Decode Politics: As Suresh Gopi talks of charging fees for events, a look at laws, rules governing MPs’ conduct

Can MPs practise other professions? What are the laws and rules for it? Some provisions of the Constitution and the Representation of the People Act, 1951 govern the conduct of legislators in this regard.

What is an Office of Profit?

The basic disqualification criteria for an MP are laid down in Article 102 of the Constitution, and for an MLA in Article 191.

Union Minister of State Suresh Gopi with son and actor Gokul Suresh and others during a promotional event of the latter’s upcoming movie ‘Gaganachari’ in Chennai. (PTI)

Article 102 says that an MP shall be disqualified if he holds any office of profit under the Government of India or the Government of any State, other than an office declared by Parliament by law not to disqualify its holder.

The word “office” has not been defined in the Constitution or the Representation of the People Act of 1951. But different courts have interpreted it to mean a position with certain duties that are more or less of public character. However, a legislator cannot be disqualified from either the Parliament or state Assembly for holding any office.

The Supreme Court, while upholding the disqualification of Jaya Bachchan from Rajya Sabha in 2006, had said, “For deciding the question as to whether one is holding an office of profit or not, what is relevant is whether the office is capable of yielding a profit or pecuniary gain and not whether the person actually obtained a monetary gain”.

However, a person who acquires a contract or licence from a government to perform functions, which the government would have itself discharged, will not be held guilty of holding an office of profit. So, acquiring a gas agency from the government or holding a permit to ply it do not amount to holding office of profit.

Are there rules on declaration of MPs’ assets?

The Members of Lok Sabha (Declaration of Assets and Liabilities) Rules, 2004 — made by the Speaker under Sub-section 3 of Section 75A of the Representation of People Act, 1951 — stipulates that every elected candidate for the House of the People shall, within ninety days from the date on which he makes and subscribes an oath or affirmation for taking his seat, submit details to the Speaker on the movable and immovable property of which he, his spouse and his dependant children are jointly or severally owners or beneficiaries, his liabilities to any public financial institution; and his liabilities to the Central Government or to the State Governments.

What about MPs’ business interests?

As per the Code of Conduct issued by the Ministry of Home Affairs for Ministers (both Central and State), a minister must “sever all connections, short of divesting himself of the ownership, with the conduct and management of any business in which he was interested before his appointment as Minister”.

These rules say that the question of divesting interests would not arise in case of holding of shares in public limited companies except in the case of a Prime Minister, or the Chief Minister.

Additionally, Ministers are to “refrain from starting, or joining, any business; ensure that the members of his family do not start, or participate in business concerns, engaged in supplying goods or services to that Government (excepting in the usual course of trade or business and at standard or market rates).”

What have courts said?

In March 2017, a Delhi BJP leader and lawyer Ashwini Kumar Upadhyay filed a petition in the Supreme Court against MPs continuing their practice as advocates. He argued that if lawmakers were allowed to practise as advocates, they would charge fees from their private clients and, at the same time, continue to draw salary from the public exchequer, which would amount to a “professional misconduct”.

Such advocates-turned-legislators would also appear on television channels and give interviews to the media, which entail advertisements, Upadhyay claimed, adding that there were other conflicts of interest too.

In its order in 2018, the apex court said the legislators are not “full time salaried employees”, ruling that advocates who become lawmakers can continue their legal practice as there are no such restrictions under the Advocates Act, 1961.