What Constitutes an ‘Office of Profit’?. Examine the issue with relevant court cases.
- Members of Parliament (MPs) and Members of Legislature (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 hold 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 interestsof 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.
- The law does not clearly define what constitutes an office of profitbut the definition has evolved over the years with interpretations made in various court judgments.
- An office of profit has been interpreted to be a positionthat brings to the office-holder some financial gain, or advantage, or benefit.
- The amount of such profit is immaterial.
- In 1964, the Supreme Courtruled that the test for determining whether a person holds an office of profit is the test of appointment.
- Factors which are considered in this determination includes:
- 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
- Power that comes with the position
Constitution - about holding an ‘Office of Profit’
- Under Article 102 (1) and Article 191 (1) of the Constitution,an MP or an MLA (or an MLC) is barred from holding any office of profit under the central or state government.
- The articles clarify that “a person shall not be deemed to hold an office of profitunder the government of India or the government of any state by reason only that he is a minister”.
- Provisions of Articles 102 and 191 also protect a legislator occupying a governmentposition if the office in question has been made immune to disqualification by law.
- Parliament has also enacted the Parliament (Prevention of Disqualification) Act, 1959,which has been amended several times to expand the exempted list.
Judgments of the Supreme Court
- CM will be disqualified under Section 9A of the Representation of Peoples’ Act, 1951in view of three judgments of the apex court.
- Under that section, a contract has to be made for the supply of goodsor the execution of any work undertaken by the government.
- A constitution bench of the Supreme Court in 1964 in the case of CVK Rao vs Dentu Bhaskara Raohas held that a mining lease does not amount to a contract of supply of goods.
- In 2001, a three-judge bench of the apex court in the case of Kartar Singh Bhadana vs Hari Singh Nalwa & othersalso made it clear that a mining lease does not amount to execution of a work undertaken by the government.
- Even if the CM is disqualified by any authority,he can challenge it in the high court and in that case and as per a Supreme Court order, the adjudication has to be completed within four months.
- Under Article 164 (4),one person can be a minister for six months without being a member.
MORE INFORMATION
https://www.thehindu.com/news/cities/Delhi/the-office-of-profit-and-disqualification-under-constitution-of-india/article22594525.ece
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