Office of profit

1. Office of Profit

2. Origin
 The English ACT OF SETTLEMENT 1701 -early
example of this principle.
 The Act of Settlement provided that-
 no person who has an office or place of profit under
the King, or receives a pension from the Crown,
shall be capable of serving as a member of the
House of Commons;

3. Principle in US
 The U.S. Constitution prohibits a Member of
Congress from being appointed to an executive office
 if the executive office was created during that Member's term
in Congress, or
 if the compensation for that executive office was increased
during that Member's term in Congress.
 The U.S. Constitution also prohibits an executive
officer from being a Member of Congress.

4. Principle
 The object of the provision is to secure
independence of the elected representatives and
to ensure that Parliament/Legislature does not
contain persons
 who get favours or benefits from the executive and
 who consequently might be amenable to its
influence.
 Principle is to eliminate or reduce the risk of conflict
between duty and self-interest.
 Insulate from executive patronage

5. Office of Profit?
 The expression "office of profit" has not been defined in the
Constitution or in the Representation of the People Act, 1951.
 It is for the courts to explain the significance and meaning of this
concept. Over the years, courts have decided this issue in the
context of specific factual situations.
 Office that would give its occupant the opportunity to
 gain a financial advantage or
 benefit.
 The actual amount of profit gained during the violation has no
bearing on its classification.
 Parliament (Prevention of Disqualification) Act, 1950, 1951, and 1953
exempted certain posts from being recorded as offices of profit- -
replaced by the Parliament (Prevention of Disqualification) Act,
1959.

6. What does Indian
Constitution say
on Office of Profit

7. Article 18
 Article 18(3) No person who is not a citizen of India
shall, while he holds any office of profit or trust under the
State, accept without the consent of the President
any title from any foreign State.
 18 (4) No person holding any office of profit or trust under
the State shall, without the consent of the President,
accept any present, emolument, or office of any kind
from or under any foreign State.

8. Qualifications for election as
President and conditions of Office
 58 (2) A person shall not be eligible for election as President if he
 holds any office of profit under the
 Government of India or
 the Government of any State or
 under any local or
 other authority subject to the control of any of the said Governments.
 59 (2) ( conditions )-The President shall not hold any other office of
profit.
 64 The Vice-President shall be ex officio Chairman of the Council of
the States and shall not hold any other office of profit
 Explanation( Article 58).—For the purposes of this article, a person shall not be
deemed to hold any office of profit by reason only that he is
 the President or
 Vice-President of the Union or
 the Governor of any State or
 is a Minister either for the Union or for any State.

9. Qualifications for election as Vice
President and conditions of Office
 Article 64 -The Vice-President shall be ex officio Chairman of
the Council of the States and shall not hold any other office of
profit
 66(4) A person shall not be eligible for election as Vice-President
if he holds any office of profit under
 the Government of India or
 the Government of any State or
 under any local or
 other authority subject to the control of any of the said
Governments.
 Explanation.— For the purposes of this article, a person shall not
be deemed to hold any office of profit by reason only that he is
 the President or
 Vice-President of the Union or
 the Governor of any State or
 is a Minister either for the Union or for any State.

10. Disqualifications for membership
of Parliament
 102 (1) A person shall be disqualified for being chosen
as, and for being, a member of either House of
Parliament—
 (a) if he holds any office of profit under
 the Government of India or
 the Government of any State,
 other than an office declared by Parliament by law not to
disqualify its holder;
• Explanation.—For the purposes of this clause a person
shall not be deemed to hold an office of profit under
 the Government of India or
 the Government of any State
By reason only that he is a Minister
either for the Union or for such
State.

11. Disqualifications for membership of
State Legislative Assembly or
Legislative Council
 191 (1) A person shall be disqualified for being
chosen as, and for being, a member of the
Legislative Assembly or Legislative Council of a
State—
 (a) if he holds any office of profit under
 the Government of India or the Government of any State
specified in the First Schedule,
 other than an office declared by the Legislature of the
State by law not to disqualify its holder;
• Explanation.—For the purposes of this clause, a person
shall not be deemed to hold an office of profit under the
Government of India or the Government of any State
specified in the First Schedule by reason only that he is
a Minister either for the Union or for such State.

12. Difference between President and
MP as regards office of Profit
President Member of Parliament
if he holds any office of profit under
the Government of India or
the Government of any State or
under any local or
other authority subject to the
control of any of the said
Governments.
if he holds any office of profit
under
the Government of India or
the Government of any
State,
other than an office
declared by Parliament by
law not to disqualify its
holder;

13. How disqualification( of MP/MLA)
comes into effect
 Disqualifications
mentioned
 in clause (1) of article 102
 In clause (1) of article 191
Referred
to
President/
Governor
Obtain
opinion of
Election
Commission
Question
raised
Shall act according to such
opinion

14. Conditions of Governor's office
 158 (2) The Governor shall not hold any other
office of profit.
 NO explanation is given here……..

15. Law in India
 Elected representatives, MLAs or MPs, cannot
hold an office of profit under section 9 (A) of the
Representation of People's Act

16. Parliament (Prevention of
Disqualification) Act, 1959- For being
MP)

17. Parliament (Prevention of Disqualification)
Act, 1959- For being MP

18. State Legislature Member ( MLA)

20. THE DELHI MEMBERS OF
LEGISLATIVE ASSEMBLY
(REMOVAL OF
DISQUALIFICATION BILL, 1997
 3. A person shall not be disqualified for
being chosen Disqualifications as, or
for being a member of the Legislative
 Assembly of the National Capital Territory
of Delhi merely by reason of the fact that he
holds any of the offices prescribed in the
Schedule appointed to this Act.
Amended in 2015

21. Instances
 In 2006, MP, Ms Sonia Gandhi resigned several
posts -that the posts were 'offices of profit' and thus
unlawful.
 Ms Jaya Bachchan was disqualified from the Rajya
Sabha -she was also chairperson of UP Film Dev
Federation.
 Two UP Assembly members, Bajrang Bahadur Singh
and Uma Shankar Singh, were disqualified in January
2015 due to holding government contracts.
 January 19, 2018: Election Commission
recommended disqualification of 20 AAP legislators in
the ‘Office of Profit’ case

22. Jaya Bachchan case
Election Commission of
India -opined that any
post, even if held in an
advisory capacity, was
an office of profit.

23. UP MLA case
 In the Lokayukta's probe –
 both MLAs were found prima facie guilty of
misusing their position to grab government
contracts worth hundreds of crores of rupees.
 Both were heading a sole proprietorship firm that
was awarded numerous work contracts by the
PWD.

24. Tests applied for
declaring office of
profit

25. Test of appointment- What Supreme
Court has said
 A Constitution Bench of the Supreme Court in Guru
Gobind Basu vs Sankari Prasad Ghosal & others (AIR
1964 SC 254) ruled that
 The Supreme Court has further held that it is not
necessary that all these factors must co-exist.
the authority vested with the power
to terminate the appointment;
the authority that determines the
remuneration;
the source from which the
remuneration is paid;
the authority vested with the power
to control the manner in which the
duties of the office are discharged
and to give protection on that behalf.
appointing authority

26. Ramkrishna Hegde vs the State of
Karnataka (AIR 1993)
 He was elected as Member of Karnataka Legislative
Assembly.
 He was appointed on the post of Deputy Chairman of
Planning Commission in the rank of Cabinet Minister.
 It was specifically mentioned in the order of
appointment that he would not draw any salary, he would
be entitled only to the travelling allowance/daily
allowance, conveyance allowance or chauffer-driven car
and house rent allowance or rent free furnished
accommodation including free supply of electricity and
water.
 In that circumstances the Court held whether a
person holds an office of profit should be interpreted
reasonably taking into consideration the class of
person at the relevant time .
 In the instant case no evidence was placed to show that
the office of Deputy Chairman of Planning Commission

27. MP/MLA do they hold office
 As per Sub-section (viii) of Clause (C) of Section
2 of the new PC Act of 1988
 held in the case of P. V. Narsimha Rao ,
 the office of Member of Parliament is an office,
 Therefore, it can be held that the office of MLA is
an office of profit
 BUT certainly it can not be held that it is
an office under Government
 because it does not satisfy the other tests as laid down by
the Supreme Court in various cases, such as removal
from office, performance of functions for the Government
and Government control over the performance of functions.

28. Other cases which came in
controversy in the past
 Lok Sabha Speaker Somnath Chatterjee (Chairman
of Sriniketan-Santinikatan Development Authority)
 Former Union Minister T Subbirami Reddy (Chairman,
Tirumala Tirupati Devasthanams),
 Karan Singh (ICCR), nominated Rajya Sabha
member
 Kapila Vatsyayan and V K Malhotra (former president
of the All India Council of Sports).

29. Joint Committee on office of profit
 10 members from the Lok Sabha and 5 members from
the Rajya Sabha.
 The function of the Committee
 continuous scrutiny of the composition and character of
various government appointed bodies
 membership of which of these ought to disqualify a person
for membership of Parliament.
 The Committee generally applies two tests
 the emoluments and allowances attached to the members;
 the nature and function of the body.

30. Can MP be Dy Chairman of some
Commission
 When Pranab Mukherjee became Deputy Chairperson of the
Planning Commission under Prime Minister P.V. Narasimha Rao,
the office was exempted by adding it to the list in the Parliament
(Prevention of Disqualification) Act, 1959.

31. Some relevant cases
 In the case of Hoti Lal v. Raj Bahadur (AIR 1959
Rajasthan 227), the Division Bench of the
Rajasthan High Court has held that the office of
the Oath Commissioner in Rajasthan is
an office of profit -
 as the Oath Commissioners are appointed by the
Government and the office brings a profit to the
holder thereof, therefore, it must be held to be
an office of profit.

32. How to decide which office is Office
of profit
 Does the Government have the power to appoint
to and remove from an office?
 If the answer is in the negative, no further enquiry
is called for.
 If the answer be positive, further probe has to go
on.
 Whether on account of holding of such office, would the
Government be in a position to so influence him or her as to
interfere with independence in functioning as MLA/MP

33. Delhi AP MLAs case- questions
being raised
 The Delhi High Court had declared the
appointment of 21 AAP MLAs as Parliamentary
secretaries void ab initio
 If the appointments were void ab initio, how can the
EC consider positions that did not exist to begin
with as offices of profit?
 The appointment letter clearly stated “The
Parliamentary Secretaries will not be eligible for
any remuneration or any perks of any kind, from
the government.”

34. Good practices and way ahead
 In England whenever a new office is created, the
law also lays down whether it would be an office
of profit or not.
 Follow the UK practice or
 Have an elaborate law on office of profit laying
down broad principles for declaring an office as
office of profit.
 Setting up mechanism of annual review of office of
profits under Union and State.

35.  Thanks