Office of Profit
What is an “Office of Profit”?
The term is used in Article 102 (1)(A) of the Indian Constitution which bars a member of the Indian Parliament from holding an office that would give its occupant the opportunity to gain a financial advantage or benefit. It refers to a post under central/state government which yields salaries, perks and other benefits. The actual amount of profit gained during the violation has no bearing on its classification. India had the Parliament (Prevention of Disqualification) Act, 1950, 1951, and 1953 exempting certain posts from being recorded as offices of profit. All these Acts were replaced by the Parliament (Prevention of Disqualification) Act, 1959. By virtue of section 3 of the said Act, certain offices did not disqualify their holders from being members of Parliament. The law was again amended in 2006.
The representatives cannot hold an office of profit under section 9 (A) of the Representation of People Act and Article 191 (E) of the Constitution also.
Over the years, four broad principles have evolved for determining whether an office attracts the constitutional disqualification.
- Whether the government exercises control over appointment, removal and performance of the functions of the office. Second,
- Whether the office has any remuneration attached to it. Third,
- Whether the body in which the office is held has government powers (releasing money, allotment of land, granting licences etc.).
- Whether the office enables the holder to influence by way of patronage.
Controversy over the 21 AAP MLAs who were appointed Parliamentary Secretaries to Ministers of the Delhi government raise following issues:
The Constitution specifies conditions which disqualify MPs, MLAs, Municipality and Panchayat members from membership of their respective institutions.
The first is holding an “Office of Profit” under the state or central government. The essence of this disqualification is that there should be no conflict between the duties and interests of an elected member. MPs and MLAs hold the government accountable for its work, and if they held an “Office of Profit” under the government, they might be susceptible to government influence and might not discharge their constitutional mandate fully.
Second, the Constitution caps the number of members in the union and state cabinet. Article 164(1A) specifies that the number of ministers including the Chief Minister has to be within 15% of the total number of members of the Assembly. (10% in the case of Delhi, which is not a ‘full’ state) Over the last few years, courts across the country have struck down the appointment of Parliamentary Secretaries for violating the Constitution.
Exemptions to the Office of Profit rule
The Constitution specifies that Parliament and state Legislative Assemblies have the power to enact laws and keep certain offices out of the preview of Office of Profit. In 1959, Parliament enacted a law specifying offices that would not attract disqualification under the Constitution. This law has been amended on several occasions. In 2006, it was amended to include the office of chairperson of NAC and offices under UPFDC, making them immune from disqualification.
In 1997, when the BJP was in power in Delhi, the Vidhan Sabha passed a law specifying two offices, holding of which would not disqualify an MLA from being a member of the House. This law was amended in 2006, when the Congress was in power, adding a third office to the list. It is this law that was amended by the Delhi Assembly in 2015, aiming to ensure that holding the office of Parliamentary Secretary does not disqualify 21 AAP MLAs from being members of the Vidhan Sabha.
Historical evidences from Centre and other states:
In 2004, Jaya Bachchan, Rajya Sabha MP from the Samajwadi Party, was appointed chairperson of the UP Film Development Council (UPFDC). The apex court held that it was an Office of Profit, and disqualified her from being a member of the Upper House. In 2006, BJP MPs sought the disqualification of Congress president Sonia Gandhi from the membership of the Lower House for holding an Office of Profit. Sonia was then chairperson of the National Advisory Council (NAC). She resigned her Lok Sabha seat, recontested the election, and came back.
High court judgments:
Appointments in many states have been challenged. A Telangana government order appointing Parliamentary Secretaries was stuck down in 2015 by the High Court in Hyderabad.
Also last year, the Calcutta High Court junked a law enacted by the West Bengal Assembly which provided for the appointment of Parliamentary Secretaries.
In 2009, such appointments were held unconstitutional in Goa, and in 2005 in Himachal Pradesh.
The common thread in the judgments was that Parliamentary Secretaries had the rank and status of government Ministers. The Calcutta High Court judgment held that the appointment of MLAs as Parliamentary Secretaries was an attempt by state governments to bypass the constitutional ceiling on the number of Ministers. In the case of Delhi, even though the Parliamentary Secretaries have not been given the status of Ministers with salaries and perks, 21 of them make up as much as 30% of the House.
Recent President Order and its role:
The President rejected an amendment by the Delhi government to the Delhi Members of Legislative Assembly (Removal of Disqualification) Act, 1997, which sought to make the position of Parliamentary Secretary in the Delhi Assembly exempt from the definition of “Office of Profit”. Twenty-one Aam Aadmi Party MLAs had been appointed Parliamentary Secretaries on March 13, 2015, and the Assembly, where the AAP has a brute majority, passed the amendment Bill on June 23 — days after a complaint was filed to the President seeking disqualification of these 21 MLAs for holding an Office of Profit. Also, a PIL against the government’s decision is pending before the Delhi High Court Chief Justice since May 2015.
Now that the President has rejected the Bill, the 21 AAP MLAs can potentially be disqualified should the Election Commission of India so decide. The Assembly was within its powers to bring the amendment, but given the special status of Delhi as a Union Territory, a Bill passed by the Assembly is not considered an applicable “law” unless it is passed by the Delhi Lieutenant Governor and the President of India
Why MLAs are at risk of disqualification?
Under Article 102(1) (a) and Article 191(1) (a) of the Constitution, a person shall be disqualified for being chosen as, and for being, a member of Parliament or of a Legislative Assembly/Council if he holds an “Office of Profit” under the central or any state government, other than an office declared not to disqualify its holder by a law passed by the Parliament or state legislature. The Delhi MLA (Removal of Disqualification) Act, 1997 did not include the post of Parliamentary Secretary as an “exempted post”.
Is the petition before the EC affected by the Presidential rejection?
Partly. If the President had accepted and signed the Bill, it would have been passed as a law, in which case the position of Parliamentary Secretaries would be exempt from the ambit of Office of Profit, and the plea to disqualify them would have been dismissed. Now that the President has rejected the Bill, it is up to the ECI to take a decision and give its recommendations to the President.
So what happens now?
The ECI has to basically decide whether the terms and conditions of appointment of Parliamentary Secretaries constitute an “Office of Profit.” The AAP government has claimed that the 21 Parliamentary Secretaries are not getting any salaries or perks for their work, and are “working for free”.
According to constitutional law expert, an office would not be an “Office of Profit” if there is no monetary benefit attached to the appointment. If the appointment letter issued to the MLAs includes any monetary benefit, the office would be considered an “Office of Profit”. According to Singh, “the offer of pecuniary gain is the test, even if the person declines to take that benefit”.
The President’s decision cannot be challenged in any court as it is his executive power under the Constitution of India. The Supreme Court cannot interfere. However, any decision taken by the ECI can be challenged before the Delhi High court by the aggrieved party. This means that the AAP can approach the court if the EC decides to disqualify the MLAs