Understanding the concept of ‘Office of Profit’

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The preparation of judicial services examinations cannot happen in silos, current affairs is very essential part of every examination, therefore it becomes essential for us to be prepared with day to day happenings around us especially that have a constitutional bearing. The latest controversy surrounding the office of profit and disqualification of 20 Delhi Legislators presents us an opportunity to understand office of profit and the larger concept of Separation of power. The piece would focus on concept of Office of profit, Separation of power will dealt with in detail in future articles.

The term office of profit has not been defined in the Constitution of India or Representation of Peoples Act, 1951 though the term is mentioned in Article 102 of the Constitution. The relevant portion of the same is reproduced below for ease of your reference:

  1. Disqualification of membership

…A person shall be disqualified for being chosen as, and for being a member of either House of Parliament-

  1. a) if he holds any office of profit under the Government of India or Government of any state, other than an office declared by Parliament by law not to disqualify its holder.… (Emphasis supplied)

To understand any provision of law one must have a clear understanding as to the purpose of the legislation. The object of this provision is to secure independence of the legislators. This provision ensures that the members of parliament are in no way influenced by the executive or the government of the day. It is nothing but a manifestation of concept of separation of power. Separation of power envisages that all the branches of government are functionally independent from each other. Further not only there should be functional independence there should also be independence of the personnel which means that there must be compartmentalization of powers and work between executive, legislature and judiciary not only this, the officials involved should not overlap. This aspect of independence of personnel is protected by provision against holding of office of profit by legislators under state or union government.

It is the duty of a legislator to be critical of government’s work. The country is built upon a sound system of checks and balances, where the legislature keeps an eye on executive’s work, this is manifest in the various procedures and motions in the parliament like adjournment motion, question hour where the legislator hold the executive accountable for their work. Thus when a legislator takes up office of profit under a government she thereby compromises her position as she cannot be seen to be unbiased anymore (Though such a situation is very hard to imagine in highly polarized polity we presently have, yet the legislators are expected to rise above the party or governments line and act in national interest, there comes another interesting concept of party whip but let’s keep that discussion for another day).

Now let’s understand the concept of office of profit with help of the decided cases of the Hon’ble Supreme Court. The first word used in the article 102 is Office, so let’s under what office stands for in the article. The word office in itself shows some sort of permanency in nature, something that has a tenure, duration or duty. Prima facie it is not necessary that it should carry any emoluments. The Supreme Court in Kanta Kathuria v. Manak Chand Surana[1] has held that the words used its holder in the article indicate that there must be an office which exists independently of the holder of the office. Therefore one of the essential criteria is permanence of office independent of the occupier of the office.

The word office is followed by the words Of Profit, which means something generating profit or some office from which a man is reasonably expected to make profit. It must be kept in mind at all times that actual making of profit is not necessary, the fact that a post is capable of yielding profit is enough. The Apex Court has in Ravanna Suanna v. G. S. Kaggeerappa[2] has held that if there is really gain, the quantum or amount of such gain is immaterial. The question then arises that if the holder of such office refuses to take benefit of the position would such office still be qualified as office of profit? The answer to the question has been given in the affirmative by the Supreme Court. The Supreme Court in dealt with this in Jaya bachachan v. Union of India[3] and held that, If the ‘pecuniary gain’ is ‘receivable’ in connection with the office then it becomes an office of profit, irrespective of whether such pecuniary gain is actually received or not. The court further held that where the office carries with it certain emoluments then it will be an office of profit even if the holder of the office chooses not receive or draw such emoluments.

Further the office of profit must be held under the Government of India or the government of any state. The Supreme Court has provided for various tests that determine whether the office was held under the government[4] the test are as follows:

  • Whether government makes appointment to the office;
  • whether government has right to remove or dismiss the holder of the office;
  • whether the government pays the remuneration
  • whether the functions which the holder of the office performs are for the government; and
  • does the government exercise any role in performance of these functions.

It is not necessary that these conditions should co-exist it would suffice if any of the above mentioned conditions is fulfilled by person holding office of profit. In Pashupati Nath Sukul v. Nem Chandra Jain[5]  it has been held that the word ‘Government’ should be construed liberally. The office of profit should be such that has an active patronage from the government of the day, which puts a shadow over the independence of the legislator.

Few exceptions to the article have also been in carved out for example any office held by a minister of the union, leader of the opposition. It must be kept in mind that such an exception must be created by a law of parliament and not otherwise as an order or rule or an executive fiat.

Now that we have some idea about the office of profit, let’s storm our brains and try to decide upon controversy of office of profit in news. The facts of the case are as follows Delhi Government had appointed 21 Parliamentary Secretaries on March, 2015, which was followed by a Complaint against such appointment. In a bid to defend their appointment Delhi Government passed amendment to Delhi Members of Legislative Assembly (Removal of Disqualification) Act, 1997 after the Complaint which was rejected by the President. It appears that this action by the Government is post facto of Complaint, it is an attempt to bring the appointments under the exceptions, but at the time when the complaint was made the MLAs were holding office of profit. Even though the arguments made by MLAs include that the office, did not entail profit, it appears to be a weak argument as earning of profit is not a mandatory condition for disqualification as long as there is opportunity of earning of profit.

 

[1] (1969) 3 SCC 268

[2] AIR 1954 SC 653

[3] (2006) 5 SCC 266

[4] (1971) SCC 870

[5] (1984) 2 SCC 404

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