The “Office of Profit” explained


BY HEIGRUJAM PREMKUMAR

The controversy surrounding who holds an office of profit and what makes an office an office of profit has come up again. This time it started when President Pranab Mukherjee withheld his assent to the disqualification removal bill passed by the Aam Aadmi Party-ruled  Delhi Legislative Assembly.

In this article, no attempt is made to engage in any political debate. The intention is to explain what is “Office of Profit” in the Indian context.

Articles 102 and 191 of the Indian Constitution basically speaks of the disqualification of a Member of Parliament or a member of a state legislative assembly respectively and one of the grounds of disqualification is holding an office of profit.

Article 102 (1) says that:

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.

Article 191 (1) says that:

A person shall be disqualified for being chosen as, and for being, a member of the Legislative Assembly or Legislative Council of a State if he holds any office of profit under the Government of India or the Government of any state specified in the First Schedule, other than an office declared by the Legislature of the State by law not to disqualify its holder.

In short, both Constitution Articles 102 and 191 say that a person shall be disqualified for being chosen and for being a member of the House if he holds any office of profit under the Government of India or the government of any state.

There is no law which defines the term “Office of Profit”. However, various decisions of the Supreme Court of India have laid down the conditions for deciding whether an office is an office of profit. An office will be considered an office of profit if:

  1. the government makes the appointment;
  2. the government has the right to remove or dismiss the holder;
  3. the government pays the remuneration;
  4. the holder performs the functions for the government; and
  5. the government exercises control over the performance of those functions.

The fundamental point in all the Supreme Court decisions is that unless some remuneration is attached to the office or the office is capable of yielding some pecuniary gains, it would not be an office of profit.

Compensatory allowances do not constitute any profit because these are meant to meet the out-of-pocket expenses.

So what is not an office of profit? An office to which no salary or remuneration is attached or which is not capable of yielding a profit is not an office of profit.

Who has the final decision when a question of disqualification of a member arises?

Regarding the Parliament, under Article 103 of the Indian Constitution, if any question arises as to whether a member is subjected to disqualifications under Article 102 (1), such a question shall be referred for the decision of the President and his decision shall be final.

However, before giving any decision on any such question, the President shall obtain the opinion of the Election Commission and shall act according to such opinion.

Regarding state legislatures, Article 192 provides that such questions will be referred for the decision of the Governor and his decision shall be final. However, he too shall act according to the opinion of the Election Commission.

Both the President as well as the Governor are thus bound to act according to the opinion of the Election Commission (on these questions).

Can an Act of Parliament or State legislature remove the disqualification retrospectively?

As far as state legislature is concerned, according to the Supreme Court of India, yes. It has happened in Rajasthan. Thus, State legislature can pass an Act removing the disqualification. According to the Supreme Court, there is nothing in the words of the Article 191 to indicate that this declaration cannot be made with retrospective effect.

In fact, Articles 73 and 162 of the Indian Constitution declare that the Union executive and the state executive respectively have power to take executive action on all matters on which Parliament and State legislature have power to legislate.

Finally, who is not deemed to hold any office of profit in India?

The following are not deemed to hold any office of profit in India:

  1. A sitting President of India.
  2. A sitting Vice-President of India.
  3. The Governor of any state.
  4. A Minister of the Union Parliament.
  5. A Minister of any State legislature.

Inputs from The Hindu article.
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