Office Of Profit: It's Time To Lay Down The Specifics

Rashmi Bagri

21 Nov 2021 6:18 AM GMT

  • Office Of Profit: Its Time To Lay Down The Specifics

    The doctrine of separation of powers, first discussed by Montesquieu in 1748 in his 'trias politica' is an important doctrine for many reasons. It keeps one organ from interfering in the workings of the other via checks and balances which is imperative for the efficient functioning of any government, let alone the largest democracy in the world. Office of Profit constitutes...

    The doctrine of separation of powers, first discussed by Montesquieu in 1748 in his 'trias politica' is an important doctrine for many reasons. It keeps one organ from interfering in the workings of the other via checks and balances which is imperative for the efficient functioning of any government, let alone the largest democracy in the world. Office of Profit constitutes an important aspect of separation of powers and is in its essence, a vital concept to inhibit powers of one organ of the government to influence the mechanisms of the other.

    The origin of the term Office of Profit can be attributed to the English Act of Settlement, 1701 which was enacted for the purpose of facilitating protestant succession to the throne and to strengthen workings of the Parliament via certain guarantees. This Act curbed crown prerogatives to prevent the unnecessary influence of the royal household on the Parliament and stated that "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." During India's colonization by the British, the concept became a part of India's legal dialogue via Morley Minto Reforms in 1909. However, while England moved ahead and substituted the generality in the concept of office of profit (which only spoke about disqualification of members if found holding an office under the king) with specifications about the particular offices which could lead to disqualification of members through the House of Commons Disqualification Act of 1975 (like judicial offices, membership of armed forces of the crown, memberships of commissions, boards, tribunals etc.), India has severely lagged behind to even define the scope of the term office of profit.

    Not only does office of profit only find a fleeting mention in the Constitution as a ground for disqualification of Members of Parliament under A.102 and Members of Legislative Assemblies under A.191, but the ambiguity surrounding the law also has not prevented its unhindered usage. In 2016, show cause notices were issued by Election Commission to several members of Delhi's Aam Aadmi Party on account of holding the office of profit. In 2018, 20 MLAs of Delhi's Aam Aadmi Party were recommended to be disqualified by the Election commission citing the office of profit as a reason. In 2020, a plea seeking disqualification of Rajya Sabha MP, YSR Congress Leader V Vijaisai Reddy on account of holding the post of special representative of Andhra Pradesh Government at Andhra Pradesh Bhawan, was filed with President Kovind, who then rejected it after unanimous inputs from Election Commission.

    Now, while the intent behind adding it as a ground for disqualification in the Constitution is clear - legislators should not feel obligated to the executive in any way, which could influence their decision-making process while they are discharging legislative functions, and to avoid any conflict b/w the duties and interests of a legislative member, why the need to define it was not felt is still not clear. Although this issue had been taken cognizance of as early as the 1950s and a committee under the chairmanship of Pt. Thakur Das Bhargava was constituted in 1954 which eventually led to the enactment of the Parliament (Prevention of Disqualification) Act, 1959, the Act itself only specifies which offices will be exempted from 'office of profit' (like office of leader of opposition, office of deputy chairman of the Planning Commission, Office of the Chairperson of minorities, so on and so forth under A.3) and fails to clearly and explicitly define what an office of profit is. So, we have to turn to Supreme Court judgments to get a coherent understanding of the subject.

    There are several Supreme Court and High Court judgments on the matter; like Kanta Kathuria v. Manak Chand Surana, where it was held that an MLA can only be disqualified for holding any office of profit if it can be proved that an office exists independent of the holder of the said office and then Divya Prakash v. Kultar Chand Rana & Another where Supreme Court held that the office must yield some profit by way of salary or must be capable of yielding some salary to the officeholder to be counted as an office of profit. But there are two landmark judgments where the apex court laid down a test to determine whether a person holds an office of profit or not in its ratio decindi. The test is given in Guru Gobind Basu v. Shankari Prasad Ghosal & Ors. and depends on several factors: like who is the appointing authority, is the appointing authority vested with the power to terminate the appointment, who is the authority that determines the remuneration, what is the source of that remuneration and what are the powers that come with holding a position like the one in question. Then, in Pradyut Bordoloi v. Swapan Roy, Supreme Court again clarified the law and laid down four broad principles for determining whether an office attracts constitutional disqualification. First: Whether the government exercises control over appointment, removal, and performance of the functions of the office. Second: whether the office has any remuneration attached to it, Third: whether the body in which the office is held has certain specific powers like releasing money, allotment of land, granting licenses, etc., and fourth: whether the office enables the holder to influence by way of patronage. Another significant judgment on the matter, came in the case of Jaya Bachchan v. Union of India where the court said that, "payment of honorarium, in addition to daily allowances like compensatory allowances, rent-free accommodation, and chauffeur-driven car at the state expense, are clearly in the nature of remuneration and a source of pecuniary gain and hence constitute profit."

    While Supreme Court judgments have provided the much-needed transparency on the subject, there is still a dire need for the Centre to lay down the law on this matter. But the Central government, in 2020 declared that it's "dangerous" to lay down the definition for office of profit and offered vague reasons for the same, like defining the office of profit could lead to piling up of cases with the ECI and the courts and that defining the law would entail making amendments to various corresponding provisions in Constitution and other relevant acts.

    This stance is alarming for several reasons: not defining the law on the office of profit leaves scope for executive influence on the legislature that affects the working of the government. This can be further elaborated through the Supreme Court's judgment in Ashok Kumar Bhattacharya v. Ajoy Biswas & Ors., where it stated that, "If a person is holding an office which brings him remuneration and the government has a voice in his continuance in that office, there is every likelihood of such person succumbing to the wishes of the government." Furthermore, many state legislatures are enacting more and more legislations to exclude certain offices from the definition of office of profit. Even the Central Act on the subject, Parliament (Prevention of Disqualification) Act, 1959 has gone through several amendments to expand the exempted list, the latest amendment was done in 2013 which exempted the Chairperson of the National Commission for Scheduled castes and chairperson of National Commission of scheduled tribes from incurring any disqualification by virtue of being an MP.

    Another issue is the lack of any bar on the number of offices that may be excluded from this Act's purview. States like Goa, Puducherry, and Delhi, all have exempted several offices to avoid the scrutiny under the office of profit debate. Another additional concern is the appointment of legislators as parliamentary secretaries which has been struck down by courts in several states even though this office is exempted from the office of profit list. The reason for this has been succinctly pointed out by the Election Commission of India, "The office of Parliamentary secretary allowed the incumbents to participate in high-level meetings of the government and even chair those meetings in some cases. These Parliamentary secretaries had full-time access to the Ministers and Ministerial files and notings and this access enabled them to wield influence and power by way of patronage."

    In light of the above-cited concerns, it becomes indispensable to define and lay down the office of profit law at the earliest to maintain the sanctity of the Constitution and to increase the efficacy of governance and give a sense of assurance in the democratic workings to the ordinary citizens.

    Views are personal

    The author is an Independent Advocate and Writer, She Graduated From NALSAR Hyderabad in 2016

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