Issue

Context:

• In 2016, the Election Commission of India (ECI) had issued a notice to the 27 MLAs as a consequence to a petition seeking disqualification for allegedly holding office for financial remuneration.
• According to the complaint by ECI, the MLAs were illegally holding posts of chairpersons of Rogi Kalyan Samitis (RKSs) of different government hospitals in Delhi
• Such pleas are sent to the president who forwards it to the EC. The EC then gives its opinion based on which the president has to issue orders.
• President Ramnath Kovind has dismissed a plea to disqualify 27 ruling Aam Admi Party MLAs of Delhi for allegedly holding office of profit

About:

• The word ‘office’ has not been specifically defined in the Constitution or the Representation of the People Act of 1951.
• Articles 102(1)(a) and 191(1)(a) of the Constitution merely states that an MP or MLA is barred from holding an office of profit as it can put them in a position to gain a financial benefit.
• However, different courts have interpreted it to mean a position with certain duties that are more or less of public character.
• In simple terms, office of Profit is a position in the government which should not and cannot be held by an MLA or an MP. The post can yield salaries, perquisites and other benefits. 
• Disqualification for holding office of profit reinforces the concept of separation of powers, especially of the executive and legislative.
• The rationale behind the law is to secure independence of elected representatives and refrain them from pecuniary or other favours from the executive.

Background

• The origin of the term ‘office of profit’ can be traced to the English Act of Settlement, 1701. Under this law, "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."
• Makers of the Constitution wanted that legislators should not feel obligated to the Executive in any way, which could influence them while discharging legislative functions.
• The debate over office of profit dates back to 1953 when the EC had to decide whether MLAs of the Vindhya Pradesh Assembly should be disqualified for appointment as members of the district advisory council. 
• The Supreme Court upheld the disqualification of Jaya Bachchan from Rajya Sabha in 2006 over the issue of holding an office of profit while being a MP.

Analysis

• The issue of office of profit (OoP) props up when governments appoint members of parliament or state legislative assembly to various posts, especially the post of parliamentary secretary.
• Such a move is often taken to appease dissident members or accommodate those which couldn’t make it to the council of ministers.
• A special case to be taken note of is that of parliamentary secretaries. This position is equivalent to the rank of minister of state which violates the 15% ceiling on number of ministers to be appointed for states and 10% in case of Government of NCT of Delhi.
• Various states have created offices to accommodate non ministerial members of legislative assembly, eg, West Bengal, Karnataka, Telangana, Nagaland, Meghalaya, Arunachal Pradesh, Punjab, Mizoram and Manipur.
• In some states such offices have been termed unconstitutional by the courts whereas in some states bills have been proposed to make exemptions for these offices.
• In two decades an EC decision to disqualify a legislator/s on basis of holding office of profit has been struck down by a court, raising serious doubts about the commission's fairness and credibility.

What does Representation of people’s act say on Office of profit?

• RPA doesn’t clearly define what constitutes an office of profit.
• Under section 9 (A) of the Representation of People's Act, elected representatives, MLAs or MPs being, public servants, cannot hold an office of profit.
• Being left undefined, the section has often found itself in a conundrum of political allegations, questioning credibility of Election commission and frequent judicial interventions.

How do courts decide on ‘office of profit’?

1. Supreme Court in Jaya Bachchan vs Union of India(2006) define office of profit as any office capable of yielding a profit or pecuniary gain
2. In Swapan Roy vs Pradyut Bordoloi case (2001), SC has laid down certain parameters to check whether an office constitutes office of profit or not:                   
3. Whether government has appointed?
4. Whether government has power to dismiss or remove?
5. Is government paying the remuneration?
6. Whether government determines or controls functions of such office?
7. Whether functions are performed for the government?

What does not constitute an Office of profit?

• Articles 102 and 191themselves clarify that “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”.
• The Parliament (Prevention of Disqualification) Act, 1959, lists the offices whose occupants will not attract disqualification.
• Similarly, States have passed their own laws enumerating posts that do not invite disqualification a state of affairs that has contributed to the confusion and sharpened disputes about what exactly an office of profit is.
• The Administrative reforms commission has suggested that all offices in purely advisory bodies where the experience, insights and expertise of a legislator would be inputs in governmental policy, shall not be treated as OoP, irrespective of the remuneration and perks associated with it.

Reducing confusion and bringing clarity on the matter of Office of profit

• As office of profit issue brings the question of disqualification of MPs, the Representation of people’s act should be duly amended to determine such cases objectively. It will negate the need of multiple laws to deal with disqualification separately as is being done in many states.
• Parliamentary joint committee on office of profit have also suggested office of profit parameters like remuneration, executive, judicial or legislative powers, whether the office wields influence or power by way of patronage etc
• The 2^nd Administrative Reforms Commission (ARC) has held that all offices involving executive decision making and control of public funds shall be treated as OoP and no legislator shall hold such offices.
• The 2^nd ARC has also suggested that all offices in purely advisory bodies where the experience, insights and expertise of a legislator would be inputs in governmental policy, shall not be treated as OoP, irrespective of the remuneration and perks associated with it
• The National Commission to Review the Working of the Constitution recommended that the Constitution should be suitably amended to empower the Election Commission to identify which offices should be deemed to be offices of profit and which not.
• In England, at the time of creation of an office, it is determined and mentioned whether it constitutes an office of profit. India can take cue from such a practice where the complexities of disqualification and judicial intervention can be reduced.

Lawmakers should amicably make discussions to specify the criteria for office of profit. It should involve consultative process with feedback from the Election commission of India, judiciary and political experts. It is essential to revisit the laws on disqualification and Office of profit in order to avoid conflict of interests, for MPs and MLA’s to discharge duties honestly, ensure separation of powers and strengthen the democracy overall.

Learning Aid

Practice Question

President recently rejected Election Commission’s petition to disqualify Delhi MLAs in office of profit case. What is office of profit and how is it determined? Examine on how frequent cases of office of profit can be objectively determined.