Parliament to declare certain offices of profit not to disqualify their holders:

In pursuance of its power under Article 102(1)(a) of the Constitution, Parliament has exempted a number of offices from being an office of profit through a Parliamentary enactments, namely:

1. The Parliament (Prevention of Disqualification) Act, 1959:

2. Section 12 of the Salary and Allowances of Leaders of Opposition in the Parliament Act, 1977;

3. The Parliament (Prevention of Disqualification) Amendment Act, 1933;

4. Section 5 of the Leaders and Chief Whips of Recognized Parties and Groups in the Parliament (Facilities) Act, 1998;

5. The leaders and chief Whips of Recognized parties and Groups in the parliament (Facilities) Amendment Act,2000;and

6. The Parliament (prevention of Disqualification) Amendment Act, 2006.

Constitution validity of the parliament (prevention of Disqualification )Amendment Act, 2006 was challenged and the supreme court in a case, namely the consumer Education and Research Society vs. Union of India and Ors (4) (2009) 9 SCC648framed two issues as under:

(i) Whether the Amendment Act retrospectively exempting certain offices of profit from disqualification violates Article 101 to 104 of the constitution and is, therefore, invalid?

(ii) Where exemption of as many as 55 offices relating to statutory bodies/non – statutory bodies, without referring the proposal to the joint committee would render the Amendment a colourable legislation which violated any ‘Constitutional convention’ or Article 14 of the constitution?

On the first issue, the court observed as under:

“……..upon a proper construction of the provision of Articles 101 to 103, it is evident that a declaration by the President by the President under Article 103(1) in the case of disqualification under Article 102(1) and a declaration by the speaker or chairman under para.6 of Tenth Schedule in the case of disqualification under Article 102 (2) is a condition precedent for the vacancy of the seat. If Article 101(3)(a) is interpreted otherwise, it will lead to absurd results, thereby making it impossible to implement or enforce the relevant provision of the constitution or the RP Act.”

The Court held that while a disqualification results in the vacation of the seat of a member, the vacancy occurs only when the president decides and declares the disqualification under Article 103.

On the second issue, the court observed that which ‘offices’ should be excluded for the purpose of disqualification is a question that properly lies in the legislative domain .The plea regarding violation of Article 14 merely because several others similar offices of profit are not included in the exempted category has no basis in the opinion of the court. As each office of profit may have different effects and consequences on the Member, there is no viable basis for the assumption that all offices of profit are equal and that all offices of profit should be excluded. The court found that the argument based on Article 14 of the constitution is highly illogical and without any force.

The court upheld the impugned legislation, i.e. the parliament (prevention of disqualification) Amendment Act,2006 as constitutionally valid and in para 77, the subject was explained as under.

“…what kind of office would amount to an ‘office of profits’ under the government and whether such an office of profit is to be exempted is a matter to be considered by the Parliament. The key concern that certain officers or place held by an MP may be either incompatible with his/her duty as an elected representative of the people or affect his/her independence and thus weaken his/her loyalty to his her constituency and, therefore, should disqualify the holder thereof, is a matter to be addressed by the parliament .it is also not possible to classify and include the offices exempted from the said disqualification in a generic sense. While making the legislation exempting any office, the question Whether such office is incompatible with his/her position as an MP and whether his/ her independence would be compromised and whether his/her loyalty to his /her constituency will be effected should no doubt be kept in mind to safeguard the independence of the members of the legislature and to ensure that they are free from any kind of undue influence from the executive.”

Guidelines for future:

The court expressed its view that while making the legislation exempting any office, the question Whether such office is incompatible with his /her position as an MP and whether his/her independence would be compromised and whether his/her loyalty to his/her constituency will be affected should no doubt be kept in mind to safeguard the independence of the members of the legislature and to ensure that they are free from any kind of undue influence from the executive. However, the observation of the court that the learned counsel for the petitions have not advanced any contention that any of the newly exempted’ office’ suffer from any such impropriety or will be prejudicial to the constituency or affect the independence of the member are significance to note.

105. Powers, privileges, etc. of the Houses of parliament and of the members and committees thereof:

(1) Subject to the provisions of this constitution and the rules and standing orders regulating the procedure of parliament, there shall be freedom of speech in the parliament.

(2) No member of the parliament shall be liable to any proceeding in any court in respect of anything said or any vote given by him in the parliament or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of either House of parliament of any report, paper, votes or proceeding.

(3) In other respects, the powers, privileges and immunities of each House of Parliament, and of the members and the committees of each House, shall be such as may from time to time be defined by the Parliament by law, and, until so defined, shall be those of that House and of its members and committees immediately before the coming into force of Section 15 of the Constitution (Forty-fourth Amendment) Act, 1978.

(4) The provisions of clauses (1),(2) and (3) shall apply in relation to persons who by virtue of this Constitution have the right to speak in, and otherwise to take part in the proceedings of, a House of Parliament or any committee thereof as they apply in relation to the members of the Parliament.”

COMMENTS

The privileges and immunities of each House of Parliament and of the Members and the Committees of each House are set out in Article 105 of the Constitution. The Article comprises four clauses. Article 194 similarly set out the powers, privileges and immunities of the House of the Legislature of a state of its members and the committees of the House of such Legislature.

Clause (1) of Article 105 has been interpreted by the Supreme Court in MSM Sharma vs. ShriKrishna Sinha in re Keshav Singh’s cased and in Narsimha Rao vs. State. It has been held by the Court in MSM Sharma case that the freedom of speech guaranteed by clause 91) to the Members of the Parliament is in addition to the freedom of speech and expression guaranteed to the citizens of this country by Article 19(1)(a) and that the said freedom guaranteed to the Members of Parliament is not subject to the reasonable restrictions contemplated by clause (2) of Article 19. In MSM Sharma case Pandit Sharma was editor of an English Daily Newspaper “Searchlight” of Patna. He invited the wrath of the legislative assembly of Bihar by publishing extracts from proceedings of the legislative assembly including certain parts which had been ordered to the expunged by the Speaker. In this context, the Speaker has referred the matter to the Privileges Committee of the assembly, which, in turn, issued a show cause notice to him. Pandit Sharma brought writ petition in this court under Article 32 of the Constitution of India, alleging that the proceedings initiated by the legislative assembly had violated his fundamental right to speech and expression under Article 19() (a) as also the fundamental right of protection of his personal liberty under Article 21. The court concluded that the fundamental right of free speech and expression under Article 19(1)(a) being general in nature must yield to Article 194(1) and the latter part of Article 194(3) which are special provisions.