Office of Profit -- Cyber Legal Aid

[ Show ]

Support VoyForums

[ Shrink ]

VoyForums Announcement: Programming and providing support for this service has been a labor of love since 1997. We are one of the few services online who values our users' privacy, and have never sold your information. We have even fought hard to defend your privacy in legal cases; however, we've done it with almost no financial support -- paying out of pocket to continue providing the service. Due to the issues imposed on us by advertisers, we also stopped hosting most ads on the forums many years ago. We hope you appreciate our efforts.

Show your support by donating any amount. (Note: We are still technically a for-profit company, so your contribution is not tax-deductible.) PayPal Acct: Feedback:

Donate to VoyForums (PayPal):

[ Login ] [ Contact Forum Admin ] [ Main index ] [ Post a new message ] [ Search | Check update time ]

[ Next Thread | Previous Thread | Next Message | Previous Message ]

Date Posted: 02:04:15 07/13/06 Thu
Author: Arindam Mukherjee
Subject: Office of Profit

It started with Jaya Bachchan being disqualified from the Rajya Sabha,
snowballed into a political catfight, and was brought into a dramatic
finale by the sudden resignation of Sonia Gandhi from the Lok Sabha.
The issue : disqualification from Parliament for violating the clause on
holding an office of profit. At least 100 other Legislators, including
the Lok Sabha Speaker face the risk of being kicked over the same issue.
What is it all about ?

The expression office of profit occurs in Arts 18(3), 18(4), 58(2),
59(2), 66(4), 102(1)(a), 158(2) and 191(1)(a) of our Constitution. We
restrict ourselves to Art 102, which is the root of the current
imbroglio. Art 102 (1)(a), dealing with Disqualification for membership
of Parliament, states : A person shall be disqualified for being chosen
as, and for being, a member of either House of Parliament if he holds
any office of profit under the Govt of India or the Govt of any State,
other than an office declared by Parliament by law not to disqualify its
holder. Accordingly, under the Parliament (Prevention of
Disqualification) Act, 1959, even though an office may be an office of
profit, its holder is not disqualified if Parliament so declares.
Unfortunately for Jaya Bachchan, the post held by her as Chairperson, UP
Film Dev Corpn is not one of them.

Moreover, specific provision by way of a declaratory clause is also made
in particular enactments to the effect that offices created thereunder
are not deemed to be an 'office of profit', for the purpose of
disqualification. Among other Acts, the Coffee Act, 1942, Rubber Act,
1947, Tea Act, 1953, Tobacco Board Act, 1975, Spices Board Act, 1986,
Wakf Act, 1995 declare that a member of the Board constituted under
their respective enactments shall not be disqualified from being chosen
as, or for being a MP.

The phrase office of profit is not defined under any Indian statute.
However, the reason behind this prohibition is that MPs should be free
to function independently of the Executive. By accepting an office of
profit, theoretically they become subject to pressure by the Executive.
Constitutional expert Durga Das Basu feels the governing principle is, .
that there should be no conflict between the duties of a member of the
Legislature as such and his private interests, and that the indebtedness
of a member to Govt is incompatible with his independence as a
representative of the people. Put simply, the philosophy is an extension
of the doctrine of Separation of Powers.

In the Sibu Soren case, the Supreme Court in July 2001, explained the
rationale of the bar. It said the purpose was : .to reduce the risk of
conflict between duty and interest amongst Members of the Legislature so
as to ensure that the concerned legislator does not come under an
obligation of the Executive, on account of receiving pecuniary gain or
profit from it, which may render him amenable to influence of the
Executive, while discharging his obligations as a legislator."

Significantly, the Supreme Court interpreted the expression office of
profit as an office which ". must be held under Govt to which any pay,
salary, emoluments or allowance is attached. The word profit connotes
the idea of pecuniary gain. If there is really a gain, its quantum or
amount would not be material; but the amount of money receivable by a
person in connection with the office he holds may be material in
deciding whether the office really carries any profit.

Adding that if the Govt had the power to appoint and remove a person,
then the office is an office of profit within the meaning of Article
102, even though the person is paid out of the funds of the Corporation.
On the other hand, if the Govt does not possess this power, whatever
control the Govt may have over the person in other matters, would not
suffice for the purpose.

I have garnered information from the Rajya Sabha records. According to
them, a Joint Committee of Houses of Parliament on Offices of Profit
inter alia, examines all matters relating to 'office of profit'. It
generally follows four criterion for determining whether an office is an
office of profit : (i) if Govt exercises control over the appointment
and removal from the office and over the performance and functions of
the office; or, (ii) if the holder draws any remuneration other than
'compensatory allowance' as defined in Sec 2(a) of the Parliament
(Prevention of Disqualification) Act, 1959; or, (iii) if the body in
which an office is held, exercises executive, legislative or judicial
powers or confers powers of disbursement of funds, allotment of lands,
issue of licences, etc. or gives powers of appointment, grant of
scholarships, etc.; or, (iv) if the body in which an office is held
enables the holder to wield influence or power by way of patronage, then
it is an office of profit. Therefore, an affirmative answer to even 1 of
the 4 criteria means that the MP may be disqualified under provisions of
Art 102(1)(a) of the Constitution.

From the above, what clearly emerges is that every office or activity
that brings in money is not an office of profit. MPs are free to pursue
their own avocations as lawyers, doctors, architects or entrepreneurs
and the like. A political party or a group of them may select one of the
MPs as a chairperson with remuneration but that is not an office of
profit under the Govt, because the executive government has no control
over that chairperson. Neither is the Rajiv Gandhi Trust or a similar
body, government. So, Sonia Gandhi on this count may not be disqualified
the outcry is just political grandstanding.

There is an urgent need to maintain Legislature sanctity by defining its
separation of powers with the Executive. Parliamentarians, set aside
petty, divisive politics and, grab the moral high ground by upholding
the legislative spirit of the Indian Constitution. Alternately, a dose
of Judicial Activism is imminent. As law students, we wait and watch.

[ Next Thread | Previous Thread | Next Message | Previous Message ]