Office-of-Profit

Context

• Jharkhand Governor sought a “second opinion” in the office-of-profit case involving the demand for dismissal of the Chief Minister.

About

• Following a petition by the BJP seeking CM’s disqualification from the Assembly in the office-of-profit case, the Election Commission had sent its decision to the Jharkhand governor, sparking a political crisis in the state.

Office of Profit

• ‘Office of profit’ is not defined in the Constitution. However, based on past judgments, the Election Commission has noted five below tests for what constitutes an office of profit:
  • Whether the government makes the appointment
  • Whether the government has the right to remove or dismiss the holder.
  • Whether the government pays remuneration.
  • What the functions of the holder are.
  • Does the government exercise any control
  • over the performance of these functions.
• MPs and MLAs, as members of the legislature, hold the government accountable for its work. The essence of disqualification under the office of profit law 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 Does the Constitution Say about the Office of Profit?

• 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. 
• The Constitution specifies that the number of ministers including the Chief Minister has to be within 15% of the total number of members of the assembly (10% in the case of Delhi, which is a union territory with legislature).
• Provisions of Articles 102 and 191 also protect a legislator occupying a government position if the office in question has been made immune to disqualification by law. In the recent past, several state legislatures have enacted laws exempting certain offices from the purview of office of profit.  Parliament has also enacted the Parliament (Prevention of Disqualification) Act, 1959, which has been amended several times to expand the exempted list.

• Article 103: Decision on questions as to disqualifications of members
  • If any question arises as to whether a member of either House of Parliament has become subject to any of the disqualifications mentioned in clause (1) of Article 102, the question shall be referred for the decision of the President and his decision shall be final.
  • Before giving any decision on any such question, the President shall obtain the opinion of the Election Commission and shall act according to such opinion.

Source: Print