Office of Profit

What is the concept of ‘Office of Profit’?

The concept of "Office of Profit" in India relates to positions held by Members of Parliament or Members of the Legislative Assembly (MPs or MLAs) that may provide financial gain or benefit. 

• The origin of the term ‘Office of Profit’ can be found in the English Act of Settlement, 1701. Hence, the concept of ‘office of profit’  is borrowed from the UK.
• The constitution and Representation of People’s Act,1951 does not have a clear definition of what constitutes an office of profit, but the definition has been developed through various court judgments. 
• The test for determining whether a person holds an office of profit is based on the test of appointment, as per the Supreme Court's ruling in Pradyut Bordoloi vs Swapan Roy (2001). This test involves evaluating multiple factors, including: 

• whether the government is responsible for appointing the individual, 
• if the government has the authority to terminate the appointment, 
• if the government sets the remuneration for the position, 
• What is the source of the remuneration, and the extent of power or authority associated with the position.

 

What are the constitutional and legal provisions pertaining to the Office of Profit?

 

Table: Constitutional and legal provisions related to office of profit

 

Why is "office of profit" a ground for disqualification?

The underlying concept behind “office of profit” as a ground for disqualification is the principle of separation of power between the functionaries of a state like the legislative, judiciary, and executive. 

• Upholding the constitutional responsibility: The essence of disqualification behind holding an office of profit is that legislators who hold such positions may be influenced by the government and may not fulfill their constitutional responsibilities of holding the executive accountable to the legislature. 
• Separation of power: The office of profit law aims to enforce a basic feature of the Constitution, which is the ‘Separation of Power’ between legislature and executive. 
• Ensuring checks and balances: Disqualification based on the office of profit ensures the isolation, immunity, or independence of one branch of government from the actions or interference of another and ensures checks and balances.
• Preventing conflict between duties and interests: The object of enacting Articles 102 and 191 is that there should not be any conflict between the duties and interests of an elected member and to see that such an elected member can carry freely and fearlessly his duties without being subjected to any kind of governmental pressure.

 

What are some examples of issues pertaining to the office of profit in India?

• In 2006, the Congress party president was accused of holding an office of profit by being an MP as well as holding the office of the chairperson of the National Advisory Council, the latter being a post with the rank of a Cabinet minister. Later on, the Congress president resigned from the Lok Sabha membership.
• In 2006, SP Rajya Sabha member Jaya Bachchan was accused to hold the post of the Chairperson of the Uttar Pradesh Film Development Corporation. Later, She was disqualified by Election Commission for holding the office of profit.
• In 2018, 20 MLAs of the Delhi Legislative Assembly were appointed parliamentary secretaries and were later disqualified by the President, based on the recommendation of the Election Commission, for holding an "office of profit".
• In 2022, Jharkhand Chief Minister was accused of holding an office-of-profit by granting himself a stone chips mining lease. The notice has been issued by the Election Commission for holding office of profit.

 

What are the various supreme court judgments pertaining to the office of profit?

Many times in the past, the Supreme Court has interpreted the law related to the office of profit.

• CVK Rao v. Dentu Bhaskara Rao(1964): Supreme Court constitution panel ruled that a mining lease does not amount to a contract of supply of goods.
• Kartar Singh Bhadana vs. Hari Singh Nalwa & others(2001): A three-judge panel of the Supreme Court made it clear that a mining lease does not amount to the execution of a work undertaken by the government.
• Jaya Bacchan v. Union of India(2006): The court held that an office of profit is an office that is capable of yielding a profit or pecuniary gain. The actual ‘receipt’ of profit is not necessary, the ‘potential’ to yield the profit is sufficient.
• UC Raman case(2014): Constitution allows a legislature to pass a law to grant exemption to any office of profit holder.
• The Calcutta High Court judgment in 2015 stated that the appointment of legislators as parliamentary secretaries is an attempt to bypass the constitutional limit on the number of ministers, as it confers the rank of a junior minister on the legislator. 
• Similarly, in 2009, the Bombay High Court also held that appointing parliamentary secretaries of the rank and status of a Cabinet Minister is in violation of Article 164 of the Constitution, which limits the number of ministers in an assembly.

 

What can be the way forward in dealing with the issues surrounding the Office of Profit in India?

The following are the major recommendations that can prevent the misuse of the provisions of the office of profit in India:

• 2nd ARC recommendation: The constitution or the Representation of People’s Act, 1951 should be amended to define the office of profit. The 2nd ARC has also recommended that all offices with executive decision-making powers and financial control be treated as an office of profit.
• The Parliament’s Joint Committee on Office of Profit has suggested additional parameters like remuneration, powers, and patronage to determine the Office of Profit.
• The National Commission to Review the Working of the Constitution suggested that the Election Commission should be mandated to determine the offices of profit. 

 

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