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Disqualification of Jharkhand CM

  • Category
    Polity & Governance
  • Published
    2nd Sep, 2022

Context

Election Commission (EC) had issued a notice to Hemant Soren for prima-facie violation of Section 9A of the Representation of People’s Act and consequently recommended the disqualification as a member of the State Legislative Assembly.

About

  • Under Section 9A of the Representation of the People Act, 1951, the CM could face disqualification for entering into a government contract.
  • The Constitution of India does not define the Office of Profit. It has only mentioned it under Article 102 (1) and Article 191 (1).
  • EC recommended disqualification from the state Assembly in the mining lease case.

What is the significance of disqualification under “Office of Profit”?

  • MPs and MLAs, as members of the legislature, hold the government accountable for its work.
  • The essence of disqualification is if legislators hold an ‘office of profit’ under the government, they might be susceptible to government influence, and may not discharge their constitutional mandate fairly.
  • The intent is that there should be no conflict between the duties and interests of an elected member.
  • Hence, the office of profit law simply seeks to enforce a basic feature of the Constitution- the principle of separation of power between the legislature and the executive.

Provisions for Office of Profit

  • Legislators can face disqualification for holding other positions, which bring them, financial or other benefits.
  • Under the provisions of Article 102 (1) and Article 191 (1) of the Constitution, an MP or an MLA (or an MLC) is barred from holding any office of profit under the Central or State government.

Who has the authority to disqualify?

  • The President and the Governor have the authority to disqualify an MP, MLA, or MLC, with or without recommendations by the Election commission.

Can exemptions be granted under the law?

  • In the recent past, several state legislatures have enacted laws exempting certain offices from the purview of office of profit in addition to the existing provisions laid under Articles 102 and 191.
  • Parliament has also enacted the Parliament (Prevention of Disqualification) Act, 1959, which has been amended several times to expand the exempted list.

Judicial Stand:

In the case of appointing parliamentary secretaries:

  • Calcutta High Court judgment in 2015 held that since the position may confer the rank of a junior minister on the legislator, the appointment of MLAs as parliamentary secretaries was an attempt by state governments to bypass the constitutional ceiling on the number of ministers.
  • In 2009, the Bombay High Court also held that appointing parliamentary secretaries of the rank and status of a Cabinet Minister is in violation of Article 164 (1)of the Constitution.  
  • The Article specifies that the number of ministers including the Chief Minister should not exceed 15% of the total number of members in the assembly.
  • In 2009, such appointments were held unconstitutional in Goa, and in 2005 in Himachal Pradesh.

Conclusion

A provision requiring such a disqualification is needed to protect the democratic fabric of the country from being corrupted by executive patronage. It also secures the independence of members of parliament from the influence of the government.

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