SC judgments are the law of the land, says Dr Subhash Kashyap

Why do most governments appoint parliamentary secretaries?

It started when the National Commission (Venkatachaliah Commission) to review the working of the Constitution, where I was a member in-charge of elections and political parties and also chairman of the drafting committee, recommended that jumbo Cabinets should be limited and should not exceed 10 per cent of the membership of the Lower House. The government accepted the recommendation but instead of 10 per cent made it 15 per cent. In these 15 per cent you can include the ministers, the deputy ministers, and ministers with independent charge and if you like you can name them parliamentarian secretaries. So wherever the sealing of 15 per cent is not exceeded, parliamentary secretaries included, it's legal and legitimate. But where it exceeds 15 per cent, it means you are committing an outright fraud on the constitutional provisions by giving it a different name and concealing the real intentions behind words like honourary positions.

Centre and state governments keep amending the law to exempt posts from the purview of Office of Profit. How correct is this?

In my view, exemptions should not be given for political considerations. It was most unfortunate that a large number of positions were exempt in 2006 that made President Dr Kalam return the Bill for reconsideration. He signed it with a heavy heart when it was again sent to him. An assurance was given that a committee will be constituted to look into the matter of exemptions. But nobody heard of that committee thereafter. The height of impropriety was that the Act was given retrospective effect from 1959. In order to protect some politicians, the lawmakers misused their powers. It was most unfortunate for the Constitution and for the country.

Is the case of AAP different from other states where governments appointed parliamentary secretaries?

It is not different. In most cases in other states, to the extent I know, the appointments have been challenged and the matter is pending before the courts. The courts should not take so much time in deciding those cases.

As politicians still manage to hoodwink, do you think the definition of Office of Profit should also include posts yielding "power and influence"?

Yes, it can. As it is under the Supreme Court judgment it is there that yours is an Office of Profit if you are able to influence executive decisions — for example if you are in a position to help recruit some people, are in a position to appoint or help appoint or be a party to some committee which decides contracts… all those cases are covered.

But should it be made clearer by amending the Parliament (prevention of disqualification) Act, 1959?

Well, the Supreme Court decision is already the law of the land and the Apex court has already given such interpretation. But if an amendment is proposed to further clarify the office of profit, there is no harm.

Do you think schemes like MPLADS and MLLADS are in a way part of Office of Profit?

Yes, it is another fraud. When you talk of separation of powers, it can certainly be said that members of Parliament other than ministers are not supposed to have executive powers, while in the MPLAD scheme they do execute executive powers. They decide where the drain should be built, where the roads should come up. The guidelines of MPLAD scheme state clearly that MPs can recommend funds to matters which are in the state list and not in the Union list. It is against the federal principles. Sometimes, the MPs have more money to give than the local government institutions like the Gram Panchayat and Nagar Palika can. The earlier it is stopped the better. But why would the beneficiaries of a corrupt system strike at their own feet?

What's the solution?

The solution is that politicians should not treat politics as a means of getting rich quickly, our character should improve, political life should be more service and sacrifice oriented as it used to be before Independence and years immediately after Independence. Now it is a profession and not a clean one. Because whatever law you frame they are to be operated and interpreted by the human beings and what we are seeing is a crisis in character of political life irrespective of parties.