Office of Profit

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.

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