Office of Profit: Is the Parliament Empowered to Exempt Retrospectively?

Abstract

Article 102(1)(a) of the Constitution of India makes the holding of an “office of profit” under the Government as a ground for disqualification from membership of the Parliament. This rule is however subject to the exception that the Parliament may, by law, declare certain offices of profit as not disqualifying the holders thereof from membership of the Parliament. The Parliament, in exercise of this power, enacted the Parliament (Prevention of Disqualification) Act, 1959 (“the PPD Act”). The nature and scope of this power recently came in question before the Supreme Court of India when the Parliament amended the PPD Act in 2006 and retrospectively exempted certain offices from the purview of Article 102(1)(a). The Supreme Court, while upholding the validity of this amendment, held that the Parliament can, till the time the President renders a decision on the alleged disqualification of an MP under Article 103, validly exempt the offices of profit. This paper seeks to highlight some of the considerations that the decision of the Supreme Court does not seem to address. One such concern is the decision may render the function of the President under Article 103 practically futile. The phrase “shall be disqualified…if he holds any office of profit” in Article 102(1)(a) seems to be intended to make the disqualification of an erring MP mandatory, immediate and automatic, admitting of no intervening time gap between an MP’s holding of an office of profit and his disqualification on that ground. The decision also seems to be watering down the concept of “objective criterion” as opposed to the “subjective criterion” held by the Courts as required under the provisions of the Constitution.