Office of Profit Issue – All You Need to Know

There have been several cases of the President disqualifying MLAs or the court judgments striking down the appointments of MLAs as parliamentary secretaries. In this context, we’ll discuss the law on holding an ‘office of profit’ and the associated issues.

What is the concept of ‘Office of Profit’?

The concept of the Office of Profit is borrowed from the United Kingdom.

As members of the legislature, MPs and MLAs hold the government/executive accountable for its work, and if legislators hold an ‘office of profit’ under the government, they might be susceptible to government influence, and may not perform their constitutional functions fairly.

The objective is that there should be no conflict between the duties and interests of an elected member.

Therefore, the office of profit law simply aims at enforcing a basic feature of the Constitution, that is, the principle of separation of power between the legislature and the executive.

What does the constitution/RPA say about ‘Office of Profit’?

Article 102 (1) and Article 191 (1) of the Constitution prohibits an MP or an MLA (or an MLC) from holding any office of profit under the central or state government.

The articles state 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”.

Under section 9 (A) of the Representation of People’s Act, elected representatives, MLAs or MPs being, public servants, cannot hold an office of profit.

What constitutes an ‘office of profit’?

Neither constitution nor any law including RPA clearly defines what constitutes an office of profit however the definition has evolved over the years with interpretations made in several court judgments.

An office of profit has been interpreted to be a position or posting that provides the office-holder certain financial gain, or advantage, or benefit. The amount of such profit is immaterial (irrelevant).

In Swapan Roy vs Pradyut Bordoloi case (2001), SC has laid down certain parameters to check whether an office constitutes an office of profit or not as follows:

1. whether the government is the appointing authority,
2. whether the government has the power to terminate the appointment,
3. whether the government determines the remuneration,
4. what is the source of remuneration, and
5. the power that comes with the position.

Who can disqualify persons holding Office of Profit?

• The constitutional procedure is that if there is any petition related to an office of profit, it goes straight to the President.
• The President then checks Article 102 and 191 of the constitution and Section 15 of the National Capital Territory of Delhi Act 1991 and takes the Election Commission’s opinion.
• After the presidential sign and seal is placed on the EC’s recommendation, the persons holding Office of Profit will stand disqualified.

Who are exempted from disqualification for holding the office of profit?

Provisions of Articles 102 and 191 also protect a legislator holding a government position if the office in question has been made immune to disqualification by law = Parliament and state governments have enacted laws to provide an exemption to certain posts from disqualification as follows.

• Parliament has enacted the Parliament (Prevention of Disqualification) Act, 1959, which has been amended several times to expand the exempted list.
• In the recent past, many state legislatures have enacted laws excluding some offices from the purview of office of profit.

There is no limit on how many offices can be exempted from the purview of the law which led to abuse by several state government as follows.

• It was reported in 2015 that all 60 MLAs of the Nagaland Assembly had joined the ruling alliance. The Nagaland Chief Minister appointed 26 legislators as parliamentary secretaries in July 2017.
• Goa, an assembly of 40 MLAs, exempted more than 50 offices by means of an ordinance issued in June last year. Puducherry, an assembly of 33 MLAs, exempted more than 60 offices by passing an amendment bill in 2009.
• In Delhi, the 21 parliamentary secretaries added to the seven ministerial posts would constitute 40% of the 70-member legislature.
• In all, 20 states have similar provisions.

Thus hundreds of posts under government of India and state governments over the years have been exempted, such as

• Leader of opposition,
• Chief Whip,
• Chairman of the Planning Commission, Minorities’ commission and Women’s commission.
• In 2006, as many as 55 new categories of offices were exempted such as Dalit Sena, Maulana Azad Education Foundation, Dr. Ambedkar Foundation, Waqf Boards, Temple Trusts, several other corporations, commissions, and boards.
• In 2013, SC and ST Commissions were similarly exempted.

This raises a serious concern that if a large number of legislators are appointed to such offices, their role in inspecting the work of the government may be affected. Thus, this could violate the spirit of Articles 102 and 191 of the Constitution.

What is the debate around making appointments to the office of parliamentary secretaries?

The office of parliamentary secretaries despite being exempted from the purview of the office of profit law has been struck down by courts in many states.

There are 2 interesting questions regarding this:

• Why has the appointment as a parliamentary secretary been struck down while other offices are allowed to be exempt from the purview of the law?
• If legislators can be accommodated in positions other than ‘parliamentary secretary’, why do state governments keep on appointing legislators as parliamentary secretaries rather than appointing them to other offices?

These questions have been answered in a Calcutta High Court judgment in 2015 which declared that, as the position provides the rank of a junior minister or similar to the legislator = the appointment of MLAs as parliamentary secretaries was an attempt by state governments to bypass the constitutional ceiling of 15% on the number of ministers.

Note: Article 72 (Parliament) & 164 (State Legislature) of the Constitution provides a ceiling that the number of ministers including the Prime Minister/Chief Minister should not be more than 15% of the total number of members of the Lok Sabha/legislative assembly (10% in the case of Delhi which is a union territory with legislature).

In 2009, the Bombay High Court also declared that appointing parliamentary secretaries of the rank and status of a Cabinet Minister is in violation of Article 164 (1A) of the Constitution.

What are the arguments in favour of disqualifications of Parliamentary Secretaries?

Against separation of powers: By having an Office of Profit a legislator cannot perform his functions independent of the executive of which he or she becomes a part.

Violation of constitutional provisions: Office of Parliamentary secretaries or other such office has been used by state governments to circumvent the constitutional ceiling of 15% (10% in case of Delhi) on the number of ministers they can appoint.

Misused to secure political support: by providing alternative posts to ministerial positions with equal power in the era of coalition politics.

The threat to public interest/National Security: Unlike ministers, the Parliamentary secretaries are not administered under the Oath of Secrecy yet they can access such information which may threaten the public interest, breed corruption or may even threaten national security.

Other issues: including the arbitrary exercise of legislative power through amending laws, drain of public money because of the oversized cabinet, political opportunism via arbitrary use of amendments, etc.

What is the way forward?

• Amend RPA: As the office of profit issue brings the question of disqualification of legislators = the Representation of people’s act should be duly amended to determine such cases objectively. It will remove the need for multiple laws to deal with disqualification separately as is being done in many states.
• The parliamentary joint committee on the office of profit has also suggested additional office of profit determining parameters such as remuneration, executive, judicial or legislative powers, whether the office wields influence or power by way of patronage, etc.
• The2^nd Administrative Reforms Commission (ARC) has held that all offices involving executive decision making and control of public funds shall be treated as Office of Profit (OOP) and such offices should not be held by legislators.
• The 2^nd ARC has also recommended that all offices in purely advisory bodies where the experience, insights, and expertise of a legislator would serve as inputs in governmental policy, shall not be treated as OOP, irrespective of the remuneration and perks associated with it.
• The National Commission to Review the Working of the Constitution suggested that the Constitution should be suitably amended to give powers to the Election Commission for determining which offices should be deemed to be offices of profit and which are not.
• In England, at the time of the creation of an office, it is determined and mentioned whether it constitutes an office of profit or not. India can follow such a practice so that the complexities of disqualification and judicial intervention can be minimised.

Conclusion

The Central and State governments must respect the constitutional restrictions and should never uncheck the checks and balances which are enshrined in the constitution for the effective functioning of the Indian polity.