Office Of Profit : Important Topics for UPSC Exams


OFFICE OF PROFIT : Important Topics for UPSC Exams


News : The Election Commission has recommended that 20 MLAs of the Aam Aadmi Party in Delhi be disqualified as they held offices of profit .

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What is an ‘office of profit’?

  • The expression "office of profit" has not been defined in the Constitution or in the Representation of the People Act, 1951, It loosely relates to MLA or an MP holding  government office and receiving benefits from it.

  • 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.

Provisions for disqualifications?

Article 102(a) and Article 191(1)(a) of constitution for MP/MLA :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 un-discharged insolvent

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

What is the object of these provisions?

  1. To secure independence of the MPs and to ensure that Parliament/Legislature does not contain persons who have received favours or benefits from the executive and who consequently might be amenable to its influence.

  2. This is therefore to eliminate or reduce the risk of conflict between duty and self-interest among MPs.

  3. Designed to protect the democratic fabric of the country from being corrupted by executive patronage.

Is ECI’s stand justifiable in this case?

  1. As per 91st constitutional amendment of 2003 (Article 164 (1A) ), any state or central govt can not appoint minister more than 15% of the strength of house.(for UT like Delhi and puducherry this limit is 10%) . So to curb this limit and for political reasons these appointments are made Ex: Parliamentary secretaries.

  2. PILs filed in various High Courts on the matter have argued that the appointment of Parliament Secretaries is ultra vires the 91st Amendment of the Indian Constitution. EX : In 2005, in Citizen Rights Protection Forum vs Union of India and Others, Himachal Pradesh High Court quashed the appointment of Chief Parliamentary Secretaries and Parliament Secretaries.

  3. DELHI MLA (REMOVAL OF DISQUALIFICATION) ACT 1997 does not mention parliamentary secretary in the list.

Additional Points:

  1. A Parliamentary Secretary is appointed by the Prime Minister to assist a cabinet Minister, or, in some cases, to assist several cabinet Ministers or the Prime Minister

  2. It was only with retrospective effect that it passed a bill to exempt the post of parliamentary secretary from 'office of profit' tag in case of Delhi. It was denied assent by the president

How to determine if an office falls under office of profit ambit?

  1. Guru Gobind Basu vs Sankari Prasad Ghosal & others (AIR 1964 SC 254): Supreme Court ruled that decisive test for determining whether a person holds any office of profit under the Government is the test of appointment.

The first and foremost question to be asked is: does the Government have the power to appoint to and remove from an office? If the answer is in the negative, no further enquiry is called for. If the answer be positive, further probe has to go on. The totality of the facts and circumstances reviewed in the light of the provisions of the relevant Act, if any, would lead to an inference being drawn if the office held is under the Government. On account of holding of such office, would the Government be in a position to so influence him or her as to interfere with independence in functioning or would the holding of the two offices one under the Government and the other of MP involve a conflict of interests inter se? This is how the issue has to be approached and resolved.

  1. Jaya bachhan vs union of india – what is material is not whether the person actually received any remuneration or pecuniary gains, but whether the office he or she holds is itself of profit.

Mechanism for determination of Office of Profit at Parliamentary level:

  1. Joint Committee on office of profit has been constituted consisting of 10 members from the Lok Sabha and five members from the Rajya Sabha. The function of the Committee, inter alia, is to undertake a continuous scrutiny of the composition and character of various government appointed bodies and report to both houses as to the membership of which of these ought to disqualify a person for membership of Parliament.

  • The Committee generally applies two tests in deciding whether a member of a body ought to be exempted from disqualification: (1) the emoluments and allowances attached to the members; and (2) the nature and function of the body.

  • If a member of a body gets only compensatory allowance and the body exercises merely an advisory function, then no disqualification would arise. But if the allowances given are more than compensatory allowance and/or the body exercises executive and financial powers and is in a position to wield influence and patronage, then its membership would not be excluded from disqualification

Way Forward :

  1. Unlike in India, in England whenever a new office is created, the law also lays down whether it would be an office of profit or not, A similar procedure can be followed in India as well.

  2. State legislatures and Parliament must respect the constitutional restrictions and must not uncheck the checks and balances which are enjoined by the constitution for effective functioning of the Indian polity

MCQ’s

  1. On which of the following grounds can a member of parliament be disqualified or removed from the office as per constitution?

  1. If he is of unsound mind

  2. If he is un-discharged insolvent

  3. If he is convicted of a bribery case

  4. For occupying office of profit

Which of the above are correct?

  1. A and B only

  2. A,B,C only

  3. A,B,D only

  4. All of the above

Correct Answer : C

  1. Which of the following statements regarding 91st constitutional amendment is/are correct?

  1. It restricted the number of ministers to parliament and all state legislatures to 15% of strength of house.

  2. It strengthened the anti defection law by changing the criteria for qualification as defection.

Which of the statement(s) are correct?

  1. 1 only

  2. 2 only

  3. 1 and 2 both

  4. None of the above

Correct Answer : b (2 only )

To strengthen the Anti-defection law, Limit was increased from 1/3 to 2/3 members of the party in the 91st Amendment, thus making it more difficult for individuals and factions within the party to defect.

  1. Consider the following statements regarding office of profit

  1. Parliament can enact a law stating which office does not qualify as office of profit as per constitution.

  2. Committee on office of profit is a joint committee of Lok Sabha and Rajya Sabha

Which of the above statement(s) is/are correct?

  1. 1 only

  2. 2 only

  3. 1 and 2

  4. None of the above

Correct Answer : C

MAINS Questions :

  1. What do you understand by office of profit. What is the objective of keeping office of profit as a criteria for disqualification of MP/MLA’s. Is it fulfilled in the current political context? Examine. (15)

  2. The vagueness of the term office of profit has been a bone of contention to many states/UT’s in the recent times. Is there any objective criteria in place to determine office of profit?. Delineate the way out keeping in  mind the principle underlying this provision

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