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Office of Profit In India

In India, the office of profit disqualifying the holder was imported from Britain and made its appearance for the first time in the Act of 1909 which embodied the Morley- Minto Reforms proposals [1].

The basic idea was - and remains - that the legislators should not be vulnerable to temptations an executive can offer. The framers of the Constitution thoughtfully incorporated Article 102 (1) and 191(1), prescribing the restriction at central and state levels. In the Indian constitution Art.102 and Art 191 deal with disqualification of the members of Parliaments and state legislature respectively.

Art.102 (1) (a) provides for the disqualification of the membership of either house of parliament and read it as follows:
 102. Disqualification for membership – A Person shall be disqualified for being chosen as, and for being, a member of either house of parliament –
(a) if he holds any office of profit under the Government of India or the Government of any State, other than an office declared by Parliament by law not to disqualify its holder;

There is a similar provision in the constitution of in the Constitution for the disqualification of members of the legislative assembly under Art.191 (1)

The expression  office of profit  has not been defined in the Constitution or in the Representation of People Act 1951. Its ambit has to be inferred only from the pronouncement of the courts and other competent authorities like the Election Commission and the president. The object of the provision is to secure the independence of the members of Parliament and do not contains persons who have received favors or benefits from the executive and who consequently being under an obligation to executive might be amenable to influence.

Rationale For The Disqualification For Holding An Office of Profit

The underlying concept behind these two articles is the principle of separation of power between the functionaries of a state like the legislative , judiciary and the executive. The principle of separation of powers enjoins that the three organs of the government- the executive, the judiciary, the legislature should be separate from each other. This is to ensure the isolation, immunity, or independence of one branch of government from the actions or interference of the another and to ensure checks and balances.

The object of enacting Articles 102( 1) (a ) and the 191 (1) a is that there should not be any conflict between the duties and interests of an elected member and to see that such an elected member can carry freely and fearlessly his duties without subjected to any kind of governmental pressure, thereby implying that if such an elected person is holding an office which brings him remunerations and if the Government has a voice in his functions in that office there is every likelihood of such persons succumbing to the wishes of Government. These articles are intended to eliminate the possibility of such a conflict between duty and state so that purity of legislature is unaffected. The true principle behind these provisions in Article 102 (1) (a )is that there should not be any conflict between the duties and interest of the elected member.

Article 102 (1) (a) of the constitution says that a person shall be disqualified from being chosen as and for being a member of the either house of the parliament:

  • If he holds any office of profit under the Government (center or state ) other than an office declared by parliament by law not to disqualify its holder
  • An office of profit need not be necessarily confer pecuniary benefit, it is sufficient if it bestows administrative and executive powers.

This provision is thus designed to protect the democratic fabric of the country being corrupted by executive patronage and also secures the independence of the MPs and MLAs from the influence of the Government so that they discharge their functions without fear or favor. The presumption is that if a legislature receives benefit from the executive then he may not be independently scrutinize the actions of the Government. It ensures that parliament may contain persons who are amenable to the Government because receiving benefits from it.


Office Oof Profit Position In Other Countries

In the United Kingdom ( U.K) the law evolved in England in the context of struggle between the crown and the House of Commons Disqualification Act 1957 ( reenacted in 1975 ) replaced disqualification for holding  an office of profit  under the crown by disqualification attached to the holding of specified offices. There are essentially three broad reasons for the disqualification.:

  1. The physical impossibility for certain office holder of attendance at Westminster
  2. The risk of patronage, and,
  3. The conflict of constitutional duties


Under sec 1 of the House of the Commons Disqualification Act 1975 the disqualifying offices fall into the following categories:

  1. A great variety of judicial offices, listed in schedule 1 of the Act. The principle is that no person may hold full-time judicial office and to be a practicing politician
  2. Membership of the regular armed forces of the crown
  3. Membership of any police force maintained by the police authority
  4. A great variety of disqualifying offices arising from chairmanship or membership of commissions, boards, administrative tribunals, public authorities and undertakings, in few cases disqualification attached to only particular constituencies. As these offices constitute wide name each has to specify by his name,
  5. Membership of the legislature of any country outside the commonwealth except the Republic of Ireland. It is likely that the members would be disqualified

In the United States Article 35 [2]of the U.S. constitution mentions the phrase and define it thus:  An Office to which fees a salary or other compensation is attached is ordinarily an office of profit In the Australian constitution section, 44 [3]prescribes certain disqualification which renders a person incapable of being chosen or of sitting as a member of either house.

The section is as follows:
Iv) Hold any office of profit under the crown or any pensions payable during the pleasure of the crown out of any of the revenues of the commonwealth.


Office Of Profit Indian Perspective

Definition
The word ‘ profit’ connotes the idea of pecuniary gain
Constitution of India doesn’t define the term Office of profit similar to the other grey area of the constitution, it is the judiciary which interpreted it in the case of Ravanna subanna v. G.S.Kaggerappa [4] The word  profit connotes the idea of some pecuniary gain attached to the office. Supreme court, in this case, said that 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 indicating whether the office really carries any profit

In case of Chandrasekhar Raju v. vyricherla Pradeep kumar[5] the supreme court after examining the catena of authorities, it was opined:

  1. The power of the government to appoint a person in an office or to revoke his appointment at its discretion. The mere control of the government over the authority having the power to appoint , dismiss or control the working of the office employed by such authority does not disqualify that officer from being a candidate for election as a member of legislation.
  2. The payment from out of the Government revenues are important factors in determining whether the person is holding an office of profit or not of the government Though payment from a source other than the Government is not always a decisive factor in determining office of profit.


The whole point that requires consideration is how the judiciary interprets this provision of the office of profit . The plain meaning of this expression seems to be that an office must be held under Government to which any pay salary emoluments or allowance is attached. Court took this view to define this undefined area of the constitution

Debate In The Constituent Assembly On The Inclusion Of Office Of Profit

Notwithstanding the fact that the term 'office of profit' has not been defined in the Constitution, there is no confusion regarding its meaning. Even members of the Constituent Assembly had no doubts about its importance or significance in a clean polity. In the above section judicial interpretation of the word  office of profit  has been discussed. In this section the philosophy of the constitution-makers is going to be discussed.

The issue of disqualification has been discussed between the Naziruddin Ahmed and Rk Choudhary on May 19, 1949 [6] . On March 9, 1950, the issue was debated extensively in the Interim Parliament, when the government introduced the Parliament (Prevention of Disqualification) Bill to replace the Ordinance exempting offices such as that of Parliamentary Secretary from disqualification.

The ground for disqualification has also been discussed in a letter by, Sardar Vallabhbhai Patel wrote to Jawaharlal Nehru:
"You will recall that when the question came up about granting disqualification on account of holding an office of profit under the government, the question arose about their holding office as member of various committees, boards etc appointed as a member by government , we might exempt those who might be appointed as member by the Government with the consent of the speaker [7].

This would severely restrict the number of the members who would be getting such exemptions and speaker could be depended upon to safeguard against the abuse of this power or converting this into the patronage by the executive . His caution was prophetic our national leaders could see the probability of misuse of this provision by the government to allure the MPs and MLAs . A parallel could be found in the British Constitutional history. Our leaders did not want to repeat this system in Indian scenario. Here are some excerpt from the debate of the constituent Assembly on the disqualification of members of parliament due to  Office of profit .

This is a remark made by Ambedkar on the 2nd of June, 1949. Responding to an amendment made by K.T. Shah, that literacy requirements be incorporated into the Constitution, Ambedkar replied that I think that is a matter which might as well be left to the Legislatures. If the Legislatures at the time of prescribing qualifications feel that literacy qualification is a necessary one, I no doubt think that they will do it.

This seems to suggest that the framers (or at least, Ambedkar) believed that the powers given to Parliament under the omnibus clauses of (what became) Articles 84 and 102, including the power to prescribe literacy qualifications. So in the Constituent Assembly the debate on the adoption of Qualification and disqualification took place hand in hand. In the constituent Assembly the reason for the adoption of the clause to make the Institution of representation responsible I will argue, however, that the overall tenor of the Constituent Assembly Debates makes it clear that educational requirements go against the concept of suffrage and democracy that the framers meant to write into the Constitution.

As Dworkin has correctly pointed out, there might often be a clash between the framers’ intentions about the words they were using, and what they intended the words would do – in other words, between the concepts that they laid down in the Constitution and the concrete conceptions that they thought were the correct interpretation of those concepts. I will attempt to show that Ambedkar’s conception of suffrage and political candidature that is reflected in his comment of 2nd June 1949, is at odds with what comes out of the rest of the Debates.

Joint Parliamentary Committee ( Recommendations[8]

The committee said ,in its 186 –page report , that it was essential to evolve the principles and generic criteria before defining the term  office of profit. The committee suggested as :

  1. Any office under the control of the Government of India or the government of a state, whether or not the salary or remuneration for such office is paid out of the public revenue of the government of India or of the government of state.
  2. Any office under a body, which is wholly or partially owned by the Government of India or government of any state and the salary and remuneration is paid by such body.
  3. Any officeholder which is of capable of exercising the executive powers delegated by the government, including disbursement of funds, allotment of lands, issuing of licenses and permits or making of public appointment or granting of such other favors of substantial nature or legislative ,judicial, or quasi-judicial functions.


Conclusion
The best course appears to be the parliament is competent to enact a law to remove a disqualification with retrospective effect and this is settled in the case of Kantha kathuriya vs Manakchand Surana [9] . In the light of above mentioned discussion it becomes clear that the true test to be applied to determine whether a person holds an office of profit or not depends upon the extent of control the government exercises, whether the salary paid out of government has power to appoint or dismiss, whether the salary paid out of government fund or not, the salary which the person entitled to get must not be compensatory in nature to bear out day to day expenses but it must confer some pecuniary gain to the person. One thing which must be bear in mind the objective of the disqualification is to avoid the conflict between the functionaries of state.

In the present scenario concept of separation concept of separation of power becomes too thin because of the government function becomes so wide that it is not possible for the government to work in its limited power which is given to the government. And in these conditions it must be seen that there must not be any conflict between the duties discharged by the person in their legislative and executive capacity . Though our constitution have constitution have provisions that the legislature could exempt any post to come under the preview of ‘ office of profit’ by making laws with retrospective effect. By giving such a wide power to legislature it has constricted the scope of art.102 (1) a and art. 191 ( 1) a.

It becomes the usual practice of the government which is in majority to exempts the post on which the party members are appointed by amending laws. Conclusively as a member of the constituent assembly. I affirm the provision of the office of provision under art. 102 (1) (a) to strengthen the provision of democracy in India.

End-Notes:

  1. Dr. Parnajape, N.V, INDIAN LEGAL AND CONSTITUTIONAL HISTORY ( CLA, Reprient Edition, 2002) p.278
  2. Us Constitution of Bill of Right
  3. Section 44, the constitution of Australia
  4. Ravanna subanna v. G.S. Kageerappa AIR 1954 653
  5. Chandrasekhar Raju v vyrichela Pradeep Kumar, AIR 1992 SC 1959
  6. CAD Volume 9 at page 316
  7. CAD Volume 9 at page 328
  8. Report of the joint committee on office of profit 14th Lok sabha
  9. Kantha kathuriya vs Manak chandra surana ( 1969) 3 SCC 268

Written by:

  1. Rajesh Ranjan ( IIIrd Semester student at National law university jodhpur, He is an avid reader of the constitution and an important contributor on the constitutional law issues on different platforms)
  2. Naina Bhargava ( IIIrd Semester student at Miranda House, University of Delhi, She is constantly working for women safety and issues in her campus and have an important understanding of the law.  

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