Election Commission opinion regarding Disqualification

Election Commission opinion regarding Disqualification

Subject : Polity

Context: The Election commission has turned down the request of the Jharkhand Chief Minister to disclose its opinion shared with the state Governor in the disqualification matter against him.

Concept :

• EC said any communication between the EC and a Governor is “privileged” under Article 192 (2) of the Constitution and revealing it before an order is passed by the Governor would amount to a “breach of constitutional propriety”.
• The EC also said that any document pertaining to a reference received from the Governor under Article 192(2) is also exempt from disclosure under the RTI Act unless a final order is passed by the Governor.
• On August 25, the poll panel, in its opinion sent to Governor, had recommended Soren’s disqualification under Section 9A of the Representation of the People Act, 1951, for allegedly misusing his position to allot a stone-mining lease to himself last year.
• Section 9A prohibits elected representatives from entering into any contract with the government for “supply of goods” or “execution of any works undertaken” by it.

Article 191 of Indian Constitution

Decision on questions as to disqualifications of members.—

• Article 191 (1): A person shall be disqualified for being chosen as, and for being, a member of the Legislative Assembly or Legislative Council of a State if he holds any office of profit under the Government of India or the Government of any State specified in the First Schedule, other than an office declared by the Legislature of the State by law not to disqualify its holder.
• If any question arises as to whether a member of a House of the Legislature of a State has become subject to any of the disqualifications mentioned in clause (1) of article 191, the question shall be referred for the decision of the Governor and his decision shall be final.
• Provisions of Article 191(1)(e) also protect a legislator occupying a government position if the office in question has been made immune to disqualification by law.
• Article 191 (2): Before giving any decision on any such question, the Governor shall obtain the opinion of the Election Commission and shall act according to such opinion.

Concept of ‘Office of Profit’

• The office of profit has been interpreted as a position that brings to the office-holder some financial gain, remuneration or benefit. The amount of such profit is immaterial.
• The concept forbids members of the legislature from accepting an office of profit under the executive so as to maintain the autonomy of the legislature and preserve the separation of powers.
• The intent is to avoid the conflict of interests between the duties and interests of an elected member.

What constitutes an ‘Office of Profit’?

• The constitution does not explicitly define the phrase.
• However, it has evolved over decades with subsequent judicial pronouncements.
• Supreme Court has listed certain factors while considering ‘office of profit’:
• 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
• the power that comes with the position.

Statutory provisions related to ‘Office of Profit’

• Union law: Parliament has also enacted the Parliament (Prevention of Disqualification) Act, 1959, which has been amended several times to expand the exempted list.
• RPA Act, 1951: Clause 9A of the Act says that a person shall be disqualified if there is a contract involving him in the course of his trade or business with the appropriate Government for the supply of goods to or for the execution of any works undertaken by that Government.
• State laws: Certain state legislatures have enacted laws in their respective states exempting certain offices from the purview of office of profit.