Open Access Research Article
The Disputable Nuances of Office of Profit: An Analysis with Respect to the Election to the Legislative Houses (By-Arryan Mohanty)
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Article Details
The
Disputable Nuances of Office of Profit: An Analysis with Respect to the
Election to the Legislative Houses
Authored
By-Arryan Mohanty
Symbiosis Law School, Nagpur
Symbiosis Law School, Nagpur
Abstract
Office of profit
is essentially any post or position under the government held by a person apart
from the one they already hold which provides or has the tendency to provide
for monetary or material benefit to the occupant. This research work deals with
the office of profit with special regard to the members of State Legislative
Houses, viz. MLAs and MLCs. Articles
102(1)(a) and 191(1)(a) lay out the provision for disqualifications of MPs and
MLAs or MLCs respectively. It's possible that the recent incident in Jharkhand,
where the Chief Minister has been accused of asking the department he oversaw
for a mining concession, does not exactly fall under the office of profit
regulation. It relates to agreements made in the course of commerce or business
with the relevant government for the provision of commodities to or the
carrying out of any tasks the government undertakes.
The concept of
pecuniary or financial gain in respect to the “office” has been dealt with in
this research. To make this research more coherent, the offices of profit in
India have been compared to those in the USA and UK. That office of profit is a
Western notion, cannot be disputed and hence, the said comparison furnishes
this work with invaluable insights regarding the idea of the “office”. Even
after the existence of the said provision, certain malpractices in that regard
have plagued the State Legislatures all across the nation. The Narada Scam
presents a great example as to how official Legislative positions and posts can
be used to one’s advantage by eliciting bribes for the performance of some
unofficial functions and favors. This research work also deals with various
amendments that led to the gradual evolution of the theory and the usage of the
provisions dealing with office of profit. Ultimately, the exceptions to the
“office” have been discussed followed by numerous case laws related to the
same.
Introduction
The English Act
of Settlement, 1701[1], can be
considered as the root of the expression "Office of Profit," which
has been designed to facilitate protestant succession to the crown as well as
to reinforce the functioning of Parliament through specific assurances.
"No individual that bears profit-making position underneath the Crown, or
who gains a pension from the King, should be qualified to serve as a
participant of the House of Commons," the Act read. The term entered
India's legal discourse through the Morley Minto Reforms in 1909, which were
enacted during the British invasion of India. Nevertheless, even as England
went ahead and replaced the generalization in the notion of office of profit,
that only discussed disqualification of members if they were discovered
occupying a profit-making position under the king, with specifics in the ‘House
of Commons Disqualification Act of 1975’ India stayed the course.[2]
The main concept
of disqualification for occupying a government sponsored profit making position
is that the government does not stand in a place wherein it could influence the
motives and the decisions of the MLAs and the principle of separation of power
is maintained. Recently, 22 Biju Janata Dal members of legislative assembly
were exempted from disqualification due to occupying a profit-making position
under the state government in Odisha.[3] MLAs who've been entrusted as heads of
‘special development councils’, ‘district planning committees’, and the
‘Western Odisha Development Council’ will not be disqualified as MLAs,
according to the Odisha Offices of Profit (Removal of Disqualifications)
Amendment Act[4] passed by
the government of Odisha in 2016. However, the number of MLAs holding an office
under this act is staggering and may give way to the question whether the
doctrine of separation of power is still upheld.
Meaning & Scope Of ‘Office Of Profit’
The notion of
Office of Profit arrived in India from the British legal system, where the Act
of Settlement, 1701,[5] forbade
members of the House of Commons to hold offices of profit under their King, or
receiving a pension via the Crown. This was done so that the members can commit
to their administrative affairs without being influenced by the Royal family.
It is a rudimentary form of Montesquieu’s Doctrine of Separation of Powers,
where the power of the Royalty in the House of Commons is kept in check.
In India,
‘Office of Profit’ as a concept is given by ‘Article 102(1)(a) and Article 191’
of the Constitution. “Article 102(1)”
disqualifies a person who is chosen as a member of either House of Parliament
if the said member occupies an office of profit under the Central or State
Government.[6] Some
offices have been listed as exceptions by Parliament and thus, occupying those
offices won’t amount to disqualification.
‘Article
191(1)(a)’ gives a similar provision for Legislative Assemblies or Councils of
the States. It prohibits a member of a State Assembly or Council from holding
offices of profit under the Central and State Governments.[7]
Thus, certain offices as exceptions have been provided.
A skeleton of
this provision in the Constitution of India was provided by ‘the Government of
India Act, 1935’, where a person could be disqualified from membership of
either Council if they held an office of profit controlled by the Crown in
India, except any office proclaimed by Acts of the Federal Legislature that do
not disqualify the member from holding such office.[8]
A similar provision was made for Provincial Legislative Assemblies under
Section 69(1)(a).
‘The
Representation of the People Act, 1951’ also disallowed these members from
occupying an office of profit, although the term ‘office of profit’ is not
used. A person would be disqualified if they are a manager, secretary or a
managing agent of a corporation which is not a cooperative society, where the
relevant Government holds at least twenty-five percent of the shares.[9]
The Constitution
and the Representation of the People Act don’t define what ‘office of profit’
is. It was in Gulab Chand Chordia v. Thakur Narain Singh and others,[10] that
certain characteristics of an ‘office of profit’ were defined. It was expressed
that the essential characteristics needed for an ‘office of profit’ are:
(i) That it requires an
appointment by the State,
(ii) That it involves a salary paid
periodically,
(iii) That the time period of such
appointment is limited,
(iv) That said appointment is
terminable,
(v) That the appointment is
neither assignable nor heritable,
(vi) That the appointee of the
office is sui juris.
Some offices can
be exempted from such disqualification. “Section 3 of The Parliament
(Prevention of Disqualification) Act, 1959”, attaches a list of offices and
declares that none of the mentioned offices of profit under the control of
Central or State Government will disqualify the holder from
being a member
of Parliament.[11] This
includes offices such as the Chairperson of National Commission for Minorities,
delegations sent to foreign countries by the Government, and office of village
revenue officer, to name a few.
Constitutional
Validity Of The Office Of Profit
With the exception of specifying particular skills of
Members of Parliament and the Legislative Assembly, the Indian Constitution
also includes specific exclusions. Having an "office of profit" is
one of those exclusions. The division of powers among the Judiciary, the
Executive, and the Legislative is essential in a democratic nation. It is
critical, therefore, that only qualified lawmakers are chosen to and continue
in the State legislature and in the parliament. Eliminating those who occupy
profit-making positions is likewise an attempt in this way to maintain
legislators' integrity. The administration possesses the ability to affect an
individual, he or she may be able to fulfil his or her responsibilities as a
lawmaker and critic of the administration. The concept of 'Office of Profit' was born out of this
understanding. The British Constitutional system inspired this approach in
India. The English Act of Settlement, which was passed in 1700, was among the
first laws on the subject. Three broad concepts influencing the law on this
topic were established in the start of the 18th century. The concept includes-
?
Certain quasi positions are inconsistent with
Parliamentary participation.
?
The Executive's control over the House of Commons
should be restrained, as a result of the overabundance of officials who are
also representatives of the House.
?
A particular number of officials should be house
members in order for Parliament to have authority over the Executive.
The expression
"Office of Profit" is not mentioned in the Constitution or in the
“Representation of People Act of 1951”.[12]
Only the declaration of the bar and other regulatory authorities, such as the
Election Commission and the President, can determine its scope. The purpose of
the clause is mainly to ensure the integrity of members of Parliament by
excluding those who have received favours or privileges from the administration
and, as a result , are subject to influence since they are under a
responsibility to the Government.[13] The
legislation in this regard for Members of Parliament and State Legislative
Assemblies is governed by Articles 102(1)(a) and 191(1)(a).[14]
Parliament has a
minimal part in identifying the Office of Profit, and holding one does not
restrain a person from serving in the legislature. Article 103(1) of the
Constitution[15]
authorized the President to determine if any member of parliament has been
disqualified under article 102(1).[16]
There have been a few laws enacted for the very same aim, but they were not
entirely adequate. In 1954, the Bhargava Committee on Office of Profit was
established under the leadership of Pt. Thakur Das Bhargava to make up for the
lack of a cohesive, comprehensive statute. “The Parliament (Prevention of
Disqualification) Act”[17] was
proposed by the Panel. This Act, which was passed in 1959, covers the law
governing profit-making presence in India. This law states which offices are
exempt from disqualification. Regardless of the fact that the law was reduced
in some respects, such as defining a "compensating provision," it
failed to establish a "office of profit.” This phrase is not mentioned in
the Constitution or in any other article of legislation in India. Judicial
judgements are the most important source for determining what constitutes an
Office of Profit. The Joint Committee on Offices Profit, in addition to the
court, has helped define the word. The concept "office" has never
been interpreted explicitly. However, according to numerous judicial rulings,
an "office" refers to a position that is stable in nature and exists
independently of the person who holds it. An MP or MLA is prohibited from
occupying an Office of Profit under Articles 102(1)(a) and 191(1)(a) of the
Indian Constitution[18] because
it could place members in a condition to enrich themselves financially. "A
person will be barred from being nominated to and serving as a member of either
House of Parliament if they hold any Office of Profit position under the Indian
government or the State, unless it is an office declared by Parliament by legislation
not to disqualify its bearer. A person will be barred from being nominated to
and serving as a member of either House of Parliament if they hold any Office
of Profit position under the Indian government or the State, unless it is an
office declared by Parliament by legislation not to disqualify its
holder", the law states. Possessing
an Office of Profit is also a reason for exclusion under the “Representation of
People Act”.[19] Instances
have occurred in West Bengal, Karnataka, Telangana, Nagaland, Meghalaya,
Arunachal Pradesh, Punjab, Mizoram, and Manipur. The appointments were declared
"unconstitutional" in West Bengal, Telangana, and Punjab, and were
overturned by the relevant High Courts. The Karnataka High Court is now hearing
the case concerning the nomination of parliamentary secretary. In October 2017,
the state of Rajasthan enacted a statute making the appointments legal, however
the law's constitutionality has been questioned.
It was
established in Kanta Kathuria v. Manak Chand Surana[20]
that a Member of the Legislative Assembly cannot be dismissed for possessing an
'Office of Profit' unless it is demonstrated that the office acts independently
of the bearer of the aforementioned office. Mrs. Kathuria's nomination was
challenged in the aforesaid case since she worked as a Special Government
Pleader for the State of Rajasthan, that was purportedly an office of profit
government position. The applicant was just assigned to perform certain duties
given to her rather than occupying a permanent position, hence the job did not
qualify as an Office of Profit, according to the court.[21]
Pecuniary
Gain
It must have
been comprehended by now that “Office of Profit'' is broadly a government post
which is competent enough to yield or capable of yielding material and
pecuniary gains and benefits. Pecuniary gain is the financial or monetary
benefit arising out of occupancy of an office of profit in this context. It
also includes other material benefits arising out of the same. For example, if
a candidate elected for the post of the Member of Legislative Assembly (MLA),
and after being nominated for the seat happens to hold the office of a Lecturer
in a Government University which generates income which is additional to what
the person earns as an MLA, then the person may be deemed to be benefiting from
what has been titled as pecuniary gain arising out of the incumbency an office
of profit.
It is of
cardinal significance to note here that the occupancy of an office need not
generate any pecuniary gain in real-time to qualify the same as an office of
profit. The mere capability and potential of an office to generate monetary and
material benefits is enough to qualify it as an office of profit, that is to
say that monetary gains being receivable in respect to an office regardless of
the fact that no gain was actually received is enough to disqualify the holder
of the ground of occupancy of office of profit.[22]
To explicate it even more, let’s take the example we used in the last paragraph
again. The person, in this case, is being paid no salary and allowance
whatsoever for his post of Lecturer in the Government University. The only
remuneration and benefits being rewarded to him arise from the post of MLA that
the said person holds. Even after the circumstances being such, the MLA will be
disqualified under Art. 191(1)(a).[23]
This view was propounded by the Supreme Court in Jaya Bachchan v. Union of India[24] and
has played a vital role in assisting the concerned authorities in identifying
whether an office may be regarded as an office of profit or not.
Whether the
occupant of the office is so affluent that he/she voluntarily denies the
acceptance of remuneration and other allowances or is not provided with the
same in due time or is negligible in accepting so, is immaterial to the cause
of pecuniary gain. Even if the payment of allowances is in the name of
honorarium, no respite can be provided if it is capable of causing a financial
benefit to the office holder. However, if the office description carries no
remuneration and emolument whatsoever, then the holder may be excused as the
basic stipulation required to attain that state is not fulfilled. The
emoluments and remuneration may be expressly stated in the office description
or might be implied. When the allowances are implied, they are considered to be
a natural consequence of the occupancy of any office, that is to say that the
allowances will be receivable on the occupant’s end in any case as they are
inextricably connected with the post.
It is imperative
to grasp here that the allowances paid in order to reimburse the monetary or
material spending done by the holder of an office out of one’s own pocket for
the sake of discharging one’s duties with regard to the office being held by
him/her will not be, in any circumstance, considered to be and a part of
pecuniary gain or any other material gain for the matter so specified. In a
very similar manner, the allowances paid to the holder of an office for
journeying to other districts or states or for attending meetings or discharging
or attempting to discharge the duties in efficient and effective manner will
not be deemed to make such office eligible to be treated as an office of profit
provided that these actions are related to the description of the office and
are necessary for exercising the duties conferred and required by the same.
These are beyond the purview of the office of profit because they fall under
the category of what is known as “compensatory allowance”.[25]
Barring all that
has been stated above, pecuniary gains arising out of or resulting as a
consequence of a person’s own endeavours in any commercial field will not be
taken into account. Similarly, the gains resulting out of an MLA’s or MP’s or
for that matter any person eligible to be disqualified on the account of
holding an office of profit, appointment in any sector apart from the
government will not disqualify the holder. The same can be said about personal
investments too. The reason for the case being so is very simple. These gains
will not be accounted for as they do not constitute gains arising from an
office controlled or funded by the Government of India or any state or Union
Territory. It is imperative for the gain to arise out of a government office to
constitute disqualification.
Malpractices
Around Disqualification Due To Holding Office Of Profit Under The Government
Malpractice can
be defined as improper, illegal practice done with malafide intention. The MP’s
and MLA’s that are appointed in India are not allowed to hold houses of profit
although there are exceptions. The essence of disqualification under the
government sponsored profit making office law is that if legislators hold a
government “office of profit,” they may be subject to government impact along
with its influence and may not be able to carry out their constitutional
mandate honestly or fairly.[26] Since
“office of profit” is not defined in law, it varies from case to case. It’s
completely at the discretion of the judge to state as to what constitutes the
office of profit. Although there are some exceptions, there were members of
either house who were reported to be involved in malpractices and scams which
are discussed below.
The issue of
holding office of profit along with being an MLA or MP has been going on since
long. In 2004, Jaya Bachchan, who was MP of Samajwadi party was held liable for
holding a house of profit and was eventually disqualified. She was the
chairperson of Uttar Pradesh Film
Development Corporation (UPFDC) while also
being the cabinet minister.[27] In the same year, Anil Ambani who was also
from Samajwadi party, was elected as Rajya Sabha member. He resigned from his
seat, when asked about the office of profit, saying that he was abiding by his
rules of transparency. In 2006, in another incident, Sonia Gandhi was
disqualified but soon quit the position of Lok Sabha member, as she held the
office of National Advisory Council (NAC) along with holding a position in Lok
Sabha. [28]
In 2018, the
Election commission reportedly recommended that 20 MLAs of Arvind Kejriwal led
Aam Aadmi Party should be disqualified for holding office of profit. While the
AAP approached the Delhi High Court in opposition to the Election Commission’s
recommendations, the court declined to provide interim relief to the MLAs and
ordered the President Ram Nath Kovind to act according to the recommendations
of the Election Commission.[29]
In “Guru Gobinda
Basu v. Sankari Prasad Ghosal and ors,”[30]the
court concluded that the appellant held profit-making office of India as two of
the three companies were government companies under Section 2(18)[31] along
with Section 617[32] of
“Indian Companies Act 1956. Under Article 102 (1)”[33]
of Indian Constitution and therefore was disqualified from being chosen or
being the member of either house. The case justifies that the office of profit
depends on a lot of factors like who is appointing authority and who provides
the remuneration.
There are so
many cases in which members of legislative assembly or legislative council were
disqualified as they held office of profit. Even in Soniya Gandhi’s case, she
was re-elected after the law was amended to exclude the position of Chairperson
of NAC under office of profit. Accused positions of corruption against people
with high political and administrative status have become an eminent feature of
Indian politics.
Narada Scam
Mathew Samuel was the mastermind behind the Narada
sting operation, which targeted AITC personnel and politicians. Number of
politicians and cops were found accepting cash bribes in exchange for giving a
corporation with benefits. It was performed in 2014 for the Indian newsmagazine
Tehelka, and months before the West Bengal legislative elections, it was
published.
CBI, ED and a
parliamentary ethics committee are currently investigating this case. AITC has
denied the charges, claiming that the money was given to them as a gift.
MPs like Mukul
Rou and Suvendu Adhikari as well as state ministers Madan Mitra and many more,
were seen accepting alleged bribes.[34]
Amendments
Of The Parliament (Prevention Of Disqualification) Act, 1959
According to
Article 102(1)(a) and Article 191(1)(a) of the Indian Constitution,[35] MPs or
MLAs are prohibited to occupy any profit-making office within the Central or
State governments unless it has been excused by the Parliament, by law. If he
does so, he would be disqualified. The purpose of this ground for
disqualification is to avoid the influence of the Executive over the duties
discharged by the
legislators.
On 4th April
1959, the Parliament passed the Parliament (Prevention of Disqualification)
Act, 1959 in which certain offices are listed that are exempted from ‘office of
profit’ in Section 3 of the Act.[36] The
Parliament had also enacted this Act in the years 1950, 1951 and 1953 but they
were repealed under Section 5 of this Act.[37]
After 1959, this
act has been revised five times in the years 1993, 1999, 2000, 2006, 2013 to
expand the list of offices exempted from the purview of ‘monetary gaining
positions’ disqualification.[38]
“The Parliament
(Prevention of Disqualification) Amendment Act, 2006” excluded 55 offices held
by the MPs from disqualification with retroactive effect from 1959. In the case
of “Consumer Education and Research
Society v. Union of India,”[39] the
Supreme Court ruled that the amendment was constitutionally valid.
With this
amendment act, the Parliament was attempting to expand the list of exempted
offices to save over 40 Members of Parliament from getting disqualified. Former
President A.P.J. Abdul Kalam was initially not satisfied with the Bill and had
returned it on the ground that there were no transparent criteria to include
the offices in the exemption list. Eventually, he had to sign it.[40]
These amendments
have removed the disqualification status from plenty of posts within both the
governments over the years.
Exceptions
To Disqualification Of Members Upon The Incumbency Of An Office Of Profit Under
The Government
When it comes to
disqualification of members of several Legislative Assemblies around the
country for holding a profit-making office, there are some exceptions. The
position of Minister in the Union Government or any State Government is the
first and principal exception to the concept of a ‘office’.[41]
This exception has been explicitly mentioned under Art. 191 of the Constitution
for the matters and purposes of State Legislatures. The exceptions for the
Members of Parliament (MPs) have been set forth in the “The Parliament
(Prevention of Disqualification) Act, 1959”. The exceptions for MLAs have been
asserted through the various Prevention of Disqualifications Acts passed by
numerous State Legislative Assemblies.
As stated, the
exceptions to the office of profit have been mentioned in the respective laws
passed to that effect by different State Legislatures. For example, The Bihar
Legislature (Removal of disqualifications) Act, 1950, mentions the names of
certain offices and posts which are not considered office of profit if held by
MLAs or MLCs of Bihar Legislature.[42]
Another example could be The West Bengal Legislature (Removal of
Disqualifications) Act, 1952. Under this act, many posts have been kept beyond
the purview of or exempted from the purview of profitable posts including the
office of Parliamentary Secretary or Parliamentary Under Secretary, the Office
of Chairman or member of a Road Transport Corporation and a few other offices.[43] These
exceptions have been referred to by the Court whenever an issue arises that
requires the perusal of the said Acts. The subject-matter of all these laws is
more or less the same but does contain peculiarities and regional influences.
Many MLAs and MLCs are necessary to hold numerous specialized offices for the efficient
management of various ministries and parts of the government, hence these
exemptions are critical for the good functioning of State legislatures.
Comparison With Other Nations
Office of Profit in the US
The thought of
holding a “office for monetary benefit” has not clearly defined itself in the
constitution. The point is that whenever an executive officer like a judge or a
politician holds a position of power for monetary benefits, it can be assumed
that they might either be incompatible with their particular duty and it may
affect the position as well as the loyalty to the office.[44]
Instead of
becoming an office with accountability to the people, it becomes a point of
corruption.
There is an
emoluments clause in the USA, which is also recognized as foreign emoluments
clause, it is a provision of the constitution of the USA mentioned in “Article
I, Sec.9, Para 8.” that normally prohibits officeholders of federal
organisations to receive or accept any gift or payments from or any other item
that carries a significant value from state rulers of foreign countries or
their representatives. It is also mentioned in the constitution of USA about
domestic emoluments clause which prohibits the president of USA from accepting
any gifts or similar things of monetary value for his services as the supreme
authority. The main motive behind this only was to ensure that the leaders of
the country are not at any cost influenced through providing them with luxury
items because it is stated that this was corrupt practice which was generally
followed among diplomats and rulers of the European union.
Interestingly,
some provisions like nobility titles were dropped from the first draft but were
restored on the kind request of Charles Pinckney who talked about the
importance of preserving officers of federal agencies and politicians who hold
the office from foreign influences.
The final text
included a provision which permitted the receiving of items of monetary value
with clear approval from Congress. There was a surprising experience of
Benjamin Franklin, who was a minister to France and he was presented with a
snuff box with jewelry by Louis XVI, he didn’t want the king to feel bad so he
asked for the permission to keep the gift from Congress, the permission was
given too.[45]
Office of Profit in United Kingdom
In the UK, there
are only three ways a Member of the House of Commons’ seat can be vacated,
which are death, disqualification, and expulsion.[46]
Historically,
serving within the House of Commons, that is, the Lower Chamber of the
Parliament, was met with a lot of reluctance. Nor was there a proper procedure
for resignation in place prior to the sixteenth century, as it was considered
unnecessary as the parliament usually met for a few weeks only.
On 2nd March
1624, the House decided to prohibit Members of Parliament from resigning from
their seats.[47] Not even
a claim of terminal illness always ended in an acceptance of a Member’s
resignation. Having to go abroad for royal business was a reason commonly used
by Members to apply for resignation, but the success of such applications being
accepted tended to be very low.[48]
It was in 1701
where the Act of Settlement inserted the concept of ‘office of profit.’[49] The Act
essentially prevented Members from occupying an office under the control of the
monarch, or to receive pension from the Crown. It was recognized that
acceptance of a paid office or pension under the Crown would not be agreeable
with the membership of the House of Commons. This was because these offices
included salaries from the Crown itself, and since a Member had to bring under
scrutiny actions of the Crown or its Government, accepting such an office was
seen as worthy of disqualification from the House. In 1707, the Act of Parliament provided that
if a Member is disqualified because of acceptance of an Office of Profit, such
Member can be elected again.[50] Thus, a
Member could be re-elected to the House of Commons.
In 1740, a
Member, Sir Watkin Williams Wynn’s membership came into question when he
inherited the stewardship of the lordship and manor of Bromfield and Yale, from
his father. It was decided by t
he House that he
had, in fact, vacated his seat by accepting that appointment. Thus, the House
of Commons Disqualification Act 1741[51]
was made, which listed the offices which were disallowed with membership of the
House. From here the idea of using a certain number of Crown stewardships for
the aim of helping Members in order to vacate their seats, began.
In 1975, the
House of Commons (Disqualification) Act 1975 came into power. It listed various
offices, such as a judicial office, civil services, and armed forces, which
were not compatible with membership to the House. However, Section 3 stated
that a person won’t be deemed unfit for membership of the House of Commons if
they occupy an office of profit under the control of the Crown.[52] Instead,
Section 4 of the Act reserved two such offices to be used for resignation of a
member. The offices of the steward or bailiff of the three Chiltern Hundreds of
Stoke, Desborough and Burnham, and the Manor of Northstead will be used as
offices of profit for vacating the position of a Member of the House of
Commons, thus disqualifying them from membership.[53]
Thus, currently,
to resign from the House, a Member would have to apply to the Chancellor of the
Exchequer in order to obtain appointment to one of the two mentioned offices.
The two offices are only ‘Office of Profit’ in name, and do not carry any monetary
gain with it. They are solely used as a way for resignation by a Member. This
office is retained by such a Member until another Member wishing to retire
applies for that office. With the existence of two such offices, i.e The
Chiltern Hundreds and the Manor of Northstead, it allows for two Members to
alternately resign from the House at the same time.
Currently, Tracy
Brabin of the Labour Party occupies the office of Crown Steward and Bailiff of
the three Chiltern Hundreds of Stoke, Desborough and Burnham. The office of the
Manor of Northstead is occupied by Owen Paterson, of the Conservative Party.
Prominent Cases
Ashok
Kumar Bhattacharyya Vs. Ajoy Biswas and
Ors.
Citation: (1985)
1 SCC 151
Hon'ble
Judges/Coram: A. Vardarajan, S.
Murtaza Fazal Ali and Sabyasachi Mukherjee, JJ.
In this case of
Ashok Kumar Bhattacharyya v. Ajoy Biswas
and Ors.,[54] the main
contention is whether the accountant-in-charge of the Agartala Municipality be
considered as a profit making position under the state government and hence be
considered a ground of disqualification for the respondent Ajoy Biswas. Both
the appellant as well as the respondent were contesting in the election
for the West
Tripura Parliamentary Constituency. Proviso (ii) of Section 66(2) of the Bengal
Municipal Act, 1932[55] which was
extended to the State of Tripura in 1975 provides that “Without the approval of
the State Government, no appointment with a monthly earnings of greater than
200 rupees or a pay rate increasing by regular increments to greater than 200
rupees may be constituted, as well as every nomination to, and dismissal from,
any such nomination must be confirmed by the State Government.” Considering
that, it was determined that employment of the respondent would be, in fact,
considered as a profit making position. According to the Article 102(l)(a)[56] as well
as Article 191(l)(a),[57] an
individual being elected to Parliament or a Legislature must not occupy a
government sponsored profit making position. This provision is made so that no
governmental pressure could be exerted on the members to influence their
decisions. However, upon analyzing it was considered that the Agartala
Municipality is a local authority since there is only some amount of authority
that the Tripura government has over the Municipality and is not entirely under
its control and hence the accountant-in-charge of Agartala Municipality
wouldn’t be considered as a government sponsored profit making position. Hence,
the respondent had not been disqualified.
Jaya Bachchan Vs. Union of India (UOI) and Ors.
Citation: AIR
2006 SC 2119
Hon'ble
Judges/Coram: Y.K. Sabharwal, C.J.,
C.K. Thakker and R.V. Raveendran, JJ.
The case of Jaya
Bachchan Vs. Union of India (UOI) and Ors,[58] helps to determine the answer of the question
whether occupying a profit making position but not receiving such profit or not
using the perks of such a job be considered as a ground for disqualification.
Jaya Bachchan had been appointed as the Chairperson of the UP Film Development
Council by the government of Uttar Pradesh. Simultaneously, she was a member of
the Rajya Sabha. The appellant was given an honorarium of Rs. 5,000 along with
allowances and other perks. This appointment is, without a doubt, a
profit-making position under state government, however it was argued since the
appellant did not use the given perks or receive the honorarium amount, there
is no pecuniary gain that has been availed or claimed. It was argued that even
if the appellant had been appointed for a post which had carried a remuneration,
but if the remuneration was not paid, it wouldn’t be considered as a government
sponsored profit making position.[59] However,
it was decided that it does not matter if the remuneration is received or not,
but that it is due and receivable.
Therefore, it did not matter that the
appellant had not used the perks she was allotted or that she did not receive
the remuneration. What matters is that those perks and the remuneration was due
to her and she was entitled to receive them. Hence, it was considered as an
office of profit and therefore the appellant was disqualified.
Divya Prakash Vs. Kultar Chand Rana and Ors.
Citation: AIR
1975 SC 1067
Hon'ble
Judges/Coram: A. Alagiriswami and R.S. Sarkaria, JJ.
In the case of
Divya Prakash Vs. Kultar Chand Rana and Ors.,[60]
The main contention was whether the respondent was occupying a government
sponsored profit making position at the time of filing of nominations. The
respondent, Kultar Chand Rana had had an honorary post of Chairman of the Board
of School Education of Himachal Pradesh when he was filing for nominations in
the Himachal Pradesh State Legislative Assembly. He was appointed under the
Section 18 of the Himachal Pradesh Board of School Education Act, 1968.[61] Therefore
there is no doubt that the office was under the government, however the
question that arises is whether it is an office of profit or not. The
respondent was not entitled to receive a salary, but the post had a pay scale attached to it which was argued to
be a means of profit. The Court rejected the contention of the appellant. It
was held that the Board had no authority to fix a salary structure for the
Chairman and had no power over the appointment of the Chairman. Therefore, the
defendant had not occupied a profit-making position and the appeal was
dismissed.
Citation: AIR
1964 SC 254
Hon'ble
Judges/Coram: S.K. Das, Acting C.J.,
J.R. Mudholkar, K. Subba Rao, N. Rajagopala Ayyangar and Raghubar Dayal, JJ.
In the case of
Gurugobinda Basu Vs. Sankari Prasad Ghosal and Ors.,[62] The
appellant, Gurugobinda Basu was a partner of the firm that served as the
auditor for a number of corporations which were owned by the government as
defined under the Indian Companies Act, 1956.[63]
The appellant was also occupying a position which was appointed to him by the
West Bengal State Government. He used to get paid by both of these offices. He
contested in the election of Lok Sabha and won but his election was challenged
on the grounds that he occupied profit-making positions under the Centre and
the
State government
and should be disqualified from running for election.[64]
The election Tribunal ruled that he held monetary gaining positions under the
government and hence he was disqualified. An appeal was filed to the Calcutta
High Court which was dismissed; however, the fitness certificate was granted
under Article 133(1)(c) of the Constitution.[65]
The sole issue
that needed to be addressed by the Court was whether the appellant was
disqualified within the purview of Art. 102(1)(a) of the Constitution or not.[66] The
Supreme Court found that the appellant was an auditor of the government
companies due to which his appointment and removal from offices solely rested
with the Central Government and India's CAG held complete authority over the
appellant. Even though the company paid the auditors, the remuneration was
decided by the Central Government under the Indian Companies Act.[67] The Court
further discarded the argument that all the factors of the five test of
appointment[68] must
coexist and every test should be fulfilled to declare an ‘office of profit’
within the Government. If the government has power over the appointment,
removal or remuneration of the holder of office and any one of the elements is
present, then that would be an ‘office of profit.’
The appeal was
dismissed by the SC and was ruled that the test of appointment, removal from
the office and the source of remuneration is necessary in the present matter.
The Court agreed
with the Election Tribunal and the High Court and held that the appellant
occupied a government sponsored profit-making position under Article 102(1)(a)
of the Constitution[69] due to
which he was disqualified.
Pradyut
Bordoloi Vs. Swapan Roy
Citation: AIR
2001 SC 296
Hon'ble Judges/Coram: R.C. Lahoti and Shivaraj V. Patil, JJ.
In the case
Pradyut Bordoloi Vs. Swapan Roy,[70] the
appellant and the respondent filed for nomination in the by-election in
Margherita Legislative Assembly Constituency No. 124 where the Margherita Block
Congress Committee’s working President filed a complaint for disqualification
of the respondent from the election on the ground that the respondent was
working for the company Coal India Ltd. in which the Government had not less
than 25% shares.
The appeal filed in the Supreme Court needed
to decide whether the respondent was holding a profit-making position under the
Government and whether he was ineligible for being a manager under a company
where the Union Government had not less than 25% shares.
The Court took
various case laws into consideration and applied the determinative test of
appointment on the former issue. It was stated that if the government had no
control over the appointment or removal of the person from the office then that
person did not hold a position under the Government. Therefore, the appeal was
rejected by the Court and it was ruled that the respondent had not occupied
government sponsored profit-making position and hence could not be disqualified
under Article 191(1)(a)[71] of the
Constitution. The Government had no authority over the appointment, removal and
duties of the respondent hence it was not a government sponsored profit-making
position.
Conclusion
The disputable
nuances of government sponsored profit making office in relation to election of
legislative houses can be looked through various lenses.
The dispute
arises when the phrase “office of profit” is challenged in the court. This is
because the Constitution or any other Act does not specify the definition of
the above mentioned phrase. Although some landmark judgements have provided the
periphery of this phrase, it still remains to be the topic of debate. The
‘Gulab Chand Chordia v. Thakur Narain Singh and others’ case lays out some key characteristics of
the government sponsored profit making office.
The government
sponsored profit making office in the USA and United Kingdom explains the
history of the system of disqualification of members and how the system evolved
over the time.
The instances of
Sonia Gandhi, Anil Ambani, Jaya Bachchan etc show that malpractices of
occupying a lucrative position or government sponsored profit making office is
not a new concept and people have been involved in the cases of malpractices.
The Narada scam also briefly talks about how the Indian politicians who are
high ranking officials, accept bribes of exorbitant amounts.
The section of
Amendments also highlights that the law has been amended in order to expand the
list of offices. Case overviews analyses the essential case judgements which
play a significant role in defining certain terms and lays out conditions required
to qualify an office under office of profit.
The Key Takeaways Of The Article Includes-
Through this
article, we get to know that the profit yielding offices need to be separated
so that the MLA’s or MLC’s can focus entirely on the administrative work
without getting influenced. This also maintains the constitutionality of the
Doctrine of Separation of Powers.
Office of profit
does not need to yield real time pecuniary gain, the mere potential of becoming
financially enriched is enough to qualify under office of profit. The section
of pecuniary gains also underlines that compensatory allowances and the
allowance paid in order to reimburse the money paid out of one’s own pocket
will not count as pecuniary gain.
There are 55
offices which come under the exception of government sponsored profit making
offices and exceptions of ministers under the union or state government are
also laid down that justifies that some of the posts require exemptions. This
is because such posts need extensive knowledge in various fields for the proper
functioning.
Overall, the
article talks about the disputes, the cases, exceptions and a lot of other key
factors that help us in realizing that the definition of the phrase “office of
profit” is much required. Although there have been amendments in the law and
there are precedents, this phrase needs a justification along with the
illustration and explanation.
Article Information
The Disputable Nuances of Office of Profit: An Analysis with Respect to the Election to the Legislative Houses (By-Arryan Mohanty)
Authors: Arryan Mohanty
- Journal IJLRA
- ISSN 2582-6433
- Published 2022/10/03
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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