The provision in the Constitution forbidding a member of Parliament from holding an office of profit is as old as the Constitution itself.
It is therefore surprising that there is so much confusion about it.
First, let us look at the rationale behind the provision. A person is disqualified from being a member of Parliament if s/he holds an office of profit under the Government of India.
The provision is intended to avoid obvious conflict of interest issues between the duties of an elected representative of the people and his/her role as the holder of an office of profit.
There can be no doubt that this is a necessary provision in any Constitution.
A member of Parliament is meant to project the needs of the people s/he represents and is not being elected to make unlawful gains out of the election.
Gains can be made in different ways -- by receiving remuneration or by being endowed with powers to do favours.
That is the reason why the Supreme Court has rightly held that an office of profit is not just one from which a person benefits monetarily, but also one which enables the holder to exercise administrative power.
Politics, however, functions in ignorance of the law.
It has become something of a tradition to concentrate power in the hands of those who those who already have it.
As an MP, even without the additional office of profit, there is much to be gained. Some of the recent illegal gains that have came to light are the cash-for-questions scam, and the gross misuse of the Local Area Development funds.
Incidentally, the scheme for giving funds to MPs when first announced was challenged unsuccessfully in the Supreme Court.
It appears that after noticing the unlawful gains being made by MPs from these funds, the Supreme Court has been having second thoughts about the manner in which it could profit the MPs.
The 1959 Act was intended to remove the disqualification that would have been attached to an office of profit from various posts, including the post and position of ministers and leader of the Opposition.
This means that, if it was not for that Act, these posts would be considered offices of profit.
It would of course be absurd to disqualify an elected MP for holding the post of a minister, and hence the exemption from disqualification.
There are several other offices, both statutory and non-statutory, which are also exempted.
A glance at the list of these offices would lead to the conclusion that most of them are those meant to advance constitutional goals -- such at the chairperson of the National Women's Commission, or of the Commission on Scheduled Castes and Tribes.
It is therefore very clear that no elected representative is meant to profit from the Government of India.
Political practice, on the other hand, has been quite the reverse.
As far as Sonia Gandhi is concerned, the question would then be whether the office of chairperson of the National Advisory Council is an office of profit.
This is not a question that can be decided by the press or by debate. It is the Election Commission and eventually the courts that can decide the question, based on existing guidelines.
Faced with an allegation that she was occupying an office of profit and was therefore disqualified from being an MP, Mrs Gandhi chose to resign.
I believe that this is in the highest traditions of political practice. Why do we have to wait till a court decides against us?
She could, of course, have taken the line of defence usually resorted to by the 'tainted ministers' -- those facing trials in criminal courts -- that since no court has convicted them, a resignation is out of the question.
But she chose to self regulate, setting for herself her own code of ethics in public life and resigned, not only from being an MP but also from the office of profit.
What else can one expect from one's politicians?
There are others -- including the MPs of the Left and the allies of the Congress -- who have taken a stand that they will not resign.
If one looks at the issue logically, they too are right. Each office will have to examined on its own merit to check if it meets the definition of office of profit.
Perhaps the holders of those offices came to the conclusion that they do not hold an office of profit and hence will not resign.
The fact is that it is extremely rare for a person accused of any impropriety or illegality to self regulate and take the view that a doubt about the issue is sufficient to resign.
That is what Mrs Gandhi has done -- put herself above suspicion and doubt about the nature of the office she holds as NAC chairperson.
She has acted in the best traditions of Parliamentary democracy.
The language of political discourse on the other hand is so debased that her act of resigning is being described as a 'sacrifice' by her supporters, which it is not, and as 'the confession of a culprit' by her detractors, which it is far from being.
Her resignation is neither a sacrifice nor a confession of guilt.
Faced with charge that she was occupying an office of profit, she chose not to invite a court of law to sit in judgment over the issue, but made her own decision. One could almost say that she erred on the side of safety.
It is a standard-setting decision, a welcome trend in Indian politics.
About the proposed law -- whether it comes as an ordinance or a law -- what will be interesting to watch out for is how many offices of profit it will exempt from the preview of disqualification.
The longer the list of exemption, the more the danger of Indian democracy being hijacked by those who profit from it.
Indira Jaising is a distinguished lawyer
