Office of Profit Case

Office of Profit Case

Subject: Polity

Context:

• The Election Commission on Monday told Jharkhand Chief Minister Hemant Soren that the state’s Governor, Ramesh Bais, had not sought a second opinion from the poll panel in the office of profit charge against him.

What is office of profit:

• The office of profit is 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 of Office of Profit 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.

What constitute office of profit:

• The constitution does not explicitly define the phrase.
• However, it has evolved over decades with subsequent judicial pronouncements.
• In 1964, the Supreme Court ruled that the test for determining whether a person holds an office of profit is the test of appointment.
• The 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.

What are the  Constitutional provisions regarding ‘Office of Profit’:

• Article 102 (1): A person shall be disqualified for being chosen as a member of either House of Parliament 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.
• 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.
• Provisions of Articles 102(1)(e) and 191(1)(e) also protect a legislator occupying a government position if the office in question has been made immune to disqualification by law.

What is the statutory provisions related to Office of Profit:

• Parliament has also enacted the Parliament (Prevention of Disqualification) Act, 1959.
• Clause 9A of the RPA Act 1951 states 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.
• Certain state legislatures have enacted laws in their respective states exempting certain offices from the purview of office of profit.

What are certain judgments of the Supreme Court related to office of profit:

• 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.