Jharkhand in turmoil: What does the law say on holding an office of profit?

Jharkhand in turmoil: What does the law say on holding an office of profit?

Subject : Polity

Section: Parliament

Context: Jharkhand is in a state of turmoil after reports suggested that Chief Minister Hemant Soren may be sacked by the Election Commission of India (ECI) in the office-for-profit case.

• The ECI has reportedly sent its recommendations to Governor Ramesh Bais on the allegations against Soren.

Concept:

What is an ‘office of profit’?

• An office of profit is a position that brings any financial gain, advantage, or benefit to the officeholder.
• In the Jharkhand case, the mining lease had the capacity to bring financial gain to Soren.
• The office of profit law simply seeks to enforce a basic feature of the Constitution-The principle of separation of power between the legislature and the executive.

Constitutional provisions on ‘Office of Profit’?

• The law does not clearly define what constitutes an office of profit but the definition has evolved over the years with interpretations made in various court judgments.
• Under Article 102 (1) and Article 191 (1) of the Constitution, an MP or an MLA (or an MLC) is barred from holding any office of profit under the central or state government.
• The articles 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”.
• Parliament has also enacted the Parliament (Prevention of Disqualification) Act, 1959, which has been amended several times to expand the exempted list.
• Also, the state legislature can declare that a particular office of profit will not disqualify its holder from its membership
• A foreigner holding any office of profit or trust under the state cannot accept any title from any foreign state without the consent of the president.
• No citizen or foreigner holding any office of profit or trust under the State is to accept any present, emolument or office from or under any foreign State without the consent of the president.
• Presidential Candidate should not hold any office of profit under the Union government or any state government or any local authority or any other public authority. A sitting President or Vice-President of the Union, the Governor of any state and a minister of the Union or any state is not deemed to hold any office of profit and hence qualified as a presidential candidate.
• Vice-Presidential candidate should not hold any office of profit under the Union government or any state government or any local authority or any other public authority
• CONDITIONS OF GOVERNOR’S OFFICE– He should not hold any other office of profit.

Factors which are considered in this determination of Office of Profit based on Supreme Court judgments:

• Whether the government is the appointing authority
• Whether the government has the power to terminate the appointment
• Whether the government determines the remuneration
• What is the source of remuneration
• Power that comes with the position

Related Judgments of the Supreme Court

• CM will be disqualified under Section 9A of the Representation of Peoples’ Act, 1951 in view of three judgments of the apex court.
• Under that section, a contract has to be made for the supply of goods or the execution of any work undertaken by the government.
• Under the RoPA 1951,He must not be a director or managing agent nor hold an office of profit in a corporation in which the government has at least 25 per cent share
• A constitution bench of the Supreme Court in 1964 in the case of CVK Rao vs DentuBhaskara Rao has held that a mining lease does not amount to a contract of supply of goods.
• In 2001, a three-judge bench of the apex court in the case of Kartar Singh Bhadana vs Hari Singh Nalwa & others also made it clear that a mining lease does not amount to execution of a work undertaken by the government.
• Even if the CM is disqualified by any authority, he can challenge it in the high court and in that case and as per a Supreme Court order, the adjudication has to be completed within four months.
• Under Article 164 (4), one person can be a minister for six months without being a member.
• The Supreme Court in its seminal decision in the Jaya Bachchan v. Union of India case developed the doctrine of ‘potential effect of an office’ to ascertain the nature of office, If the “pecuniary gain” is “receivable” in connection with the office then it becomes an office of profit, irrespective of whether such pecuniary gain is actually received or not.