From UPSC perspective, the following things are important :
Prelims level : Office of Profit
Mains level : Read the attached story
The Election Commission (EC) has sent a notice to Jharkhand CM over an office-of-profit charge against him for allotment of a mining lease in his name last year.
Why in news?
- Under Section 9A of the Representation of the People Act, 1951, the CM could face disqualification for entering into a government contract.
- The Constitution of India does not define the Office of Profit. It has only mentioned it under Article 102 (1) and Article 191 (1).
What is ‘Office of Profit’?
- MPs and MLAs, as members of the legislature, hold the government accountable for its work.
- The essence of disqualification 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 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.
What governs the term?
- At present, the Parliament (Prevention of Disqualification) Act, 1959, bars an MP, MLA or an MLC from holding any office of profit under the central or state government unless it is exempted.
- However, it does not clearly define what constitutes an office of profit.
- Legislators can face disqualification for holding such positions, which bring them financial or other benefits.
- Under the provisions of 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.
An undefined term
- The officials of the law ministry are of the view that defining an office of profit could lead to the filing of a number of cases with the Election Commission and the courts.
- Also, once the definition is changed, one will also have to amend various provisions in the Constitution including Article 102 (1) (a) and Article 109 (1) (a) that deal with the office of profit.
- It will have an overarching effect on all the other sections of the Constitution.
Factors constituting an ‘office of profit’
- The 1959 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.
What 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, and
- the power that comes with the position.