Office of profit: What & the why

One of the earliest cases was in 1953. The EC had to decide whether MLAs of the Vindhya Pradesh Assembly should be disqualified for appointment as members of the district advisory council

Written by Ritika Chopra | New Delhi | Updated: January 20, 2018 10:43:38 am
CEC Achal Kumar Joti (File Photo)

What are the basic criteria to disqualify an MP or MLA?

Basic disqualification criteria for an MP are laid down in Article 102 of the Constitution, and for an MLA in Article 191. 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 undischarged insolvent; d) Not being an Indian citizen or for acquiring citizenship of another country

What is ‘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. However, 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.

How do courts or EC decide whether an MP or MLA has profited from an office?

The Supreme Court, while upholding the disqualification of Jaya Bachchan from Rajya Sabha in 2006, had said, “For deciding the question as to whether one is holding an office of profit or not, what is relevant is whether the office is capable of yielding a profit or pecuniary gain and not whether the person actually obtained a monetary gain… If the office carries with it, or entitles the holder to, any pecuniary gain other than reimbursement of out of pocket/actual expenses, then the office will be an office of profit for the purpose of Article 102 (1)(a)…” 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 do not amount to holding office of profit.

What is the underlying principle for including ‘office of profit’ as criterion for disqualification?

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.

What was the first office of profit case referred to the EC?

One of the earliest cases was in 1953. The EC had to decide whether MLAs of the Vindhya Pradesh Assembly should be disqualified for appointment as members of the district advisory council. As members, they were paid an allowance of Rs 5 for each day they stayed at the place where the meeting of the advisory council was held.

The EC was of the opinion that reimbursement of mere out-of-pocket expenses should not be held as profit. So, only members living in the district headquarters (where the meetings were being held) and still receiving allowance were deemed to hold office of profit, and 12 of 60 were disqualified.

What are the recent instances of disqualification of legislators for holding office of profit?

In March 2006, President APJ Abdul Kalam disqualified Jaya Bachchan of the SP from Rajya Sabha with retrospective effect from July 14, 2004, for holding an office of profit as chairperson of the UP Film Development Council. In January 2015, UP MLAs Bajrang Bahadur Singh (BJP) and Uma Shankar Singh (BSP) were disqualified from the assembly after they were indicted by the Lokayukta for bagging government construction contracts by misusing their position.

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