Office of profit case against Jharkhand CM
26-08-2023
11:53 AM
1 min read
What’s in today’s article?
- Why in news?
- What is ‘Office of Profit’?
- What is the need for such a concept?
- What are the constitutional provisions with respect to Office of Profit?
- Who has the final authority to disqualify an MLA/MLC?
- Is the Governor bound to act in accordance with the EC’s opinion?
- News Summary: Office of profit case against Jharkhand CM
Why in news?
- In the alleged office of profit case against Jharkhand CM Hemant Soren, Governor Ramesh Bais — who was transferred to Maharashtra— declined to act.
- He did not make public the Election Commission’s opinion on whether Chief Minister Hemant Soren should be disqualified for allegedly allocating a mining lease to himself when he was the mining and forest minister of Jharkhand.
What is ‘Office of Profit’?
- The law does not clearly define what constitutes an office of profit but the definition has evolved over the years with interpretations made in various court judgments.
- An office of profit has been interpreted to be a position that brings to the office-holder some financial gain, or advantage, or benefit. The amount of such profit is immaterial.
- In 1964, the Supreme Court ruled that the test for determining whether a person holds an office of profit is the test of appointment.
- Several factors are considered in this determination including factors such as –
- Whether the government is the appointing authority,
- Whether the government has the power to terminate the appointment,
- Whether the government determines the remuneration,
- What is the source of remuneration, and
- The power that comes with the position.
What is the need for such a concept?
- MPs and MLAs, as members of the legislature, hold the government accountable for its work.
- The essence of disqualification under the office of profit law is if legislators hold an ‘office of profit’ under the government, they might be susceptible to government influence, and may not discharge their constitutional mandate fairly.
- The intent is that there should be no conflict between the duties and interests of an elected member.
- Hence, 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.
What are the constitutional provisions with respect to Office of Profit?
- The criteria for disqualifications from membership of a state legislature are mentioned in the Article 191 of the Constitution of India.
- Similarly, the disqualification criteria are laid down in the Article 102 relating to the membership of both the houses of Parliament.
- Under Article 191 (1), a person is disqualified for being chosen as, and for being, a member of legislative assembly or legislative council –
- 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 the legislature of the state.
Who has the final authority to disqualify an MLA/MLC?
- Under the Article 192 of the Constitution, it has been mentioned that that if any question arises as to whether or not the member of a house of the legislature of a state has become subject to any of the disqualification criteria, the question shall be cited to the Governor of the state for decision.
- The Governor will act as per the opinion of the Election Commission (EC).
- His decision shall be final and may not be reviewed by any court of law.
Is the Governor bound to act in accordance with the EC’s opinion?
- Article 192(2) says that the Governor shall act according to the EC’s opinion.
- However, it does not lay down a time frame for the Governor to act.
- In the present case involving the CM of Jharkhand, EC had sent its opinion to the Governor in a sealed envelope on August 25.
- Its opinion is not in the public domain and the EC has said its communication with the Governor is privileged.
News Summary: Office of profit case against Jharkhand CM
- Ramesh Bais, who was transferred as Governor of Maharashtra recently, chose not to act on the EC’s opinion on the alleged Office of profit case against Jharkhand CM.
- The Governor sat on the EC’s opinion for more than five months from August last year. It is now up to the new Governor of Jharkhand, C P Radhakrishnan, to act on the EC’s opinion.
What are the allegations against the Chief Minister?
- In February 2022, allegations were raised that the current chief minister Hemant Soren had misused his post and allocated a mining plot to himself.
- It was alleged that the CM allotted a stone quarry mine of 0.88 acres for himself in Anagda Ranchi.
- It was claimed that this allocation was in violation of the provisions of The Representation of the People Act, 1951 and the Prevention of Corruption Act, 1988.
- In May 2022, the Election Commission sent chief minister Hemant Soren a notice seeking his side of the story.
- The EC has sent its final report to the Jharkhand Governor Ramesh Bais. The Governor has not yet announced his decision or how he proposed to go about executing it.
Q1) What is Election Commission of India (ECI)?
The Election Commission of India is an autonomous constitutional authority responsible for administering Union and State election processes in India. The body administers elections to the Lok Sabha, Rajya Sabha, State Legislative Assemblies in India, and the offices of the President and Vice President in the country.
Q2) What is the composition of Election Commission in India?
Since its inception in 1950, the election commission had been a one-member body with only the Chief Election Commissioner (CEC) as its sole member. Later, two more election commissioners were appointed to the body and the Election Commission became a multi-member body with 3 election commissioners. The President appoints the CEC and other election commissioners.
Source: Explained | The demand for a Greater Tipraland by the TIPRA Motha | Tripura Tribal Areas Autonomous District Council | Indian Express