These days many people particularly in the political circle have started murmuring about ‘office of profit’ and ‘profit in office’. TV channels including our local cables have discussed the issue topsy-turvily. But one thing I don’t understand is the reason behind the jargon “office of profit”.
Is there any office without a profit? Perhaps none; any office in the world is either linked with power or position or pecuniary-pay or perks or prestige or all. Even the office of a voluntary undertaker has some say; which body goes first? And he is capable of earning tips out of the bargain. Any office which is capable of yielding profit or pecuniary gain constitute a “office of profit” (Supreme Court on Jaya Bachan, 2006 ).
It reminds me of a story of Mughal period; in Jahangir’s time there was a an officer (nobleman) who was very corrupt; he took bribe for anything and everything; people had complained to the emperor about this blatantly corrupt officer ; the emperor could not take harsh action against the officer because he belonged to a powerful family of the royalty; so emperor Jahangir appointed him as the officer in-charge of sea-shore and transferred him to Surat; emperor thought that there is hardly any scope for corruption at the sea shore. But the gentleman could find a way out to indulge in corrupt practices; he started extorting the fishermen and traders for using the sea-waves. The Emperor wrote a letter and warned him, but the reply came ,”Huzur sea is beyond your Majesty’s jurisdiction” .
The moral of the story is that a man with strong determination can find ways and means to circumvent the rules to do business or indulge in activities which are not exactly in conformity with the spirit of law. I am not asking to break the law; I am simply saying that there must be ways and means to maneuver.
We were taught that the Supreme Court verdict is the law of the land, until and unless it is reviewed or struck down by itself. However we have seen instances that the despite Supreme Court limiting the job reservation limit up to 50 % , states are having quota much beyond it.
States like Karnataka, Rajasthan, Telangana, Arrunachal etc, have Parliamentary secretaries. Yet they are not disqualified. These appointments might have been challenged in a court of law or represented to the Governor or to the Election Commission. It takes time when the law takes its own course. Again one gentleman says that the facts and circumstances of the appointment of Parliamentary Secretaries differ from State to State; the merit of each case has to be looked into while deciding each case.
The Apex court and high courts have repeatedly held that it is not permissible to create posts of Parliamentary Secretaries either through legislation or by an executive order to accommodate MLAs who could not be made ministers because of the 15% ceiling as envisaged in the Constitution 91st Amendment and enshrined in Article 75(1A) and 164(IA). With some unique maverick knowledge of Constitution and law a safety valve may be found for survival. In jurisprudence too it is taught that for every problem there ought to be a remedy in law.
At this juncture my unsolicited advice will be, if you can lodge the (exemption) enactment in the 9th schedule of the Constitution (which is beyond judicial review) you all are safe; all the concerned states and political parties may come together and build a political consensus; it is doable. If I remember correctly Tamil Nadu Reservation law is kept under the 9th Schedule. Another way out is ,there is no deadline to complete the hearing of a case / complaint filed either in the Court or in the EC or in Raj Bhavan (General Clauses Act or Limitation Law is not always workable) , so it may be dragged till the next election. At the same time a PIL may be filed under some spirited lawyers pleading the Apex court that when the Parliament (Prevention of Disqualification) Act 1959 is still amendable and expandable (for exemption from office of profit) even after the 91st Constitution amendment, can the state legislature be left far behind? If the Supreme Court gives relief there will be a sigh of relief.
” Mi Lord, it is not a crime; neither illegal nor unconstitutional but simply not in conformity with the law”, devil’s advocate.