Office-of-Profit

• A "Second opinion" was requested by the Governor of Jharkhand in the office-of-profit case involving the Chief Minister's demand for dismissal.

About

• A political crisis in the state of Jharkhand resulted from the Election Commission sending its decision to the Governor of the state in response to a petition by the BJP asking for the CM's disqualification from the Assembly in the office-of-profit case.

Office of Profit

The Constitution doesn't define "office of profit." However, the Election Commission has noted the following five criteria for what constitutes an office of profit based on prior decisions:

• Whether the government appoints the candidate
• whether the holder is subject to removal or dismissal by the government.
• If the government provides compensation.
• What are the “Office of profit” holders’ purposes?

Does the government impose any restrictions?

• As members of the legislature, MPs and MLAs hold the government responsible for its actions. The core of the office of profit law's disqualification is the idea that if lawmakers hold a "office of profit" within the government, they may be vulnerable to government influence and may not carry out their constitutional duties fairly.
• The idea is that an elected member's obligations and interests shouldn't conflict with one another. Thus, the office of profit law merely seeks to uphold the Constitution's fundamental tenet of the separation of powers between the legislative and executive branches.

What Does the Constitution Say about the Office of Profit?

• An MP or MLA (or MLC) is not permitted to hold any profit-making positions within the federal or state governments, as per the provisions of Article 102 (1) and Article 191 (1) of the Constitution.
• According to the Constitution, the number of ministers, including the Chief Minister, must not exceed 15% of the total assembly members (10% in Delhi, a union territory with a legislature).
• A legislator who holds a government position is also protected by the provisions of Articles 102 and 191 if the office in question has been declared exempt from disqualification by law.
• A number of state legislatures have recently passed laws exempting particular offices from the definition of an office of profit. The Parliament (Prevention of Disqualification) Act, 1959, which was also passed by Parliament, has undergone numerous amendments to broaden the exempted list.
• Article 103: Resolution of issues pertaining to member disqualifications
• If there is any doubt regarding whether a member of either House of Parliament is now subject to one of the disqualifications listed in paragraph (1) of Article 102, the President will be consulted, and his decision will be final.
• Before giving any decision on any such question, the President shall obtain the opinion of the Election Commission and shall act according to such opinion.

Read Also: Election Commission & Election Symbol

Office of Profit

Syllabus subtopic: Indian Constitution- historical underpinnings, evolution, features, amendments, significant provisions and basic structure.

News: President Ram Nath Kovind has rejected a petition demanding disqualification of 11 AAP MLAs belonging to the Aam Aadmi Party for allegedly holding the office of profit. The decision of the President to reject the plea is based on an opinion rendered by the Election Commission.

Prelims focus: About office of profit and its conditions

Mains focus: Criticisms and controversies and ways to address them.

About the issue

1. In March 2017, a petition was filed before the President seeking disqualification of the lawmakers claiming that they were enjoying office of profit by being co-chairpersons of district disaster management authorities in 11 districts of Delhi.
2. The issue was referred to the Election Commission which gave an opinion in August this year that holding the office of co-chairperson of a district disaster management authority does not attract disqualification as MLA since there is no remuneration by way of salary and allowances.
3. As per law, the President accepts the opinion of the Election Commission in cases of office of profit.

About the ‘office of profit’?

• If an MLA or an MP holds a government office and receives benefits from it, then that office is termed as an “office of profit”.

• A person will be disqualified if he holds an office of profit under the central or state government, other than an office declared not to disqualify its holder by a law passed by Parliament or state legislature.

Criteria to disqualify an MP or MLA?

Basic disqualification criteria for an MP are laid down in Article 102 of the Constitution, and for an MLA in Article 191. They can be disqualified for:

a) Holding an office of profit under government of India or state government;

b) Being of unsound mind;

c) Being an undischarged insolvent;

d) Not being an Indian citizen or for acquiring citizenship of another country.

What is the underlying principle for including ‘office of profit’ as criterion for disqualification?

Makers of the Constitution wanted that legislators should not feel obligated to the Executive in any way, which could influence them while discharging legislative functions. In other words, an MP or MLA should be free to carry out her duties without any kind of governmental pressure. The intent is that there should be no conflict between the duties and interests of an elected member.

The office of profit law simply seeks to enforce a basic feature of the Constitution- the principle of separation of power between the legislature and the executive.

Controversies:

1. The expression “office of profit” has not been defined in the Constitution or in the Representation of the People Act, 1951.
2. It is for the courts to explain the significance and meaning of this concept. Over the years, courts have decided this issue in the context of specific factual situations.
3. But, articles 102 (1) and 191(1)which give effect to the concept of office of profit prescribe restrictions at the central and state level on lawmakers accepting government positions.

Role of Judiciary:

The Supreme Court in Pradyut Bordoloi vs Swapan Roy (2001) outlined the four broad principles for determining whether an office attracts the constitutional disqualification.

1. First, whether the government exercises control over appointment, removal and performance of the functions of the office
2. Second, whether the office has any remuneration attached to it
3. Third, whether the body in which the office is held has government powers (releasing money, allotment of land, granting licenses etc.).
4. Fourth, whether the office enables the holder to influence by way of patronage.

The Supreme Court, while upholding the disqualification of Jaya Bachchan from Rajya Sabha in 2006, had said that 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.