This Is Your Brain on "Office Of Profit"

What is an ‘office of profit’?

If an MLA or an MP holds a government office and receives benefits from it, then that office is termed as an “office of profit”.

A person will be disqualified if he holds any office of profit under the central or state government, other than an office declared not to disqualify its holder by a law passed by Parliament or state legislature.

What is the underlying principle for including ‘office of profit’ as a criterion for disqualification?

Makers of the Constitution wanted that legislators should not feel obligated to the Executive in any way, which could influence them while discharging legislative functions. In other words, an MP or MLA should be free to carry out her duties without any kind of governmental pressure. The intent is that there should be no conflict between the duties and interests of an elected member. 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.

Reason for controversies:

The expression “office of profit” has not been defined in the Constitution or in the Representation of the People Act, 1951. It is for the courts to explain the significance and meaning of this concept. Over the years, courts have decided this issue in the context of specific factual situations. But, articles 102 (1) and 191(1) which give effect to the concept of office of profit prescribe restrictions at the central and state level on lawmakers accepting government positions.

Role of Judiciary in defining the ‘office of profit:

The Supreme Court in Pradyut Bordoloi vs Swapan Roy (2001) outlined the four broad principles for determining whether an office attracts constitutional disqualification.

  1. First, whether the government exercises control over appointment, removal and performance of the functions of the office
  2. Second, whether the office has any remuneration attached to it
  3. Third, whether the body in which the office is held has government powers (releasing money, allotment of land, granting licenses etc.).
  4. Fourth, whether the office enables the holder to influence by way of patronage.

Why in News?

President Ram Nath Kovind has rejected a plea seeking disqualification of YSR Congress leader V Vijaisai Reddy as a Rajya Sabha member on the grounds of holding ‘office of profit’ as special representative of the Andhra Pradesh government in the national capital. The order of the president is based on the Election Commission’s unanimous opinion given in June.

What’s the issue?

A petition was filed seeking disqualification of Vijaysai Reddy as a member of the Upper House of Parliament alleging that the post of special representative of the Andhra Pradesh government at the Andhra Pradesh Bhawan being held by the YSR Congress Party MP  was an office of profit.

However, the EC had held that since no pecuniary gain was derived from the said office and Reddy was not entitled to any other perks or remuneration other than enjoying the status of a ‘state guest’ during his travels to Andhra Pradesh in connection with the performance of his duties as special representative, he did not incur disqualification under Article 102(1) (a) of the Constitution of India”.

What are the basic criteria to disqualify an MP or MLA?

Basic disqualification criteria for an MP are laid down in Article 102 of the Constitution, and for an MLA in Article 191.

They can be disqualified for: a) Holding an office of profit under Government of India or state government; b) Being of unsound mind; c) Being an undischarged insolvent; d) Not being an Indian citizen or for acquiring citizenship of another country.