Dr P C Alexander
The passing of the Parliament (Prevention of Disqualification) Amendment Bill by the two Houses of Parliament on 16 and 17 May 2006, has served to solve the immediate problem of disqualification of some members of Parliament holding offices of profit under the government.
The President has returned the Bill with a message to the two Houses that there should be a comprehensive criterion which would be just, fair and reasonable and could be applied to all the states and union territories in a clear and transparent manner. He has also questioned the propriety of giving retrospective effect to the legislation.
Commenting on the legality of the new legislation, eminent Supreme Court lawyer and constitutional expert Fali S. Nariman has described it as a “lawless law” and demanded that the court should strike it down as “wholly arbitrary and impermissible.”
Many jurists have raised the issue of the violation of the principle of separation of powers which was the main rationale for incorporating Article 102 in the Constitution for disqualifying MPs, and Article 191 for disqualifying MLAs if they hold offices of profit. According to media reports, the constitutionality of the new legislation is likely to be raised before the Supreme Court.
Whatever may be the government’s response to the President’s message or the final verdict of the Court, I would like to raise the basic issue of the propriety and political morality involved in allowing exemptions to so many legislators occupying offices of profit.
The table attached to the Bill lists 45 offices exempted from disqualification in addition to those which had already been exempted. In Uttar Pradesh, as many as 78 offices of profit have been exempted through new legislation from disqualification in addition to those already exempted, and in Delhi, 14. If we add up all the exemptions made in the past and now by the Central and state legislatures, the figure will run up to several hundreds.
Some pertinent questions arise from the present mass scale exemptions from disqualification. Why were MPs and MLAs appointed in the first place to offices of profit when such appointments were bound to attract disqualification of the members of the legislature concerned? No doubt, a proviso exists in Articles 102 and 191, that the legislature can declare by law that holding a particular office does not disqualify its holder.
But this proviso was intended to cover exceptional cases where the services of certain members of the legislature with special qualifications and background, were required for appointments to such offices and not for routine application to all offices of profit under the government. By allowing such a large number of legislators to hold offices of profit, the government is laying itself open to the criticism that the law can be circumvented through exemptions if the beneficiaries are legislators.
The government may claim that these appointments have been made in public interest, but ordinary people would like to know how public interest is being served by limiting the appointments to such offices to only legislators.
The table attached to the Bill lists offices like the Irrigation and Flood Control Commission (UP), the Indian Statistical Institute (Kolkata), the Hooghly River Bridge Commission, the West Bengal Pharmaceutical and Phytochemical Development Corporation, the Thirumala Tirupathi Devasthanam Board (Andhra Pradesh), the Uttar Pradesh Cooperative Bank, the All India Council of Sports, the Handicrafts Development Corporation (West Bengal), the Small Industries Development Corporation (West Bengal), the Delhi Rural Development Board, etc., to mention only a few.
Does it mean that the government has found some members of the legislature as most suitable for these offices and couldn’t have found more suitable candidates for these offices through an open selection? Or does it mean that the experience as a legislator is specially required for such offices? The honest answer to the question why such posts were filled by MPs and MLAs will be that the governments who made these appointments concerned, found it politically expedient to do so.
In many cases, appointments would have been made only for the reason that the MP or the MLA concerned could not be accommodated within the Council of Ministers. These posts carry many of the perquisites and privileges of the posts of ministers and they have come handy to satisfy the ambitions of some legislators who press their claim for ministerial berths.
When appointments are made purely on political considerations. and that too when choice is limited to the legislators, it tantamounts to an injustice to these offices because they are denied the opportunity of getting the best persons through an open selection. If the objective of Articles 102 and 191 are to be achieved, the government should take a policy decision that no legislator will be appointed to offices of profit except in very rare cases where the only consideration will be genuine public interest.
It will also drive home the lesson to the legislators that to be an MP or an MLA is a great honour by itself and that they should not push for offices of profit under the government to enhance their importance or influence.
Another example of those in power attempting to get round constitutional and legal provisions in order to satisfy the aspirations of legislators for a share of power, is the appointment of large numbers of legislators as parliamentary secretaries at the state level.
Since the number of ministers cannot be increased beyond the prescribed 15% level, some state governments have resorted to this short-cut, claiming that such appointments are necessary for the smooth functioning of the government. A further justification is that the post of parliamentary secretary does not come within the category of ministers.
The high court of Himachal Pradesh has declared the appointment of 12 parliamentary secretaries made by the chief minister of that state as illegal and void, and the legality of these appointments has already been challenged before the Supreme Court.
Whatever may be the validity of the claim of some state governments that the post of parliamentary secretary is different from that of a minister, in the eyes of the people, the parliamentary secretary is a part of the political executive of the state. There have been no parliamentary secretaries in the Central Council of Ministers for a long time now, but the Rules of Procedure and Conduct of Business of Parliament have included this post in the definition of ministers.
According to the Rules of Procedure, “minister means a member of the Council of Ministers, a minister of state, a deputy minister or a parliamentary secretary.” The appointment of parliamentary secretaries, and that too in such large numbers, will be seen by the people as another instance of scant respect for the Constitution and the law, whenever the government of the day wants to extend special favours to its party men or supporters in the legislature.
Politicians as a class, and legislators in particular, are getting worried about the erosion that has set in, in recent years, in the esteem and confidence they used to enjoy among the people in the past.
This new trend may be the cumulative result of various undesirable practices, such as unprincipled defections, corruption, criminalisation of politics, and other such recent developments in our country. When the lawmakers are seen by the people as not being strict and vigilant in their adherence to law and the Constitution, it becomes an additional reason for the decline in the trust and esteem of the people for them.
Dr P.C. Alexander was the governor of Maharashtra and Tamil Nadu and is at present a member of Rajya Sabha
