Office of Profit

Jharkhand The CM’s seat remains uncertain, as the Election Commission (EC) is said to have informed the Governor of its decision in an office-of-profit complaint filed against him.

Why is this in the news?

  • The CM could be barred from entering into a government contract under Section 9A of the Representation of the People Act, 1951.
  • The Office of Profit is not defined in the Indian Constitution. It has only been mentioned in Articles 102 (1) and 191. (1).

What exactly is a ‘Office of Profit’?

  • In India, a “Office of Profit” refers to a situation in which a person holds a government position that provides them with financial gain or other benefits while also holding an elected or other public office.
  • The idea behind this concept is to avoid any potential conflicts of interest and to ensure that elected representatives do not hold positions that could jeopardise their independence and impartiality.

In the Indian context

  • As members of the legislature, MPs and MLAs hold the government accountable for its actions.
  • The essence of disqualification is that if legislators hold a ‘profitable office’ under the government, they may be susceptible to government influence and may not carry out their constitutional mandate fairly.
  • The intention is that there should be no conflict between an elected member’s duties and interests.
  • As a result, the office of profit law simply seeks to enforce a fundamental principle of the Constitution—the principle of separation of powers between the legislature and the executive.

What is the definition of the term?

  • Currently, the Parliament (Prevention of Disqualification) Act of 1959 prohibits an MP, MLA, or MLC from holding any profit-making office under the federal or state governments unless exempted.
  • However, it does not define what constitutes a profit-making office.
  • Legislators may face disqualification if they hold such positions that provide them with financial or other benefits.
  • An MP or an MLA (or an MLC) is prohibited from holding any profit-making office under the Central or State governments under Articles 102 (1) and 191 (1) of the Constitution.

An undefined term

  • According to law ministry officials, defining an office of profit could result in a number of cases being filed with the Election Commission and the courts.
  • Furthermore, changing the definition will necessitate amending several provisions of the Constitution, including Articles 102 (1) (a) and 109 (1) (a), which deal with the office of profit.
  • It will have ramifications for all other sections of the Constitution.

Factors that make up a ‘office of profit’

  • The 1959 law does not clearly define what constitutes a profit-making office, but the definition has evolved over time as a result of interpretations made in various court decisions.
  • An office of profit has been defined as a position that provides the office-holder with financial gain, advantage, or benefit. The amount of such profit is insignificant.
  • The Supreme Court ruled in 1964 that the test for determining whether a person holds a profit-making office is the test of appointment.

What exactly is the ‘appointment test’?

  • Several factors are taken into account in this determination, including whether the government is the appointing authority, whether the government has the authority to terminate the appointment, whether the government determines the remuneration, what the source of remuneration is, and the power that comes with the position. 
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