitution or in any other legislation. For instance, the United States Constitution defines it as an office to which fees, a salary or other compensation are attached. As for Indian jurisdiction, the judiciary has defined it as an office that has some sort of pecuniary gain attached to it. In the case of Statesman (P) Ltd. vs. H.R. Deb and Ors, (1968), the Court defined office as a certain position having corresponding duties attached to it. In the case of Great Western Railway Company vs. Bater (1922), Justice Rowlatt defined office as a “subsisting, permanent, substantive position, which had an existence independent from the person who filled it, which went on and was filled in succession by successive holders.”

The Hon’ble Court has laid several guidelines to determine whether an office is an office of profit. In the case of Chandrasekhar Raju vs. Vyricherla Pradeep Kumar Dev and Another (1992), the court examined the case of the election of a primary school teacher. The said school was run by the Integrated Tribal Development Agency. Therefore, the government sanctioned funds for the school. The question was whether the position of the teacher in the school would be considered to be that of an office of profit under the government? The court concluded that, undoubtedly, the government had some intervention in the school’s operations but it did not affect the appointment of the teachers. Thus, this post cannot qualify as an office of profit under the government. While deliberating over this issue in depth, the court illustrated a test to resolve this conundrum. It opined that for any position to be titled as an office of profit under the government, it must fulfil the following criteria:

  1. The government must have direct control over appointment and removal of the holder of office. By direct control, it is meant that the government itself should hold the power to appoint or dismiss the holder. Mere control over the appointing authority will not qualify as government’s control.
  2. The remuneration for the same must be made from government funds.
  3. The holder must perform some function for the government.
  4. The government must have some control over the functions performed by the holder. 

With that being said, the court also clarified in the case of Biharilal Dobray vs. Roshan Lal Dobray (1984) that there need not be a master-servant relationship between the government and the person. For a person to be presumed to be holding an office of profit under the government, it need not be in the service of the government per se.

The court has come to resolve several cases with the application of this test. For instance, in the case of Kanta Kathuria vs. Manak Chand, (1969), it was concluded that a member of parliament practising as an advocate shall not be deemed to hold an office of profit under the government. Such a person shall not be deemed to be serving the government but the court. Thus, s/he would not be infested with the disqualification enumerated under Article 191.

Resignation from an office of profit 

With the analysis of the judgement, it is absolutely clear that a member of parliament would either have to give up on his/her seat of parliament or the office of profit in order to retain the seat. Any member who holds an office of profit under the government while filing his papers for nomination stands disqualified at the first instance itself, as held in the case of Ram Murty vs. Sumbha Sardar, 2 E.L.R. 330. Presumably, if one does not incur any such disqualification at the time of filing or voluntarily chooses to resign the office of profit, it must be submitted before the competent authority. Failure to do so would make the resignation infructuous and ineffective. As a result, it shall be presumed that there was no resignation filed and the member shall be deemed to still occupy the office of profit, thereby attracting the disqualification as held in Thakur Daoosing vs. Ramkrishna Rathor, 4 E.L.R. 34.

Positions not considered to be office of profit 

In the case of Divya Prakash vs. Kultar Chand, (1975), the Court held that a Member of Parliament, elected as a chairman in a state Board of school education in an honorary capacity, cannot be deemed to be occupying an office of profit under the government. Hence, such a member shall not be deemed to be disqualified.

Similarly, in Daulat Ram vs. Maharaja Anand Chand (6 E.L.R. 87), where a former ruler of an Indian state was entitled to receive an amount annually as a privy purse from the Government, the court disregarded the same as occupying an office of profit under the government.

Conclusion 

With the analysis of the judgement, we have learned the procedure and disqualifications concerning the seat of a member of parliament. We also learned the due procedure of law to be followed in case of such disqualification. The author completely concurs with the opinion of the court on upholding the validity of the Amendment Act, however, one cannot help but ignore how this power can be misused to the benefit of their respective candidates. Considering that Parliament has been upheld as being vested with the power to formulate legislations with retrospective effect, it is not difficult to imagine where the ruling party may use this provision to their advantage. It may so happen that, in order to prevent their ministers from incurring any disqualification, the ruling party enacted such an amendment act to include their “offices of profit” under the exempted list. It is expected that in such a scenario, the court will exercise due caution in evaluating such a situation and striking it down timely in the interest of the public. Rather, we may say that the court is very much conscious of such possibility, which is perhaps why it cautions the legislators against the use of these powers reasonably while ensuring that it does not defeat the letter and spirit of the law.

Frequently Asked Questions (FAQs)

What is the disqualification for a Member of Parliament?

As per Article 102, a person shall be deemed to be disqualified for being a member of the Parliament:

  1. He/she holds any office  of profit under Government of India or any State and the same has not been exempted by the Parliament from incurring any disqualification upon the member
  2. He/she is of unsound mind or has been declared by the court of being an unsound mind;
  3. He/she is declared to be an undischarged insolvent;
  4. He/she is not a citizen of India or has come to acquire the citizenship, acknowledgement or an allegiance of a foreign state;
  5. He/she is disqualified hold the position under any other statue formulated by the Parliament;
  6. He/she is disqualified under the anti-defection law enumerated in the tenth schedule of the constitution.

Who decides the question regarding the disqualification of the Member of Parliament?

As per Article 103, the President, after seeking the opinion of the Election Commission, decides upon the matter of disqualification of a Member of Parliament.

What are constitutional conventions?

Constitutional conventions refer to the unwritten rules or traditional practices followed in a State. They are not encompassed in the form of legal statutes or rules, either. Yet they are binding on the State. These conventions are very useful, especially in the situation where the constitution has failed to anticipate and provide solutions. They mostly facilitate the regulation of the interplay of relationships between the executive and legislature. 

Whether the seat of the Member becomes vacant as soon as he/she accepts the office of profit?

No, the office does not immediately become vacant upon the acceptance of the office of profit. For a disqualification to take effect, it is important that it be challenged and adjudicated upon. This may be done via an election petition at the time when the candidate is filing his/her nomination papers. In the event where the candidate has presumed the office of profit after his/her election as a MP, the same may be challenged before a competent court as well. In a nutshell, it is important to pose a challenge in order to effectuate the disqualification. If it goes unnoticed or remains unchallenged, then such a member would continue to hold the office despite his/her disqualification.  

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