Basic Criteria to Disqualify an MP or MLA :-
Basic disqualification criteria for an MP are laid down in Article 102 of the Constitution, and for an MLA in Article 191. They can be disqualified for :
- Holding an office of profit under government of India or state government
- Being of unsound mind
- Being an undischarged insolvent
- Not being an Indian citizen or for acquiring citizenship of another country.
What is ‘office of profit’ ?
The word ‘office’ has not been defined in the Constitution or the Representation of the People Act of 1951. But different courts have interpreted it to mean a position with certain duties that are more or less of public character. However, a legislator cannot be disqualified from either the Parliament or state Assembly for holding any office. It can be done for holding an office of profit under the central or state government, other than an office declared not to disqualify its holder by a law passed by Parliament or state legislature.
How do courts or EC decide whether an MP or MLA has profited from an office?
The Supreme Court, while upholding the disqualification of Jaya Bachchan from Rajya Sabha in 2006, had said, “For deciding the question as to whether one is holding an office of profit or not, what is relevant is whether the office is capable of yielding a profit or pecuniary gain and not whether the person actually obtained a monetary gain… If the office carries with it, or entitles the holder to, any pecuniary gain other than reimbursement of out of pocket/actual expenses, then the office will be an office of profit for the purpose of Article 102 (1)(a)…”
However, a person who acquires a contract or licence from a government to perform functions, which the government would have itself discharged, will not be held guilty of holding an office of profit.
So, acquiring a gas agency from the government or holding a permit to ply do not amount to holding office of profit.
What is the underlying principle for including ‘office of profit’ as criterion for disqualification?
Makers of the Constitution wanted that legislators should not feel obligated to the Executive in any way, which could influence them while discharging legislative functions. In other words, an MP or MLA should be free to carry out her duties without any kind of governmental pressure.
What was the first office of profit case referred to the EC ?
One of the earliest cases was in 1953. The EC had to decide whether MLAs of the Vindhya Pradesh Assembly should be disqualified for appointment as members of the district advisory council. As members, they were paid an allowance of Rs 5 for each day they stayed at the place where the meeting of the advisory council was held.
The EC was of the opinion that reimbursement of mere out-of-pocket expenses should not be held as profit. So, only members living in the district headquarters (where the meetings were being held) and still receiving allowance were deemed to hold office of profit, and 12 of 60 were disqualified.
What are the recent instances of disqualification of legislators for holding office of profit?
- In March 2006, President APJ Abdul Kalam disqualified Jaya Bachchan of the SP from Rajya Sabha with retrospective effect from July 14, 2004, for holding an office of profit as chairperson of the UP Film Development Council.
- In January 2015, UP MLAs Bajrang Bahadur Singh (BJP) and Uma Shankar Singh (BSP) were disqualified from the assembly after they were indicted by the Lokayukta for bagging government construction contracts by misusing their position.
How things stand in other states :-
- West Bengal: Mamata Banerjee government appointed 24 parliamentary secretaries for “coordination between government departments”. Kolkata HC called it unconstitutional. Matter pending in SC. Posts currently non-functional.
- Karnataka: Karnataka government appointed 11 MLAs and MLCs as parliamentary secretaries. Says posts not equivalent to minister of state and they are only assistants to ministers. Case pending in HC
- Rajasthan: Rajasthan government has 10 parliamentary secretaries who enjoy status of ministers of state. Passed a bill in October 2017 to give them constitutional validity, which has been challenged in HC
- Odisha: Odisha appointed 20 MLAs as chairpersons of district planning committees in 2016 and gave them minister of state status by amending an Act. DPCs get vehicles and secretarial staff, but don’t draw extra salary
- Telangana: Telangana appointed six MLAs as parliamentary secretaries in 2014 and gave cabinet status by enacting law. Hyderabad HC quashed appointments in June 2016
- Northeast: Nagaland and Arunachal Pradesh have 26 parliamentary secretaries each. After SC held law enacted by Assam in 2004 unconstitutional, other NE states discontinued the posts. Eleven parliamentary secretaries resigned in Manipur, seven in Mizoram. Meghalaya HC, too, held Meghalaya Parliamentary Secretaries Act “invalid”, 17 resigned.
- Haryana and Punjab: Punjab and Haryana HC set aside appointment of four MLAs as chief parliamentary secretaries in July 2017. HC had struck down appointments of 18 Punjab MLAs as CPSs by SAD-BJP government in Punjab on similar grounds. Even SC had refused to stay the order