Money Matters

Rajeev Dhavan / Mar 21, 2006, 00:00 IST

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Rules for MP ineligibility need to be clarified

Jaya Bachchan may well be advised to seek re-election rather than become a test case to settle the unsettled law on what constitutes an 'office of profit'.
The Constitution contains various provisions disabling a person who holds an 'office of profit' under the government from becoming president (Article 58(2)), vice-president (Article 66(4)), members of Parliament (Article 102(1)(a)), or a state legislator (Article 191(1)).
It is left to Parliament to pass any laws to remove any other 'office' from incurring disqualification. While the purpose of disqualification is to ensure a separation of powers so that MPs can perform their duties without fear or favour independent of the central or state government, the system is riddled with systemic arbitrariness.
Ministers are excluded, which is inevitable in a parliamentary government. Beyond this lies scope for more arbitrariness. Parliament and state legislatures can exempt all or any 'offices' from inviting disqualification.

This is too wide and a wholly arbitrary and unprincipled reservoir of legislative power both in its conception and exercise. Equally, the procedure for disqualification is fraught with political mischief to be initiated by anybody.
It is, then, deliberated on by the Election Commission and finally decided by the president. After this there is possibility of a petition in high courts or Supreme Court whose approach remains ambiguous.

On August 24, 1954, the Bhargava Committee was appointed to consider a comprehensive Bill on disqualificatory exceptions.
The committee reported in September 1958 and broadly justified exclusion from disquali-fication of ministers, while underlining that governmental largesse should not pick and choose MPs to whittle down their indepen-dence.
Parliament has enacted legislation in 1950, 1951, 1953 and 1959 and later amended them. The state legislatures have done likewise on an ad hoc basis.
Indeed, this is exactly what Mulayam Singh tried to do unsuccessfully for Jaya Bachchan, not realising that state legislatures cannot save an MP with their brute voting power.
After R K Hegde's disqualification in 1989, the post of deputy chairman of Planning Commission was excluded from disqualification. However, the random power of legislatures to qualify legislators retrospectively was accepted by Supreme Court's Constitution Bench in the Kanta Kathuria case (1969).
However, Jaya Bachchan's case does pose a constitutional dilemma. Such disqualifications cannot be left to the travails of politics. There are three important principles.
The first is the nature of constitutional risk, whether there will be a real conflict of interests between the office held and discharge of parliamentary functions. This is the real consideration.
The remaining two questions are whether the office is under government and whether it is truly for profit and not just a reimbursement for expenses. But, in Shibu Soren's case (2001) Justice Anand cautioned that the approach must be a "practical view and not a pedantic basket of tests".
No doubt, the president had to consider the question whether Jaya Bachchan's holding chairpersonship of the UP Film Development Council was an office of profit under the government.
That she does not receive emoluments is an issue; as, indeed, the functions and nature of the corporation. But, it is the deeper principle that must engage our attention.
Way back in Madhukar's case (1977) Justice Krishna Iyer warned that "we have to bear in mind that our Constitution mandates the state to undertake multiform public activities on a massive scale...
On such an expanding situation, can we keep out of elective posts... an army of non-officials who are wanted in various fields not as full-time government servants but as part-time participants in peoples' projects sponsored by the government".
Thus, if President Kalam was a Rajya Sabha MP he could still chair a national science council which he cannot do as a president. There is a statesmanlike wisdom in this approach.
There is little dispute that Jaya Bachchan is a distinguished actress who has much to give to development of films. She was the right person to approach for film development in UP.
It is a promotional and social activity which she was prepared to do free. If the entire purpose of the disqualification is not to exclude activists from assisting society and government, her case is surely to be distinguished from those of unsuccessful politicians appointed to sinecure posts.
No doubt, the UP government may take the post away from her. But, this would not risk Jaya Bachchan's independence. It is also alarming that, unlike the Mohana Rangam case of 1982, Jaya Bachchan's disqualification has been made retrospective.
This is not a case where she had an inherent disqualification when she was elected. The disqualification came while she was still an MP. To make the disqualification retrospective means that her entire presence in Parliament is wiped out.
This is playing around with a legal fiction to absurd lengths. A Bill proposed by her would lapse anyway. But, now her past presence in Parliament will disappear by legal magic-defying reality. This is excessive and un-necessary.
Amidst this chaos, India needs to develop a simpler test prohibiting civil servants from disqualification. Otherwise, many heads will roll.
The writer is a senior Supreme Court advocate.

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