Context:
Recently, Ramesh Bais, who was transferred as Governor of Maharashtra, has left the Raj Bhavan in Ranchi without making 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.
Relevance:
GS II- Polity and Governance
Dimensions of the Article:
- What is the concept of ‘office of profit’?
- Article 102(1)
- According to the definition, what constitutes an ‘office of profit’?
- Protection against disqualification
What is the concept of ‘office of profit’?
- 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 holds 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.
Article 102(1)
A person shall be disqualified for being chosen as, and for being, a member of either House of Parliament:
- if he holds any office of profit under the Government of India or the Government of any State, other than an office declared by Parliament by law not to disqualify its holder;
- if he is of unsound mind and stands so declared by a competent court;
- if he is an undischarged insolvent;
- if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under any acknowledgement of allegiance or adherence to a foreign State;
- if he is so disqualified by or under any law made by Parliament Explanation For the purposes of this clause a person shall not be deemed to hold an office of profit under the Government of India or the Government of any State by reason only that he is a Minister either for the Union or for such State.
Article 191(1) provides for disqualification of a Member of Legislative Assembly or Legislative Council of a State with the same clauses from a through e (except in clause a – “parliament” is replaced by “Legislature of the State”.
According to the definition, what constitutes an ‘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?
- what is the power that comes with the position?
Protection against disqualification
- Provisions of Articles 102 and 191 also protect a legislator occupying a government position if the office in question has been made immune to disqualification by law.
- In the recent past, several state legislatures have enacted laws exempting certain offices from the purview of office of profit.
- Parliament has also enacted the Parliament (Prevention of Disqualification) Act, 1959, which has been amended several times to expand the exempted list.
- There is no bar on how many offices can be exempted from the purview of the law. (This raises an important concern. If a large number of legislators are appointed to such offices, their role in scrutinising the work of the government may be impaired.)
-Source: Indian Express
