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Journalism of Courage
Jharkhand Chief Minister Hemant Soren won a trust vote in the special session of the Assembly he called on Monday. The vote came against the backdrop of his potential disqualification as an MLA on the grounds of holding an office of profit, for allotting a mining lease to his own family while he headed the department in the state. Governor Ramesh Bais is yet to make his decision on the Election Commission’s recommendation official.
What is an office of profit? And how are legislators disqualified under the same?
The disqualification criteria for an MP and an MLA are laid down in Articles 102 and 191 of the Constitution, respectively. They can be disqualified for: a) Holding an office of profit under the 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.
While the word ‘office’ has not been defined in the Constitution or the Representation of the People Act of 1951, it is largely understood to mean, based on various court judgments and their interpretations, a position with certain duties that are more or less of public character. But any office would not amount to disqualification.
The question, therefore, is on what grounds will disqualification be carried out. The answer to this can be found in the Supreme Court’s 1964 ruling which spoke of the factors which could determine if a person held an office for profit. They include: Whether the government is the appointing authority; Whether the government has the power to terminate the appointment; Whether the government determines the remuneration; what the source of remuneration is and the power that comes with the position.
In another judgment that upheld the disqualification of Jaya Bachchan from the Rajya Sabha in 2006, the apex court 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)…”
It is largely understood to mean that there needs to be a separation of powers between the Legislature and the Executive and that legislators should discharge their duties freely without any conflict of interest.
Among the earliest cases of disqualification was in 1953. The EC at the time had to decide whether MLAs of the Vindhya Pradesh Assembly should be disqualified for appointment as members of the district advisory council. 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 just out-of-pocket expenses should not be held as profit, but that members living in the district headquarters (where the meetings were being held) and still receiving allowance should be deemed to hold office of profit. 12 out of 60 members went on to be disqualified.
In March 2006, then President A P J Abdul Kalam disqualified Jaya Bachchan of the Samajwadi Party from the Rajya Sabha for holding an office of profit as chairperson of the UP Film Development Council. She was shown to have drawn a monthly honorarium of Rs 5,000, entertainment expenditure of Rs 10,000, in addition to other benefits and allowances.
In 2008, Congress leader Sonia Gandhi’s position as the head of the National Advisory Council of the UPA government was challenged for holding an office of profit. She quit her parliamentary seat of Rae Bareli seat and her post at NAC after the controversy as the EC was filing a petition against her. She went on to win the seat in 2009.
In January 2015, UP MLAs Bajrang Bahadur Singh of the BJP and Uma Shankar Singh of the BSP were disqualified from the Assembly on the basis of Lokayukta N K Mehrotra’s judgment that the two were working as contractors even after being elected to the Assembly.
In January 2018, the President disqualified 20 AAP MLAs who were appointed as parliamentary secretaries to various ministries in the Delhi government on the basis of an EC recommendation. The Delhi High Court, on a petition filed by the disqualified MLAs, quashed the President’s notification and referred the matter back to the EC, saying that the EC’s recommendation in the case was “bad in law”, “vitiated” and failed to “comply with the principles of natural justice”.
