Office-of-Profit

In News

• Election Commission sent notice to Jharkhand C.M for allotment of mining lease to himself over Office-of-Profit charge.

What is the issue?

• The Election Commission has sought an explanation on the ‘office of profit’ charge from the Jharkhand C.M.
• The Commission said that the holding of office of profit by the Chief Minister would violate Section 9A of the Representation of People’s Act, 1951.
  • Section 9A of the act deals with the disqualification of the elected representatives for Government contracts.
• The opposition earlier made a representation to the governor, who forwarded it to the EC under Article 192 of the Constitution.
  • Under Article 192, the governor can decide on disqualifying an elected member of the state Assembly on the EC’s opinion.

What is the Concept of ‘Office of Profit’?

• Definition: The office of profit has been interpreted as a position that brings to the office-holder some financial gain, remuneration or benefit. The amount of such profit is immaterial.
• Independence: The concept forbids members of the legislature from accepting an office of profit under the executive so as to maintain the autonomy of the legislature and preserve the separation of powers.
• Objective: The intent is to avoid the conflict of interests between the duties and interests of an elected member.

What constitutes an ‘Office of Profit’?

• The constitution does not explicitly define the phrase.
• However, it has evolved over decades with subsequent judicial pronouncements.
• Supreme Court has listed certain factors while considering ‘office of profit’:
  • 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
  • the power that comes with the position.

 Constitutional provisions regarding ‘Office of Profit’

• Constitutional provisions are as follows:
  • Article 102 (1): A person shall be disqualified for being chosen as 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): 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.
• Provisions of Articles 102(1)(e) and 191(1)(e) also protect a legislator occupying a government position if the office in question has been made immune to disqualification by law.

Statutory provisions related to ‘Office of Profit’

• Union law: Parliament has also enacted the Parliament (Prevention of Disqualification) Act, 1959, which has been amended several times to expand the exempted list.
• RPA Act, 1951: Clause 9A of the Act says that a person shall be disqualified if there is a contract involving him in the course of his trade or business with the appropriate Government for the supply of goods to or for the execution of any works undertaken by that Government.  
• State laws: Certain state legislatures have enacted laws in their respective states exempting certain offices from the purview of office of profit. 

Source: TH