A person will be disqualified if he holds an office of profit under the central or state government, other than an office declared not to disqualify its holder by a law passed by Parliament or state legislature. UPSC aspirants

TOPIC

  • Office of Profit
  • Legal cases related to office of profit

OFFICE OF PROFIT

  • Office of profit has not been defined in the constitution or under Representation of People Act (RPA), 1951 but different courts have interpreted it to mean a position with certain duties that are more or less of public character.
  • If an MLA or an MP holds a government office and receives benefits from it, then that office is termed as an “office of profit”.
  • A person will be disqualified if he holds an office of profit under the central or state government, other than an office declared not to disqualify its holder by a law passed by Parliament or state legislature.
  • Essence is that legislators should be able to carry out their duties in a free manner without any obligation to government of the day.

Constitutional Provisions:

Under Article 102 (1) and Article 191 (1), an MP or an MLA is barred from holding any office of profit under the central or state government. Also under RPA 1951, holding an office of profit is grounds for disqualification.

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.

Legal provisions:

Parliament (Prevention of Disqualification) Act, 1959 lists a wide- ranging number of offices that are exempted from disqualification.

What is the underlying principle for including ‘office of profit’ as criterion for disqualification?

  • Makers of the Constitution wanted that legislators should not feel obligated to the Executive in any way, which could influence them while discharging legislative functions.
  • In other words, an MP or MLA should be free to carry out her duties without any kind of governmental pressure. The intent is that there should be no conflict between the duties and interests of an elected member.
  • 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.

LEGAL CASES RELATED TO OFFICE OF PROFIT

  • Rulings by the court: The Supreme Court in Pradyut Bordoloi vs Swapan Roy (2001) outlined the four broad principles for
    determining whether an office attracts the constitutional disqualification.
  • These are:
    •  whether the government exercises control over appointment, removal and performance of the functions of the office
    •  whether the office has any remuneration attached to it
    • whether the body in which the office is held has government powers (releasing money, allotment of land, granting licenses etc.).
    • whether the office enables the holder to influence by way of patronage.
  •  The Supreme Court, while upholding the disqualification of Jaya Bachchan from Rajya Sabha in 2006, had said that for deciding the question as to whether one is holding an office of profit or not, Office of profit has not been defined in the constitution or under Representation of People Act (RPA),1951 but different courts have interpreted it to mean a position with certain duties that are more or less of public character.

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