INTRODUCING PENALTY UNITS IN THE INDIAN PENAL SYSTEMOctober 18, 2020
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A British political theorist, Jean-Louis de Lolme, once said, “The Parliament can do everything but make a woman a man and a man a woman!” If the above sentence were to be true of India, our Constitution would lose its meaning and significance. Basically, it stands to mean that absolute power corrupts absolutely. Most parliaments of the world, besides requiring certain qualifications, regard particular categories of persons as ineligible because the posts that they hold are termed to be incompatible with being a Member of Parliament. Down the ages, certain qualifications and disqualifications have become an inherent part of the law for the selection of the members of the law-making body of any country. These conditions of eligibility usually reflect a legitimate concern of the people to select suitable candidates democratically. The independence of the members needs protection. The problem is to determine the extent of the ineligibility.
It was felt that the ineligibility relating to the holding of an office other than as a Member of Parliament should be vital since they should be independent and be able to work without any influence and prejudice. They should be free of control from the executive wing of the government. A provision requiring such a disqualification is needed to protect the democratic fabric of the country from being corrupted by the Executive. As a result, our representatives must be able to discharge their functions without fear or prejudice.
Origin of the Condition
The origin of the law regarding disqualification of a holder of an office of profit dates back to the English Act of Settlement of 1700. The Act was subsequently re-enacted as the Succession to the Crown Act, 1707. Obviously, this was done to prevent the government from exercising undue influence over the Members of Parliament.
The author has found the object of such law to be summarised in three broad reasons as follow:
the incompatibility of certain non-ministerial offices with the membership of either of the Houses
the need to limit the control or influence of the Executive over the Legislative wing of the Government
the essential condition stipulating the maximum number of ministers as a percentage of the total members of the House (discussed henceforth)
The term ‘office of profit’ has not been defined in the Constitution or the Representation of the People Act, 1951, or the Parliament (Prevention of Disqualification) Act, 1959. We can only infer the meaning from the courts’ interpretations.
For instance, the Rajasthan High Court has held:
“It is not necessary that there must be a fixed pay attached office; if the holder can charge any fee or remuneration exercising the functions of the office, then he holds an office of profit. Also, the word ‘profit’, here, does not necessarily mean any remuneration in cash but it certainly means some kind of advantage or gain, which can be perceived.”
Further, it has been held that for the purpose of deciding the question of disqualifications, so long as any profit was attached to any office, it did not matter whether the profit has in fact been appropriated or not, and therefore, there was no distinction between the members who drew the allowances and those who did not. Some offices may be considered offices of profit even if the actual payment attached might not have been issued. One more important point to consider is that those offices where the payment issued is only compensatory in nature are not ‘offices of profit’ by interpretation. Nonetheless, one may argue that even with such offices, a certain number of perks may still be derived.
Further, by virtue of the Parliament (Prevention of Disqualification) Act, 1959, some offices of profit under the government are exempted from this rule. If one looks at the list of offices exempted, it may seem justifiable, at first. But we may figure out that there is no reasonable pattern or rule by which the governments of various states have been using (or ‘misusing’) such power. It covers those offices that need exemption because of the nature of their job. For example, ministers need exemption if they are to work because they will always be occupying two offices. This includes people from the armed forces, the police or members of universities or other similar bodies because we do need representatives in the Parliament from various walks of life. These are people who are qualified and would contribute effectively to the governance of the country. The court has beautifully observed in this respect:
“Doctors, lawyers, engineers, scientists and other experts have to be invited into local bodies, legislatures and like administrative organs based on election. These vital organs of a representative government are not to be the monopoly of populist politicians but sprinkled with technicians in an age which belongs to technology.”
In India, as it is, the line of separation between the Executive and the Legislature is very thin. This is because the former forms a part of the latter. In case the Members of Parliament are allowed to hold various offices of profit under the Executive, it would lose the already minuscule responsibility and accountability it owes to the Legislature. It is difficult to carry on opposing your employer who has bestowed you with benefits. The theory of separation of powers must not lose its essence, but sadly, that is the case here since the government has been constitutionally given the full discretion to exempt offices under the disqualification rule.
Conclusion: Misuse of Parliamentary Power
The question arises: why has the government been exempting offices from being covered under ‘offices of profit’? This has been answered in a 2015 Calcutta High Court judgment in the Vishak Bhattacharya case which held that since a position may confer the rank of a junior minister on the legislator concerned, the appointment of MLA’s as parliamentary secretaries was an attempt by the state governments to bypass the constitutional ceiling on the number of ministers. In 2009, the Bombay High Court also held that appointing parliamentary secretaries of the rank and status of a Cabinet Minister is in violation of Article 164(1A) of the Constitution. It specifies that the number of ministers including the Chief Minister should not exceed 15% of the total number of members in the assembly.
In the case of Jaya Bachchan, the then President, Dr A.P.J. Abdul Kalam acted on advice to disqualify her as a member of the Rajya Sabha since she held the post of the Chairperson of the Uttar Pradesh Film Development Council. This was rightly done. However, the recent amendment on what ‘office of profit’ includes has nullified the effect of the action of the President. Jaya Bachchan, Somnath Chatterjee and Sonia Gandhi are amongst the 40 Members of Parliament who have benefitted from such amendments in the Parliament (Prevention of Disqualification) Act, 1959.
The problem is that Article 102 and Article 191 recognize the power of the Parliament or the state legislatures to declare by law that the holder of an office would not be disqualified for being chosen as a member. There is nothing in the words of either article to indicate that this declaration cannot be made with retrospective effect. These articles do not imply any limitation on the powers of the Parliament or the state legislatures. Such immense power means that those who did not contest elections because of such post which may be under an office of profit are at a disadvantage against those who did, and consequently, misuse the parliamentary power to exempt.
The ‘office of profit’ amendments have resulted in clearing many posts of their disqualification status, and that too, retrospectively. As a result, the purpose of Articles 102 and 191 of the Constitution has been lost.
Nonetheless, relatively speaking, it is still a much better situation in India. To contrast, in Britain, there is no general theory of disqualification from holding an office of profit under the Crown. Instead, the disqualifications are specific and it arises only when a person holds a disqualifying office so declared under parliamentary legislation. The Indian rule is better in the terms that it covers a larger number of disqualifying offices under its ambit. The only problem that could arise is that people working for the government, who may contribute immensely as potential MP’s or MLA’s, may not be able to contest elections for the sake of the rule.
To conclude, what needs to be ensured is that there is no arbitrary expansion of the list of offices exempted from the rule laid in Article 102(1)(a). Also, an elaborate definition of the term ‘office of profit’ remains to be laid down. This can be done by taking into account the various judgments of the courts on that point. Such provisions of the Indian Constitution must be followed in both letter and spirit as they are the very basis of a functioning democracy.
ABOUT THE AUTHOR
Kshitij Sethi is a third-year law student at Dr Ram Manohar Lohiya National Law University, Lucknow.
In Content Picture Credit: The Hindu
Kindly note that the views and opinions expressed are of the author, and not of the Indian Journal of Law and Public Policy.