Public Administration Mains 2018 : Model Question and Answer - 65
(Public Administration Paper II / Chapter: Union Government and Administration)
(Current Based) Question: What is Office of Profit row and related disqualification?(35 Marks/450Words)
Model Answer:
An office of profit is a term used in a number of national constitutions to refer to executive appointments. A number of countries forbid members of the legislature from accepting an office of profit under the executive as a means to secure the independence of the legislature and preserve the separation of powers.
The expression "office of profit" has not been defined in the Constitution or in the Representation of the People Act, 1951.
The term is used in Article 102 (1)(A) of the Indian Constitution which bars a member of the Indian Parliament from holding an office that would give its occupant the opportunity to gain a financial advantage or benefit. It refers to a post under central/state government which yields salaries, perks and other benefits. The actual amount of profit gained during the violation has no bearing on its classification.
India had the Parliament (Prevention of Disqualification) Act, 1950, 1951, and 1953 exempting certain posts from being recorded as offices of profit. All these Acts were replaced by the Parliament (Prevention of Disqualification) Act, 1959. By virtue of section 3 of the said Act, certain offices did not disqualify their holders from being members of either houses of Parliament.
The representatives cannot hold an office of profit under section 9 (A) of the Representation of People Act and Article 191 (1)(A) of the Constitution also.
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. Thus the final interpretation and decision whether a person is disqualified or not rests with the courts and not with Parliament.
Joint Committee on office of profit 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. For instance, when Pranab Mukherjee became Deputy Chairperson of the Planning Commission under Prime Minister P.V. Narasimha Rao, the office was exempted by adding it to the list in the Parliament (Prevention of Disqualification) Act, 1959.
Examples
(1) In 2006, Indian National Congress President and MP, Sonia Gandhi, resigned several posts under pressure from political opposition who asserted that the posts were 'offices of profit' and thus unlawful.
(2) Jaya Bachchan was disqualified from the Rajya Sabha, while she was also chairperson of the Uttar Pradesh Film Development Federation.
(3) Two Uttar Pradesh Legislative Assembly members, Bajrang Bahadur Singh and Uma Shankar Singh, were disqualified in January 2015 due to holding government contracts
(4) The Election Commission’s decision to recommend the disqualification of 20 AAP MLAs for holding an “office of profit” to the President. (Total Words- 454)
Valuable inputs from (1) The Indian Express Web Desk
(2) Office of Profit and disqualification by K. Subramanian Published in The Indian Express
(Linkages: Indian Constitution and Office of Profit, Office of Profit and Disqualification, Joint Committee on office of profit and Test of appointment)