What do you understand by the term “Office of Profit” and how could it be decided? Also discuss the rationale behind that principle.
Refer – The Indian Express
Enrich the answer from other sources, if the question demands.
IAS Parliament 6 years
KEY POINTS
· Basic disqualification criteria for an MP are laid down in Article 102 of the Constitution, and for an MLA in Article 191.
· Under this, one of the criteria for disqualification is holding an office of profit under government of India or state government.
What is an ‘office of profit’?
· The word ‘office’ has not been defined in the Constitution or the Representation of the People Act of 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.
How could it be decided?
· A legislator cannot be disqualified from either the Parliament or state Assembly for holding any office.
· It can be done for holding –
a) An office
b) An office of profit
c) An office under the union or state government
d) An office exempt by law from purview of disqualificatory provisions.
· All four conditions have to be satisfied before an MP and MLA can be disqualified.
· Going by the Supreme Court decisions, the test to decide whether a post is an office of profit is the role of the government in appointing and paying the person concerned.
· In Jaya Bachchan case, the court said it was an office of profit even if one did not actually receive payment; it was enough if some pay was ‘receivable’.
· In Raman v. P.T.A. Rahim, the court said only posts that are capable of yielding pecuniary gains, as distinguished from compensatory allowances, would be offices of profit.
· However, a person who acquires a contract or licence from a government to perform functions, which the government would have itself discharged, will not be held guilty of holding an office of profit.
· So, acquiring a gas agency from the government or holding a permit to ply does not amount to holding office of profit.
Rationale behind the principle
· 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.
