Constitutional Law Blog Alok.docx

India has Parliamentary Form of Government and crus of Parliamentary Democracy lies in day to day accountability of Government to Parliament enforced through collective responsibility etc.1 To ensure that Parliamentary proceedings are in the best interest of the country, it is necessary that legislators are free and independent so that they can perform their constitutional duties honestly. To make sure that legislators should remain independent and free, Indian Constitution has some provisions and ‘office of profit’ is being of them. In our constitution, ‘Office of Profit’ features as one of the grounds for disqualification of a member from the parliament and state assemblies. Article 102(1) (a) of the Constitution provides “a person shall be disqualified for being chosen as, and for being, a member of either House of Parliament if he holds any office of profit under the Government of India or the Government of any State, other than an office declared by Parliament by law not to disqualify its holder”. Article 191 corresponds Article 102 and applicable to the state legislative assemblies.2 Literal meaning of ‘office of profit’ is an office to which pay, salary, emoluments or allowance is attached and it is be held under Government control directly and substantially.3 This benevolent concept has been incorporated in order to eliminate the risk of conflict between the constitutional duties and interests of legislators.4 Because, a person who is elected to Legislature should be free to carry on his constitutional duties fearlessly without being subjected to any kind of governmental pressure. If such a person is holding an office which brings him remuneration and the Government has a voice in his continuance in that office, there is a strong likelihood of such person succumbing to the wishes of Government and then He can’t criticize measures of Executive Government even if they go against the interest of the people of the country”5 However, it should be worth noticing that 10th Schedule has been inserted in 1985 through 52nd Amendment Act and again it has been amended in 2003 through 91st Amendment Act.6 It provides for anti-defection law and makes legislators disqualified from being members of the 1

K.N.SINGH, ANTI-DEFECTION LAW AND JUDICIAL REVIEW 16 (1992). INDIA CONST. art. 102, cl. (1). 3 Gatti Ravanna v. G.S. Kaggeerappa, A.I.R. 1954 S.C. 653. 4 Satrucharla Chandrasekhar Raju v. Vyricherla Pradeep Kumar Dev, (1992) 4 S.C.C. 404. 5 Ashok Kumar Bhattacharyya v. Ajoy Biswas, (1985) 1 S.C.C. 151. 6 http://www.constitution.org/cons/india/tamnd52.htm; file:///C:/Users/User/Downloads/amend91.pdf. 2

House on being declared as defected according to the provision. This Anti-Defection law has curbed the independence of the legislators to a great extent. 10th Schedule has some grounds on the basis of which a member can be disqualified and one of the grounds provides that a member of House is deemed to have defected if he disobeys the directives of the party leadership on a vote meaning thereby, he can’t vote on any issue in contravention to the party’s ideology.7 Term ‘direction’ here can be meant as ‘whip’ which is governed through party’s discretion.8 Therefore, it can be said that 10th schedule is anti-democratic in nature and goes against the representative democratic nature of Indian Polity System as it asserts itself against Legislators’ independence as set out in the Art.105 of Indian Constitution.9 It has been resulted in unnecessary issuance of whips for trivial matters or as a fake display of party cohesion or to get an important legislation to be passed. For example, BJP and Congress both issued a whip for its legislators when Government introduced the 10% reservation quota bill for EWS of the General Category members and no members of both the parties voted against it, however, Congress members criticized it and were against the bill. Thus it can be said that legislators can’t vote as per their commonsense, conscience and need of constituency to which they represent.10 Moreover, 91st Constitutional Amendment fixed the size of cabinet at 15 % of the total strength of the Parliament or State Legislature.11 Thus in order to accommodate dissatisfied legislators who can’t make it to the cabinet, Government favors them in shape of various perks, offices to which some power and pecuniary gain are attached. And thus members feel a psychological attachment towards the party line and its ideology in the House. 12 And every time a complaint is registered with the Election Commission of a legislator holding an office reaping profits, the appropriate Government promulgates an ordinance and excludes a particular number of posts thus rendering the disqualification futile sidelining the noble provision. This has been the

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M.R.Madhavan,,&“ Pragati, In Parliament, PRE LEGISLATIVE RESEARCH (May 15, 2018, 08:05 PM), http://www.prsindia.org/media/articles-by-prs-team/in-parliament-part-1-961/ 8

Anti-Defection Law: A Death Knell for Parliamentary Dissent?, (2012) 5 NUJS L Rev 103, 104. Manish Tiwari, Liberate the Legislator, THE HINDU (May 15, 2018, 08:03 PM), http://www.thehindu.com/todayspaper/tp-opinion/liberate-the legislator/article8538780.ece. 10 Manish Tiwari, Liberate the Legislator, THE HINDU (May 15, 2018, 08:03 PM), http://www.thehindu.com/todayspaper/tp-opinion/liberate-the legislator/article8538780.ece. 11 file:///C:/Users/User/Downloads/amend91.pdf. 12 Faizan Mustafa, YOUTUBE (Jan. 22, 2018), https://www.youtube.com/watch?v=6l2i2Jw_uF4. 9

consistent practice which seems to be well settled and was legitimized by the Court as recently as in 2014 in the case of Ajay Bhatt v State of Uttrakhand.13 At the very outset we submit that judicial decisions though bound to vary from case to case basis and expecting judicial decisions constrained to a water tight compartment is not feasible but rampant inconsistency prevails in the entire fabric of interpretation of the constitutional provision of ‘office of profit’ and it is hard to point a specific rule of interpretation being employed by the courts. Because there were cases having almost same factual matrix but totally different view altogether was taken by the courts. For example, in Ramkrishna Hegde v. State of Karnataka14, Court held that if only allowances are withdrawn then the office is not one of ‘profit’ therefore, Hegde a legislator was not disqualified for holding the post of Deputy Chairman, Planning Commission even when he availed compensatory allowances. However in Jaya Bachhan v. Union of India15 bearing the similar facts, Court ruled that if pecuniary gain is receivable by the virtue of being in office then the office is considered as office of profit. Authors would like to conclude by saying that ‘Office of Profit’ seems to be a highly utopian concept in the light of various loopholes, inconsistencies and Parliamentary setup of our nation. Moreover, introduction of Anti Defection law has completely eclipsed any motive that the concerned disqualification may have in the constitutional scheme. Radical measures like striking off the disqualification based on office of Profit are warranted on the grounds that it serves no purpose in the contemporary political setup and instead leave a wide gap for the aforesaid provision to be misused by various political parties.

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Ajay Bhatt v. State of Uttarakhand, 2013 S.C.C. OnLine Utt. 1478. Ramkrishna Hegde v. State of Karnataka, A.I.R. 1993 Kant. 54. 15 Jaya Bachchan v. Union of India, (2006) 5 S.C.C. 266. 14