OFFICE OF PROFIT

• In the most recent ‘office of profit’ controversy, The Andhra Pradesh government protected its MP from the ‘office of profit’ rulebook by moving an ordinance. The MP was appointed as special representative of the state. The matter was pending with the Parliament’s Joint Committee on Office of Profit. The President has now referred the matter to the Election Commission. • ‘Office of profit’ has been doing the rounds in the news earlier when the President disqualified 20 MLAs of the Delhi Legislative Assembly for being appointed as parliamentary secretaries. There have been reports of parliamentary secretaries being appointed in 20 states in the past with court judgments striking down these appointments in several cases.

What is the constitutional provision regarding the Office of Profit? • Article 102(1), among other provisions, provides for the disqualification of 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), among other provisions, provides for the disqualification of a member of the Legislative Assembly or Legislative Council of 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. • The articles clarify that “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”. • Parliament has enacted the Parliament (Prevention of Disqualification) Act, 1959, to exempt officers from disqualification. Several states also have enacted similar laws. • There is no bar on how many offices can be exempted from the purview of the law. • The President, in consultation with the Election Commission, disqualifies a member who is holding an office of profit.

What is the basis of the disqualification provision? • Members of Parliament and State Legislatures have a responsibility to hold the government accountable for its actions. 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 law intends to eliminate any conflict of interest – hence enforces the principle of separation of powers between the legislature and the executive.

What is ‘Office of Profit’? • ‘Office of Profit’ is not defined in the constitution or any other statute. Its current definition is derived from 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. • In 1964, the Supreme Court laid down the test of appointment (Gurugobinda Basu vs Sankari Prasad Ghosal case) to determine an office of profit; it considers the following: o whether the government is the appointing authority, o whether the government has the power to terminate the appointment, o whether the government determines the remuneration, o what is the source of remuneration, and o the power that comes with the position.

Issue of appointing parliamentary secretaries

Recent instances www.pragnyaias.com 7288081111

• The Nagaland Chief Minister appointed 26 legislators as parliamentary secretaries in 2017 after all the 60 MLAs of the Nagaland Assembly joined the ruling alliance. • Goa exempted more than 50 offices by means of an ordinance in 2017. Similarly, Puducherry exempted more than 60 offices. • In Delhi, 21 parliamentary secretaries were appointed in addition to the seven ministerial posts to constitute 40% of the 70-member legislature.

Issues • It is against the separation of powers – holding offices makes a legislator dependent on the executive • It is in violation of constitutional provisions – such as a ceiling on the number of ministers • It is misused for political reasons – the coalition politics era has led to appeasing members by giving attractive positions. • Financial burden – they cause losses to public money because of • A larger size of government and arbitrary use of legislative power • The appointment of legislators as parliamentary secretaries, despite the office being exempted from the purview of the office of profit law, has been struck down by courts in several states. This is because the courts found that it was an attempt by state governments to bypass the constitutional ceiling on the number of ministers. IMPORTANT COURT JUDGEMENTS

Jaya Bachchan Case (2006) • The Supreme Court, while upholding the disqualification of Jaya Bachchan from Rajya Sabha, held that office of profit is relevant if the office is capable of yielding profit or pecuniary gain and not whether the person actually obtained a monetary gain. However, it exempt reimbursement of out of pocket or actual expenses from gains. • It also exempts, acquiring a contractor licence from the government to perform functions, which government would have itself discharged.

Calcutta High Court judgment (Vishak Bhattacharya vs The State Of West Bengal) 2015 • The Court held that the position of Parliamentary Secretary may confer the rank of a junior minister on the legislator, and hence was an attempt by state governments to bypass the constitutional ceiling on the number of ministers.

Bombay High Court judgement 2009 • It held that appointing parliamentary secretaries of the rank and status of a Cabinet Minister is in violation of Article 164 (1A) of the Constitution, which specifies that the number of ministers including the Chief Minister should not exceed 15% of the total number of members in the assembly.

Way Forward • The Constitution or Representation of the People Act should be amended to include a holistic definition of Office of Profit. • Some suggestions by various committees should be considered o The Parliament’s Joint Committee on Office of Profit has suggested additional parameters like remuneration, powers, patronage to determine Office of Profit. o The 2nd ARC has recommended that all offices with executive decision-making powers and financial control to be treated as an office of profit. o The National Commission to Review the Working of the Constitution suggested that the Election Commission should be given the mandate to determine the offices of profit. • India can also follow the English practise of determining if an office constitutes an office of profit or not at the time of the creation of an office.

www.pragnyaias.com 7288081111

Office of Profit & RPA Issue Context: • In 2016, the Election Commission of India (ECI) had issued a notice to the 27 MLAs as a consequence to a petition seeking disqualification for allegedly holding office for financial remuneration. • According to the complaint by ECI, the MLAs were illegally holding posts of chairpersons of Rogi Kalyan Samitis (RKSs) of different government hospitals in Delhi • Such pleas are sent to the president who forwards it to the EC. The EC then gives its opinion based on which the president has to issue orders. • President Ramnath Kovind has dismissed a plea to disqualify 27 ruling Aam Admi Party MLAs of Delhi for allegedly holding office of profit About: • The word ‘office’ has not been specifically defined in the Constitution or the Representation of the People Act of 1951. • Articles 102(1)(a) and 191(1)(a) of the Constitution merely states that an MP or MLA is barred from holding an office of profit as it can put them in a position to gain a financial benefit. • However, different courts have interpreted it to mean a position with certain duties that are more or less of public character. • In simple terms, office of Profit is a position in the government which should not and cannot be held by an MLA or an MP. The post can yield salaries, perquisites and other benefits. • Disqualification for holding office of profit reinforces the concept of separation of powers, especially of the executive and legislative. • The rationale behind the law is to secure independence of elected representatives and refrain them from pecuniary or other favours from the executive. BACKGROUND • The origin of the term ‘office of profit’ can be traced to the English Act of Settlement, 1701. Under this law, "no person who has an office or place of profit under the King, or receives a pension from the Crown, shall be capable of serving as a member of the House of Commons." • 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. • The debate over office of profit dates back to 1953 when the EC had to decide whether MLAs of the Vindhya Pradesh Assembly should be disqualified for appointment as members of the district advisory council. • The Supreme Court upheld the disqualification of Jaya Bachchan from Rajya Sabha in 2006 over the issue of holding an office of profit while being a MP. Analysis

www.pragnyaias.com 7288081111

• The issue of office of profit (OoP) props up when governments appoint members of parliament or state legislative assembly to various posts, especially the post of parliamentary secretary. • Such a move is often taken to appease dissident members or accommodate those which couldn’t make it to the council of ministers. • A special case to be taken note of is that of parliamentary secretaries. This position is equivalent to the rank of minister of state which violates the 15% ceiling on number of ministers to be appointed for states and 10% in case of Government of NCT of Delhi. • Various states have created offices to accommodate non ministerial members of legislative assembly, eg, West Bengal, Karnataka, Telangana, Nagaland, Meghalaya, Arunachal Pradesh, Punjab, Mizoram and Manipur. • In some states such offices have been termed unconstitutional by the courts whereas in some states bills have been proposed to make exemptions for these offices. • In two decades an EC decision to disqualify a legislator/s on basis of holding office of profit has been struck down by a court, raising serious doubts about the commission's fairness and credibility. ***WHAT DOES REPRESENTATION OF PEOPLE’S ACT SAY ON OFFICE OF PROFIT? • RPA doesn’t clearly define what constitutes an office of profit. • Under section 9 (A) of the Representation of People's Act, elected representatives, MLAs or MPs being, public servants, cannot hold an office of profit. • Being left undefined, the section has often found itself in a conundrum of political allegations, questioning credibility of Election commission and frequent judicial interventions. How do courts decide on ‘office of profit’? 1. Supreme Court in Jaya Bachchan vs Union of India(2006) define office of profit as any office capable of yielding a profit or pecuniary gain 2. In Swapan Roy vs Pradyut Bordoloi case (2001), SC has laid down certain parameters to check whether an office constitutes office of profit or not: 3. Whether government has appointed? 4. Whether government has power to dismiss or remove? 5. Is government paying the remuneration? 6. Whether government determines or controls functions of such office? 7. Whether functions are performed for the government? WHAT DOES NOT CONSTITUTE AN OFFICE OF PROFIT? • Articles 102 and 191themselves clarify that “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”. • The Parliament (Prevention of Disqualification) Act, 1959, lists the offices whose occupants will not attract disqualification. • Similarly, States have passed their own laws enumerating posts that do not invite disqualification a state of affairs that has contributed to the confusion and sharpened disputes about what exactly an office of profit is.

www.pragnyaias.com 7288081111

• The Administrative reforms commission has suggested that all offices in purely advisory bodies where the experience, insights and expertise of a legislator would be inputs in governmental policy, shall not be treated as OoP, irrespective of the remuneration and perks associated with it. Reducing confusion and bringing clarity on the matter of Office of profit • As office of profit issue brings the question of disqualification of MPs, the Representation of people’s act should be duly amended to determine such cases objectively. It will negate the need of multiple laws to deal with disqualification separately as is being done in many states. • Parliamentary joint committee on office of profit have also suggested office of profit parameters like remuneration, executive, judicial or legislative powers, whether the office wields influence or power by way of patronage etc • The 2nd Administrative Reforms Commission (ARC) has held that all offices involving executive decision making and control of public funds shall be treated as OoP and no legislator shall hold such offices. • The 2nd ARC has also suggested that all offices in purely advisory bodies where the experience, insights and expertise of a legislator would be inputs in governmental policy, shall not be treated as OoP, irrespective of the remuneration and perks associated with it • The National Commission to Review the Working of the Constitution recommended that the Constitution should be suitably amended to empower the Election Commission to identify which offices should be deemed to be offices of profit and which not. • In England, at the time of creation of an office, it is determined and mentioned whether it constitutes an office of profit. India can take cue from such a practice where the complexities of disqualification and judicial intervention can be reduced. Lawmakers should amicably make discussions to specify the criteria for office of profit. It should involve consultative process with feedback from the Election commission of India, judiciary and political experts. It is essential to revisit the laws on disqualification and Office of profit in order to avoid conflict of interests, for MPs and MLA’s to discharge duties honestly, ensure separation of powers and strengthen the democracy overall.

www.pragnyaias.com 7288081111

Practice Question President recently rejected Election Commission’s petition to disqualify Delhi MLAs in office of profit case. What is office of profit and how is it determined? Examine on how frequent cases of office of profit can be objectively determined. CURRENT AFFAIRS: News : The Election Commission has recommended that 20 MLAs of the Aam Aadmi Party in Delhi be disqualified as they held offices of profit . What is an ‘office of profit’? • The expression "office of profit" has not been defined in the Constitution or in the Representation of the People Act, 1951, It loosely relates to MLA or an MP holding government office and receiving benefits from it.

www.pragnyaias.com 7288081111

• 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. Provisions for disqualifications? Article 102(a) and Article 191(1)(a) of constitution for MP/MLA :They can be disqualified for: a. Holding an office of profit under government of India or state government b. Being of unsound mind c. Being an un-discharged insolvent d. Not being an Indian citizen or for acquiring citizenship of another country. What is the object of these provisions? 1. To secure independence of the MPs and to ensure that Parliament/Legislature does not contain persons who have received favours or benefits from the executive and who consequently might be amenable to its influence. 2. This is therefore to eliminate or reduce the risk of conflict between duty and self-interest among MPs. 3. Designed to protect the democratic fabric of the country from being corrupted by executive patronage. Is ECI’s stand justifiable in this case? 1. As per 91st constitutional amendment of 2003 (Article 164 (1A) ), any state or central govt can not appoint minister more than 15% of the strength of house.(for UT like Delhi and puducherry this limit is 10%) . So to curb this limit and for political reasons these appointments are made Ex: Parliamentary secretaries. 2. PILs filed in various High Courts on the matter have argued that the appointment of Parliament Secretaries is ultra vires the 91st Amendment of the Indian Constitution. EX : In 2005, in Citizen Rights Protection Forum vs Union of India and Others, Himachal Pradesh High Court quashed the appointment of Chief Parliamentary Secretaries and Parliament Secretaries. 3. DELHI MLA (REMOVAL OF DISQUALIFICATION) ACT 1997 does not mention parliamentary secretary in the list. Additional Points: 1. A Parliamentary Secretary is appointed by the Prime Minister to assist a cabinet Minister, or, in some cases, to assist several cabinet Ministers or the Prime Minister 2. It was only with retrospective effect that it passed a bill to exempt the post of parliamentary secretary from 'office of profit' tag in case of Delhi. It was denied assent by the president

How to determine if an office falls under office of profit ambit? 1. Guru Gobind Basu vs Sankari Prasad Ghosal & others (AIR 1964 SC 254): Supreme Court ruled that decisive test for determining whether a person holds any office of profit under the Government is the test of appointment. The first and foremost question to be asked is: does the Government have the power to appoint to and remove from an office? If the answer is in the negative, no further enquiry is called for. If the answer be positive, further probe has to go on. The totality of the facts and circumstances reviewed in the light of the provisions of the relevant Act, if any, would lead to an inference www.pragnyaias.com 7288081111

being drawn if the office held is under the Government. On account of holding of such office, would the Government be in a position to so influence him or her as to interfere with independence in functioning or would the holding of the two offices one under the Government and the other of MP involve a conflict of interests inter se? This is how the issue has to be approached and resolved. 2. Jaya bachhan vs union of india – what is material is not whether the person actually received any remuneration or pecuniary gains, but whether the office he or she holds is itself of profit. Mechanism for determination of Office of Profit at Parliamentary level: 1. Joint Committee on office of profit has been constituted consisting of 10 members from the Lok Sabha and five members from the Rajya Sabha. The function of the Committee, inter alia, is to undertake a continuous scrutiny of the composition and character of various government appointed bodies and report to both houses as to the membership of which of these ought to disqualify a person for membership of Parliament.

• The Committee generally applies two tests in deciding whether a member of a body ought to be exempted from disqualification: (1) the emoluments and allowances attached to the members; and (2) the nature and function of the body. • If a member of a body gets only compensatory allowance and the body exercises merely an advisory function, then no disqualification would arise. But if the allowances given are more than compensatory allowance and/or the body exercises executive and financial powers and is in a position to wield influence and patronage, then its membership would not be excluded from disqualification Way Forward : 1. Unlike in India, in England whenever a new office is created, the law also lays down whether it would be an office of profit or not, A similar procedure can be followed in India as well. 2. State legislatures and Parliament must respect the constitutional restrictions and must not uncheck the checks and balances which are enjoined by the constitution for effective functioning of the Indian polity MCQ’s 1. On which of the following grounds can a member of parliament be disqualified or removed from the office as per constitution? 1. If he is of unsound mind 2. If he is un-discharged insolvent 3. If he is convicted of a bribery case 4. For occupying office of profit Which of the above are correct? 1. A and B only 2. A,B,C only 3. A,B,D only 4. All of the above Correct Answer : 3 2. Which of the following statements regarding 91st constitutional amendment is/are correct? www.pragnyaias.com 7288081111

1. It restricted the number of ministers to parliament and all state legislatures to 15% of strength of house. 2. It strengthened the anti defection law by changing the criteria for qualification as defection. Which of the statement(s) are correct? 1. 1 only 2. 2 only 3. 1 and 2 both 4. None of the above Correct Answer : 2 (2 only ) To strengthen the Anti-defection law, Limit was increased from 1/3 to 2/3 members of the party in the 91st Amendment, thus making it more difficult for individuals and factions within the party to defect. 3. Consider the following statements regarding office of profit 1. Parliament can enact a law stating which office does not qualify as office of profit as per constitution. 2. Committee on office of profit is a joint committee of Lok Sabha and Rajya Sabha Which of the above statement(s) is/are correct? 1. 1 only 2. 2 only 3. 1 and 2 4. None of the above Correct Answer : 3 MAINS Questions : 1. What do you understand by office of profit. What is the objective of keeping office of profit as a criteria for disqualification of MP/MLA’s. Is it fulfilled in the current political context? Examine. (15) 2. The vagueness of the term office of profit has been a bone of contention to many states/UT’s in the recent times. Is there any objective criteria in place to determine office of profit?. Delineate the way out keeping in mind the principle underlying this provision MAINS OVERVIEW Office of Profit • Punjab cabinet has decided to bring an ordinance to exclude the appointments of advisors to CM from the ambit of the office of profit. • The ordinance will amend the Punjab State Legislature (Prevention of Disqualification) Act, 1952, to add these posts to the list of posts that are not considered office of profit for the purpose of disqualification of MLAs. OFFICE OF PROFIT: • 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.

www.pragnyaias.com 7288081111

Historical Background: • The origin of office of profit can be found in the English Act of Settlement, 1701. • Under this law, "no person who has an office or place of profit under the King, or receives a pension from the Crown, shall be capable of serving as a member of the House of Commons." • This was instituted so that there wouldn't be any undue influence from the royal household in administrative affairs. Why should an MLA or an MP not hold an office of profit? • According to Articles 102(1)(a) and 191(1)(a) of the Constitution, an MP or MLA is barred from holding an office of profit as it can put them in a position to gain a financial benefit. • A person shall be disqualified for being chosen as, and for being, a member of either House of Parliament, (a) 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," says the law. • Under the Representation of People Act too, holding an office of profit is grounds for disqualification.

www.pragnyaias.com 7288081111