Conflict of Interest, Toh Kya?

According to Constitutional expert Durga Das Basu, “The principle underlying this disqualification is that there should be no conflict between duties of a member of Legislature and his private interests and that the indebtedness of a member to Government is incompatible with his independence as a representative of the people”

It started with BJP complaint February against rival Jharkhand Chief Minister Hemant Soren demanding CBI-ED probe into State’s mining scandal along-with corruption and conflict of interest filed against Soren for misusing his position as Mining Minister and allocating a mining plot to himself last year. Typically JMM-RJD-Congress dismissed it as sour grapes, while political pundits read a deeper meaning: Of BJP out to kill two birds with one stone. Dethrone Soren and form Government.

Last week Election Commission disqualified him as MLA under Representation of People Act and all eyes are on Governor Ramesh Bais’s decision which could trigger political instability in a State which has seen 11 Governments and three President’s rule spells in 22 years. As BJP sharpens criticism, Soren-led JMM coalition is brazening it out stating no rules broken as lease surrendered alongside taking conspicuous steps to keep flock together.

The issue is not whether it is end of the road for Soren in Office-of-Profit controversy? Nor is it about Governor upholding EC’s recommendation to disqualify him? Neither political costs of allies standing by him? What matters is what is morally and politically correct thing to do: Soren should resign and seek re-election.

Just as Sonia Gandhi did when accused of holding Office of Profit by being MP and Chairperson of National Advisory Council with Cabinet Minister rank in UPAI. She resigned as MP and sought re-election 2006. The controversy arose due to Congress’ political managers’ oversight who forgot to seek exemption from Office of Profit Act for Chairman NAC post.

Industrialist Anil Ambani also pleaded guilty of holding Office of Profit and quit Rajya Sabha, ending his brief but controversial stint in politics. Ditto, Samajwadi Rajya Sabha member Jaya Bachchan who doubled as UP Film Development Corporation Chairperson.

Importantly, Office of Profit Act states: To be in a position that brings to office-holder some financial gain, advantage or benefit’. Under Article 102(1)(a) and Article 191(1)(a) a person shall be disqualified for being chosen as, and for being MP or Legislative Assembly/Council member if he holds an “Office of Profit” under Central or any State Government, other than an office declared not to disqualify its holder by a law passed by the Parliament or State Legislature.

The Supreme Court too underscored that issue was not whether an MP or MLA of an office in question received any remuneration but was potentially in a position to receive some remuneration. The word profit connotes the idea of pecuniary gain.  If there is really a gain, its quantum or amount would not be material; but the amount of money receivable by a person in connection with the office he holds may be material in deciding whether the office really carries any profit.

According to Constitutional expert Durga Das Basu, “The principle underlying this disqualification is that there should be no conflict between duties of a member of Legislature and his private interests and that the indebtedness of a member to Government is incompatible with his independence as a representative of the people”

Interestingly, “Office of Profit” is not defined anywhere.  Courts have been passing judgments whereby a vague pattern has emerged. The philosophy behind this prohibition is that MPs-MLAs should be free to function independently of Executive. By accepting Office of Profit, theoretically they become subject to pressure by the Executive. Arguably, if nearly half the House becomes part of Executive, then business of legislators holding the Executive accountable suffers. Certainly, not a happy state of affairs.

Pertinently, to overcome the disqualification issue Parliament and several States have enacted laws exempting and expanding certain offices from Office of Profit purview.  In 2015 when all 60 MLAs of Nagaland Assembly joined ruling alliance, the Chief Minister appointed 26 legislators as Parliamentary secretaries. In 2017, Goa’s 40 MLAs Assembly exempted more than 50 offices by an ordinance!

Worse, ex MP-industrialists like Mallya, Maharashtra’s newspaper baron Vijay Darda and Reliance Petroleum’s director YP Trivedi who were part of the Standing Committee on Finance and Consultative Committee of Commerce and Industry Ministry to Bihar’s deceased pharmaceutical tycoon Mahendra Prasad aka ‘King Mahendra’ were Office of Profit poster boys but took recourse to a loophole which bars a MP from occupying any Government positions but does not restrict him from holding a position in a corporate. Sic.

Also, ex-UPA’s DMK Union Shipping Minister Baalu’s shenanigans who “put in a word” to then Petroleum Minister Murli Deora to provide gas to family-owned King Power Corporation run by his sons post his resignation as MD subsequent to becoming Minister. Tamil Nadu’s Marans were also entangled in conflict of interest cases in blatant allotment of 323 high-speed telephone lines to his residence to help family enterprise Sun TV network.

This apart, questionably, has ‘Office of Profit or Office-of-no-Profit’ become another facet of corruption?  Has it provided a legal seal to bribery of our Right Honourables through arbitrary fiats declaring Offices of Profit as non-profit? Enabling MPs-MLA’s to enjoy juicy lollipops of power?  Wherein one may not take any salary but enjoy royal perks, more than making up for it? Who needs a salary!

Instances are plenty at Centre and States wherein MPs/MLAs who cannot be accommodated in Cabinet are compensated by being appointed Chairman’s of various corporations and commissions enjoying status of Cabinet or Minister of State.

Look at the absurdity. A MP as member of airline board takes no salary but enjoys amazing perks —- unlimited first class travel and entertainment. Legislators as members of various Standing Committees get public undertakings to pick up the tab for their five-star hotels, shopping, gifts etc.

The situation is worse in States. MLA-Chairmen lord over State Boards and Commissions and merrily convert them into their private fiefdoms of mini-Ministries with full staff and freedom to poke their noses into all deals — buying, selling, price fixing etc.

The best way to handle conflicts of interests is to avoid them entirely. For example, an elected MP might sell all corporate stocks that he owns before taking office and resign from all corporate boards. Or moves his corporate stocks to a special “blind” trust, which would be authorized to buy and sell without disclosure to him. Since the MP would not know companies the trust has invested in, there would be no temptation to act to his advantage.

Clearly, the Soren controversy on Office of Profit saga is a classic case of ‘100 chuhe kha ke billi hajj ko chali’, as this applies to all Parties, BJP, Congress, JD(U) Samajwadi, RJD,  BJD etc. It spotlights our polity’s recurring abuse of its authority to distribute patronage at will by nullifying the basic object of Article 102.

Thus, it is time for Government to desist from appointing legislators to ‘Offices of Profit’ and merrily promoting legalized corruption. Parliament needs to debate the issue threadbare. Private profit must not be permitted in the name of public service!


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Poonam I Kaushish

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