UNDER ARTICLE 102 OF INDIAN CONSTITUTION, M.P. CAN BE DISQUALIFIED IF HE HOLDS ANY OFFICE OF PROFIT UNDER GOVT WHICH IS EXPRESSLY NOT EXCLUDED BY PARLIAMENT
CHANDIGARH – The appointment of Raghav Chadha, senior Aam Aadmi Party (AAP) leader and Member of Parliament of Rajya Sabha from the State of Punjab as Chairman of Advisory Committee (AC) by Chief Minister of Punjab, Bhagwant Mann, has, apart from inviting political criticism by opposition parties in the State, has also come under a sort of legal scanner.
An Advocate at Punjab and Haryana High Court, Hemant Kumar, while quoting Article 102(1)(a) of Constitution of India asserts that Member of Parliament (M.P.) of either House of Parliament can be disqualified as such if he holds any office of profit under the Government of India or the Government of the State other than an office declared by Parliament by law not to disqualify its holder.
Hemant says that in pursuance of above Article, a law namely Parliament (Prevention of Disqualification) Act, 1959 was enacted by Parliament itself as Act No. 10 of 1959 which has been amended several times in last six decades and which specifies explicit names and designations of certain offices both under the Government of India as well as Government of different States in the country the holding of whom by MPs would not disqualify them as Members of Parliament.
The Advocate further elaborated that Section 3(h) of aforementioned 1959 Act excludes the Office of Chairman or member of a committee (whether consisting of one or more members), set up temporarily for the purpose of advising the Government or any other authority in respect of any matter of public importance or for the purpose of making an inquiry into, or collecting statistics in respect of, any such matter, if the holder of such office is not entitled to any remuneration other than compensatory allowance.
Pertinent that the Advisory Committee (AC) in Punjab has been constituted vide a State Government Notification dated July 6, 2022 nevertheless as an temporary (adhoc) committee to advise the Government of Punjab on matters of public importance pertaining to Public Administration. The Chairperson and members of ibid Committee are however not entitled to any compensation, remuneration or perks of any kind or nomenclature in respect of such appointment. They shall not even be entitled to payments that are compensatory in nature, including any reimbursements.
Hence, in view of Section 3(h) of the 1959 Act, the office of Chairperson of PAC seems to be out of purview of Office of Profit.
However, Hemant recalls that when in May, 2004 UPA-1 dispensation headed by Dr. Manmohan Singh, then Prime Minister of India, came to power, immediately National Advisory Council (NAC) was constituted in June,2004 which was headed by none other than then Congress party President, Sonia Gandhi.
Two years later in March, 2006 in the aftermath of then Rajya Sabha MP from Samajwadi Party, Jaya Bachchan, getting disqualified on account of her concurrently holding the post of Chairperson of Uttar Pradesh Film Development Council which was held as Office of Profit firstly by then President of India, on the opinion given by Election Commission of India ( which was later also upheld by Supreme Court of India in May, 2006), days after Jaya’s disqualification in ibid case, Sonia Gandhi also tendered as resignation not only then Lok Sabha MP from Amethi but also as Chairperson of NAC. Actually, BJP and certain opposition parties then raised hue and cry over Sonia’s disqualification also as MP since NAC was labelled as Office of Profit.
Meanwhile, both Jaya and Sonia got re-elected to Rajya Sabha and Lok Sabha in next few months after their disqualification and resignation respectively.
However, in August, 2006 the Parliament amended Section 3 of 1959 Act by incorporating new sub-section 3(ad) which specifically excluded the office of the Chairperson of the National Advisory Council as constituted by the Government of India in the Cabinet Secretariat on May 31, 2004. However, Sonia Gandhi re-assumed charge of Chairperson of NAC only in March, 2010 and she remained as such till May, 2014 when UPA-2 Government was voted out of power.
Amidst all this, Hemant questions that it remains to be examined thoroughly that if recently constituted Advisory Committee is akin to then Sonia Gandhi led NAC in the Manmohan Singh led two successive UPA regimes. And if office of Chairperson, NAC had to be specifically included in the 1959 law by an Amendment Act of Parliament so as to grant statutory immunity to Sonia Gandhi from being disqualified as MP on account of her holding such Office, then perhaps the same night also be needed in case of Raghav Chadha led Advisory Commitee in Punjab.