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DAILY NEWS ANALYSIS

  • 07 November, 2019

  • 4 Min Read

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 Aam Aadmi Party for allegedly holding office of profit. The decision of the President rejecting 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 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.

Source: The Hindu


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