Office of Profit Issue
This article deals with ‘Office of Profit Issue.’ This is part of our series on ‘Governance’ which is important pillar of GS-2 syllabus . For more articles , you can click here
What is Office of Profit ?
- According to Articles 102(1) a and 191 (1) ,
- Person shall be disqualified for being a MP or MLA if he holds any “office of profit” under the government of India, a state or a union territory other than an office protected by law.
- But term Office of Profit is neither defined in the constitution nor under Representation of People’s Act.
- Legislatures kept on expanding the list of exemptions from disqualification
- Supreme Court in Pradyut Bordoloi vs Swapan Roy (2001), outlined the following
questions for the test for office of Profit:
- Whether the government makes the appointment
- Whether the government has the right to remove or dismiss the holder
- Whether the government pays the remuneration (salary or honorarium)
- What are the functions of the holder and does he perform them for the government
Later : Not all but any one of above condition is sufficient to declare particular office as office of profit
|2004||Jaya Bacchan v. Union of India : In 2004, Jaya Bachan, Rajya Sabha MP from the Samajwadi Party, was appointed chairperson of the UP Film Development Council (UPFDC) but she wasn’t receiving any salary . The apex court held that it was an Office of Profit, and disqualified her from being a member of the Upper House arguing that “an office which is capable of yielding a profit or pecuniary gain.” thus it is not the actual ‘receipt’ of profit but the ‘potential’ for profit that is the deciding factor in an ‘office of profit’ case.|
|2006||In 2006, BJP MPs sought the disqualification of Congress president Sonia Gandhi from the membership of the Lower House for holding an Office of Profit. Sonia was then chairperson of the National Advisory Council (NAC). She resigned her Lok Sabha seat, recontested the election, and came back.|
- Concept originated in the House of Commons in England. King in his efforts to undermine the House of Commons, used to offer positions of executive nature with pecuniary benefits to its members and buy their loyalty. This practice kept the members out of the House most of the time . Hence, House of Commons passed a law prohibiting its members from accepting any office from the Crown
- In Modern times, Constitutional theory envisages that the elected legislature exercises oversight functions over government. Therefore, if the legislators are beholden to the executive, the legislature can no longer retain its independence and loses the ability to control the Council of Ministers
=> Hence, main issue is not of Pecuniary Benefits but weakening of Principle of Separation of Power.
Arguments against MPs/ MLAs holding Office of Profit
- Against Separation of Powers: legislator cannot exercise control over Executive of which he/she becomes a part.
- Circumventing Constitutional Provisions : Office of Parliamentary Secretaries or other offices are used by state governments to circumvent the constitutional ceiling of 15 % (10% in case of Delhi) on the number of ministers they can appoint.
- Threat to Public Interest and National Security : Unlike ministers, the Parliamentary Secretaries are not administered under the Oath of Secrecy (Art 239 AA(4)), yet may be privy to such information which may threaten public interest or threaten national security.
- Recommended by Various Committees : Various committees have spoken against it including 2nd ARC & V K Krishna Menon Committee
- Used for Political Reasons without any benefit in governance : Chairmanships of Corporations, Parliamentary Secretary-ships of various ministries, and other offices of profit are often sops to legislators to satisfy their aspirations for rank, status and privilege and a way of buying peace for the government.
Side Topic : MPLADS
- In 1993, the Central government started MPLADS, through which legislators can earmark a certain amount of public funds for projects in their constituency. The concept has been adopted by many states as MLALADS.
- Argument was that elected MPs and MLAs know the needs of their electorate well and can be effective in allocation of resources.
Issue :Role of Legislators is to allocate the entire Central and State budgets, and to monitor the spending. They are expected to use their knowledge of ground-level issues in this allocation, and see that the funds are spent properly. By providing each of them a specific amount to spend on projects, their oversight role is weakened.
Suggestion of 2nd ARC : Schemes such as MPLADS and MLALADS should be abolished.
Current Issue : Parliamentary Secretary Cases
|2016||– Article 239AA of the Constitution limits the number of Ministers in Delhi Government to 10% of the strength of Delhi Legislative Assembly (which is seven persons). |
– They appointed 21 more MLAs as parliamentary secretaries — which will make 40 per cent of the membership have some type of an executive role.
– Delhi Members of Legislative Assembly (Removal of Disqualification) Act, 1997 was amended with retrospective effect to exempt the post of parliamentary secretary from the definition of the “office of profit”. However, Lt. Governor didn’t give assent to the amendment bill
|2017||Punjab and Haryana high court quashed the appointments of four Haryana Chief Parliamentary Secretaries (CPSs). |
|2018||MLA’s in Delhi were disqualified by President for holding Office of profit.|
Who are Parliamentary Secretary ?
- Parliamentary Secretary is a member of the parliament in the Westminster system who assists a more senior minister with his or her duties. Originally, the post was used as a training ground for future ministers.
- Post has been created in several states now and then like Punjab, Haryana, Delhi and Rajasthan etc and by Act of State Legislature, they are declared to be out of disqualification
Main issues with this post ?
- All the issues discussed in Office of Profit debate like impinging Separation of Power, Conflict of Interest etc are relevant here as well.
Points given in Support
- Constitution allows a legislature to pass a law to grant exemption to any office of profit holder. In past, states and Parliament have done this as well. The Supreme Court in UC Raman case has upheld this.