Tejashwi Yadav to lose Assembly seat? Evidently not
Much is being made of purported leaks from the Income Tax department against Tejashwi Yadav, Leader of Opposition in the Bihar Legislative Assembly. The department has reportedly concluded that Yadav officiated as the director of a private company during his tenure as deputy chief minister of Bihar, despite having resigned from the post before taking oath.
Though the Central Board of Direct Taxes (CBDT) is yet to issue any official confirmation of the said findings, these unverified reports have led many to conclude that this may lead to Yadav's disqualification from the Assembly.
These conclusions assume that holding a directorship in a company while being a minister in the government amounts to holding an office of profit, which is an adequate ground for disqualification.
But nothing could be further from the truth.
The IT department has reportedly found that Yadav resigned from the position of director at AB Exports Private Limited on 9 November 2015, but a cheque dated 9 February, 2016 was found in raids that was signed by him in the capacity of director. Some other bills and letters are also said to have been found that are also signed by Yadav as director in the same period.
However, what those talking about the said IT reports seem to have missed is that the office of profit clause in Article 102 (1)(A) of the Indian Constitution as well as in other provisions refers to a post only under central/state government that yields salaries, perks, and other benefits.
So, a legislator in Parliament or a state Assembly is only barred from holding a government office that entails payment of salary and/or other benefits.
PDT Achary, the former Secretary General of the Lok Sabha, told Catch that the office of profit clause indeed talks about only government offices. Any position in a private company is not under its purview and there is no illegality on that part, Achary added.
Holding a directorship is indeed a question of propriety. When ministers take oath, they usually swear to “bear true faith and allegiance to the Constitution of India”, to “uphold the sovereignty and integrity of India”, to “faithfully and conscientiously discharge” duties as a minister and to “do right to all manner of people in accordance with the Constitution and the law, without fear or favour, affection or ill-will”.
“Favour” is the key word in this context. If a person is at the helm of affairs in a private enterprise his loyalty is to the said firm. This loyalty may or may not come in conflict with the said individual's allegiance to the Constitution and duty to show no 'favour' to anyone, as a minister. However, that's where it ends as that impropriety has so far not been extended to the law.
Therefore, in a nutshell, it will be hard to get the Election Commission to disqualify Yadav from the Assembly on these grounds. The IT department's probe into his alleged financial wrongdoing is another story.
Edited by Jhinuk Sen