OFFICE OF PROFIT

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This article is written by Purvika Sanjay Kirmire of 5^th Semester of GLC Mumbai, an intern under Legal Vidhiya

Abstract

This article focuses on what office of profit is, and what it means even when the constitution has not defined it. How this terminology is used in some of the articles of the constitution of India and judgments of courts which have laid down the criterion for office of profit are discussed in the article. MP or an MLA who is the part of the legislature, their main role is to keep a check on Government, because it is clearly mentioned in our constitution that the executive is responsible to the legislature for their actions, if these MPs and MLAs start working under the government if they are holding any office of profit which is giving them benefits/ facilities, they won’t be able to keep a check on the Government’s action, which is the most important principle of our democratic state. This is discussed in the article, how it is the role of the legislature to keep a check on the executive, and if the legislature starts holding office of profit under the Government excepts some posts, this would lead to their disqualification.

Keywords

Facility, profit, duty, ineligible, authority, remuneration, disqualify, principle criterion, separation, check, ultra-vires, authority, influence, chosen

Introduction

Office of profit means the post on which a person is entitled to take any facility from the government. An MLA or MP’s position in the government is deemed to be one of profit if they get incentives for it. An individual shall be disqualified if they occupy a profit-making position within the federal or state government unless that position has been specifically stated in a statute passed by parliament or the state legislature not to disqualify its bearer.

In the Indian constitution in relation to the major constitutional posts like that of, in Lok Sabha, Rajya Sabha, president, central or state council of minister, governor, and vice president, it is said that if a person holds an office of profit under the central or state government that person will not be eligible to be appointed to the posts.

Legal perspective

Office of profit is not defined in the constitution but it is mentioned in the constitution under article 58, article 102, article 158, and article 191. Apart from this section 9 of the Representation of the People Act, 1951 also makes provisions regarding the office of profit. According to this section, a person holding the office of profit is ineligible to contest the election of an MP or MLA or to be elected as an MP or MLA.

The requirements for disqualifying an MP and an MLA are set forth in Article 102(1)a and Article 191(1)a of the Indian Constitution, respectively. They can be disqualified for holding an office of profit under the government of India or the State Government. The definition of Office of profit has evolved with various judgments of the court. The idea behind this is that a member of parliament or state legislative assembly or state legislative council should not be involved in any other work, his/her main duty is to be present in the parliament or legislature and to raise voice for the interests of the people who have elected them.

Article 58 of the constitution of India lays down the qualifications for a person to contest the presidential elections. A person who occupies a profit-making position with the Indian government, a state government, a municipal government, or another authority that is under the control of any of the above-mentioned Governments should be ineligible for the presidential election. Just because a person is the President or Vice President of the Union or the Governor of any State or is a Minister either for the Union or for any State, he/she shall not be deemed to occupy a profit-making position under the governments of India or any State for the purpose of this article.

The disqualifications for membership in Lok Sabha or Rajya Sabha are outlined in Article 102 of the Indian Constitution.A person who holds a profit-making position with the Government of India or a State, with the exception of an office whose holder is not disqualified by law due to the parliamentary declaration, shall be disqualified for being chosen as, and for being, a member of Lok Sabha or Rajya Sabha. A person who is disqualified by or under any law established by Parliament is ineligible to be chosen as, and ineligible to serve as, a member of either House of Parliament. A person is not considered to occupy a profit-making position under the governments of India or any State for the purpose of this clause just because he serves as a minister for either the Union or that State which means that such exclusion cannot be based on holding a ministerial position within the Union government. Other factors for a member of parliament’s disqualification are also listed in the article. According to Article 103, the president’s decision will be considered if there is any doubt as to whether a member has received this kind of disqualification. The president must consult the election commission before acting.

Article 191 of the constitution of India lays down the Disqualifications for membership of the Legislative Assembly or Legislative Council of a State. A person holding any office of profit under the Government of India or Government of any State included in the First Schedule will be disqualified for being elected as, and for being, a member of the Legislative Assembly or Legislative Council of a State, unless the position stated by Parliament by legislation not to disqualify its bearer.

A person who is disqualified by or under any law established by Parliament is ineligible to be chosen as, and ineligible to serve as, a member of the Legislative Assembly or Legislative Council of a State. A person is not considered to occupy a profit-making position under the Government of India or any of the States included in the First Schedule simply because he serves as a minister for the Union or that State for the purposes of this clause which means that such exclusion cannot be based on holding a ministerial position within the state government. Other factors for a member of state legislature’s disqualification are also listed in the article.

Article 158 of the constitution of India states the conditions of the office of the Governor. The Governor will be disqualified if he/she is holding office of profit under the Government of India or under the Government of that state basically a Governor is not entitled to hold any office of profit.

In the constitution, it is expressly provided for in Article 58 and Article 158, that a person shall not be deemed to hold the office of profit only on the basis that he is president, governor, or minister of central or state government. This means that being a president, governor or minister of central or state government will not come under the purview of the office of profit.

The Prime Minister or Chief Minister is the head of all three types of ministers in the Council of Ministers, which also includes Cabinet Ministers, Ministers of State, and Deputy Ministers. These Council of Ministers are exempted from the office of profit condition.

Supreme Court with its judgments in Pradyut Bordoloi vs Swapan Roy (2001)[1] and Biharilal Dobray v. Roshan Lal Dobray, 1984[2] and other subsequent judgments laid down the principle criterion, which is not exhaustive and can further evolve with new judgments, for determining whether a person holds an office of profit is his appointment which are:

Whether the government is the appointing authority?

Does the government have the right to remove or dismiss the incumbent?

Does the government fix the remuneration related to that post?

What is the source of remuneration?

What are the functions of the incumbent and is he doing these tasks for the government?

Does the government have any kind of influence over how these works are carried out?

Jaya Bachchan V. Union of India[3]

Jaya Bachan was a member of Rajya Sabha. She was appointed as a chairperson of the Up Film Development Council by the State. By being the chairperson of this office, she was entitled to get a sum of five thousand per month along with entertainment expenditure, staff, car, car driver, telephone service at home and office, free accommodation, medical treatment for her as well as her family. By being the chairperson of the Up film development council, she gets all these facilities. On this ground that by being the chairperson of the Up film development council she was holding office of profit her Rajya Sabha membership was challenged. According to Article 102 of the Indian Constitution a person holding any office of profit under the Government of India or Government of any State, except the office declared by Parliament by law not to disqualify its bearer, shall be disqualified for being chosen as, and for being, a member of Lok Sabha or Rajya Sabha. President under article 103 (which states that if a question of disqualification arises, that shall be decided by the president, and his decision will be final) after consulting with the Election Commission of India disqualified Jaya Bachchan on the ground of holding office of profit because by being the chairperson, she was getting pecuniary gains along with the other facilities. Jaya Bachchan challenged this disqualification in SC, she contended that she has not been receiving any facility and she is neither using these facilities of telephone services, she has neither reimbursed the traveling cost therefore there is no office of profit. SC in its decision stated that as a chairperson she was getting all these facilities which constituted an office of profit and dismissed the writ petition.

Our constitution is based on the doctrine of separation of power. Power and functions are divided between the executive, legislature, and judiciary. The power to make rules is with the Legislature, to check if the law enacted by the constitution is in conformity with the constitution or not and if it is ultra-vires with the constitution then to invalidate/ strike down such law is with the Judiciary and the function of the executive is to implement these laws at the ground level. The powers and functions of all these three organs of the government are defined in the constitution, but still, there can be seen an overlap between the powers of the Executive and Legislature. The Prime Minister or Chief Minister is the head of all three types of ministers in the Council of Ministers, which also includes Cabinet Ministers, Ministers of State, and Deputy Ministers. They are members of the legislature as well as they are also executives. Holding these positions is under the exemption of office of profit. CM is a member of the legislative assembly and as a CM is also an executive, Mr. Hemant Soren, who is the Chief Minister of Jharkhand, allocated a Mining lease to his own firm and to his brother, so the question is whether he used his position for his own interest, according to the Section 9A of Representation of People Act, MP or MLA shall be disqualified for holding the office of profit and also under Article 191 of the constitution of India an MLA can be disqualified for holding the office of profit and therefore a recommendation was made by the election commission to the governor to disqualify Mr. Hemant from the position of MLA and if governor disqualifies him as an MLA, he will have to vacate his position as CM.

It is the role of all three organs to cross-check each other and ensure the balance of power and cross-check misuse of power. When an MP or an MLA becomes a minister he becomes an executive and according to the Constitutional Amendment Act 2003, Article 75(1A) states that the total number of ministers including the prime minister in the council of ministers shall not exceed 15% of the total number of members of the House of the People and according to Article 164(1A), the entire number of ministers of a state, including the chief minister (CM), shall not be more than 15% of the total number of the members of that state’s Legislative Assembly. Article 75(3) states that the Council of Ministers shall be collectively responsible to the House of People and according to Article 164, the Council of Ministers shall be collectively responsible to the Legislative Assembly of the state, it means that the legislature holds the government responsible for its actions. To avoid the conflict-of-interest MPs and MLAs are disqualified on the ground of office of profit so that they can hold the government accountable for its actions without partiality.

Conclusion

If MP or an MLA will work with the government or are holding some office of profit under the government, how will he question the government, where the government has done something wrong, maybe he’ll try to save the government and if does so then the role as a legislative member comes to end. To follow this principle of separation of power the concept of office of profit is of great importance. This will create a sense of responsibility in the executive that is the government that their action will be questioned in the legislature, they cannot arbitrarily take steps for their interests, therefore legislature in order to question should not hold any office of profit under the government which would stop them from performing their role and questioning the government.

Reference