Office of Profit

Office of Profit

News: The Election Commission (EC) has sent a notice to Jharkhand CM over an office-of-profit charge against him for allotment of a mining lease in his name last year.
• Under Section 9A of the Representation of the People Act, 1951, the CM could face disqualification for entering into a government contract.
• The Constitution of India does not define the Office of Profit. It has only mentioned it under Article 102 (1) and Article 191 (1).

What is 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.

What is the underlying principle for including ‘office of profit’ as criteria 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.

Reasons for controversies:
• At present, the Parliament (Prevention of Disqualification) Act, 1959, bars an MP, MLA or an MLC from holding any office of profit under the central or state government unless it is exempted. However, it does not clearly define what constitutes an office of profit.
• The term ‘office of profit’ has not been defined in the Constitution or in the Representation of the People Act, 1951.
• 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.
• 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 played by Judiciary in defining the ‘office of profit’:
The Supreme court in PradyutBordoloi vs Swapan Roy (2001) outlined the four broad principles for determining whether an office attracts the constitutional disqualification.
• Whether the government exercises control over appointment, removal and performance of the functions of the office.
• Whether the office has any remuneration attached to it
• Whether the body in which the office is held has government powers (releasing money, allotment of land, granting licenses etc.).
• Whether the office enables the holder to influence by way of patronage.