REPORT CHAPTER I INTRODUCTORY The Parliament (Prevention of Disqualification) Amendment Bill, 2006 was assented to by the President on the 18th August, 2006. While reconsidering the Parliament (Prevention of Disqualification) Amendment Bill, 2006 by the Lok Sabha on 31St July, 2006 an assurance was given on the floor of the House that the various points raised in the message of the Hon’ble President will be examined by the Joint Committee of both the Houses of Parliament. Accordingly, the Hon’ble Minister of Law and Justice moved a motion in Lok Sabha on 17 August, 2006 for constitution of a joint Committee to examine the constitutional and legal position relating to office of profit. The motion was adopted by Lok Sabha on the same day i.e. on 17 August, 2006. The motion provided for inclusion of the following members of Lok Sabha:— 1. Shri V. Kishore Chandra S. Deo 2. Shri Santosh Gangwar 3. Dr. Satyanarayan Jatiya 4. Shri Raghunath Jha 5. Shri A. Krishnaswamy 6. Shri Madhusudan Mistry 7. Shri Mohammad Salim 8. Shri Iqbal Ahmed Saradgi 9. Shri Rajesh Verma 10. Prof. Ram Gopal Yadav 2. The motion regarding appointment of the Committee was concurred in by Rajya Sabha on 18 August, 2006 and included the following members of Rajya Sabha:— 1. Shri Virendra Bhatia 2. Shri Arun Jaitley 3. Shri Ram Jethmalani 4. Dr. Abhishek Manu Singhvi 5. Shri Sitaram Yechury 3. Hon’ble Speaker appointed Shri Iqbal Ahmed Saradgi as Chairman of the Committee. 4. Thus, a Committee of 15 members of Parliament (10 from Lok Sabha and 5 from Rajya Sabha) was constituted as Joint Committee to examine the constitutional and legal position 1 relating to office of profit with the following terms of reference:— (i) to examine in the context of settled interpretation of the expression “office of profit” in Article 102 of the Constitution and the underlying constitutional principles therein, and to suggest a comprehensive definition of “Office of Profit”; (ii) to recommend, in relation to “office of profit”, the evolution of generic and comprehensive criteria which are just, fair and reasonable and can be applied to all States and Union Territories; (iii) to examine the feasibility of adoption of system of law relating to prevention of disqualification of Members of Parliament as existing in the United Kingdom and considered by the Constitution (Forty-Second Amendment) Act, 1976; and (iv) to examine any other matter incidental to the above. 5. The Committee were expected to present a report to Parliament by the first day of last week of Winter Session 2006. But the Committee had to seek five extensions (on 12.12.06, 14.05.07. 07.09.07, 29.11.07 and 30.04.08) of time for presentation of the report. 6. At their first sitting held on 14 September, 2006 the Committee held discussion among themselves regarding the concept of office of profit and deliberated upon the broad procedures to be adopted by the Committee for its working. The Committee also decided to issue press communiqué inviting suggestions/views in the form of memoranda from constitutional/legal experts, academicians, law institutes, bar councils, public bodies or individuals. In response, the Committee received 57 memoranda (Appendix-II). The Committee also decided to seek the views of all Parliamentary Parties/Groups, and State Governments on the subject. The Committee were also given a briefing by the representatives from the Ministry of Law and Justice (Legislative Department). 7. At their sitting held on 19 October, 2006 the Committee took stock of the action taken in pursuance of the decisions taken by the Committee at their first sitting and shortlisted the names of experts who might be asked to appear before the Committee for oral evidence. The Committee also held discussion with the representatives of Ministry of Law and Justice (Legislative Department) and sought certain clarification and material. 8. At their third sitting held on 17.11.06, the Committee heard the views of constitutional and legal experts : Shri Fali S. Nariman, Senior Adovate and Shri Rustom S. Gae, former Law Secretary, Government of India on matter under reference to the Committee. 9. At their fourth sitting held on 1 December, 2006 the Committee heard views/suggestions of Sarvashri Rajeev Dhavan and Harish N. Salve, both Senior Advocates. 10. At their sitting held on 20 March, 2007 the Committee heard the views of the representatives of Ministry of Home Affairs, NCT of Delhi and Union Territory of Puducherry. 11. At their sitting held on 9 May, 2007 the Committee held discussion and decided to seek extension of time for presentation of their report till the first day of last week of Monsoon Session, 2007. The motion for extension of time for presentation of the report was moved on 14.5.2007 which was adopted by the House on the same day. 2 12. At their sitting held on 23 August, 2007 the Committee heard the views of the representatives of the State Government of Gujarat on the terms of reference of the JPC. 13. At their sitting held on 5 September, 2007 the Committee decided to seek extension of time for presentation of the report till the first day of the last week of the Winter Session, 2007. The motion was moved in and adopted by the House on 07.09.2007. 14. At their sitting held on 31 October, 2007 the Committee heard the views of the representatives of Governments of North Eastern States on matters under reference of the JPC. 15. The Committee heard the views of the representatives of State Government of Rajasthan at their sitting held on 27.11.07. The Committee also proposed to seek extension of time for presentation of their report till the last day of the Budget Session, 2008. The motion for extension of time for presentation of the report was moved on 29.11.07 which was adopted by the House on the same day. 16. At their sitting held on 28 April, 2008 the Committee heard the views of representatives of State Government of Uttar Pradesh. The Committee also decided to seek extension of time for presentation of the report till the last day of Monsoon Session, 2008. 17. At their sitting held on 5 June, 2008 the Committee heard the views of State Governments of Orissa and Chhattisgarh. Similarly, at their sittings held on 20 August and 9 September, 2008 the Committee heard the views of State Governments of Madhya Pradesh and Kerala respectively. 18. The Committee undertook study visits to Mumbai and Bangalore (17 to 19 January, 07), Kolkata and Chennai ( 8 and 9 February, 07) Chandigarh and Shimla (25 to 27 June, 07), Patna (on 08.02.08) and Hyderabad (on 31.07.08) and held informal discussions with the representatives of respective State Governments. 3 CHAPTER II ORIGIN AND CONCEPT OF OFFICE OF PROFIT IN INDIA The concept of disqualifying a holder of office of profit under the Government for being chosen as and for being, a member of the legislature originated from the need in democratic Governments to limit the control and influence of the Executive over the legislature by means of an undue proportion of office holders being members of the legislature. Further, holding of certain offices was considered incompatible with membership of legislatures due to physical impossibility of a person attending in two places, or heavy duties being usually attached to those offices. Exception was, however, made in the case of Ministers and other members of Government with a view to having effective coordination between the executive and the legislature and making the executive accountable the Legislature. 2. The concept of disqualifying the holder of an office has developed as a necessary and inseparable part of a democratic government. The Government of India Act, 1935, made a clear and precise statement in this direction. Sub-section (1) of section 26 of the Government of India Act, 1935 provided disqualification for membership of the Federal Legislature which read as follows:- “26.(1) A person shall be disqualified for being chosen as, and for being, a member of either Chamber– (a) If he holds any office of profit under the Crown in India, other than an office declared by Act of the Federal Legislature not to disqualify its holder. ………” 3. Similarly sub-section (1) of section 69 of the said Act provided disqualification of membership of a Provincial Legislative Assembly or Legislative Council which read as follows:- “(1) A person shall be disqualified for being chosen as and for being a member of either Chamber– (a) If he holds any office of profit under the Crown in India, other than an office declared by Act of the Federal Legislature not to disqualify its holder. ………” 4. These sections 26(1) (a) and 69 (1) (a) of the Government of India Act, 1935 with consequential changes were taken in the “first draft Constitution of India” prepared by the Constitutional Advisor as Articles 68 and 141. Relevant portion of these Articles is reproduced below: “(1) A person shall be disqualified for being chosen as, and for being, a member of either House of the Federal Parliament— (a) if he holds any office of profit under the Federation or any unit other than an office declared by Act of the Federal Parliament not to disqualify its holder. ………” 4 5. For the purposes of this section a person shall not be deemed to hold an office of profit under the Federation or any unit by reasons only that he is a Minister either for the Federation or for a Province.” 6. The above draft articles alongwith other draft articles of the Constitution prepared by the Constitutional Advisor were considered by the Drafting Committee chaired by Dr.