OFFICE OF PROFIT

OFFICE OF PROFIT 

Introduction

1. Art 102; Disqualification for MPs and MLAs
1. First ground is office of profit
2. Logic is separation of power or avoiding conflict of interest
1. To avoid executive offering parliamentarians lucrative offers so that they independently carry out their function of testing the accountability of executive
2. Also not possible for same person to be present at different place at same time, parliamentarian should give the first priority to parliament, hence they are given certain priviledges like immunity from arrest before or after 40 days of session
3. Problem in India is that executive are appointing parliamentarians but they are not getting disqualified
1. Since 91st amendment act limited the no. of ministers, it has become a way to bypass the amendment by giving parliamentary secretary posts which are not technically ministerial posts
2. There is lot of arbitrariness. parliamentary secretary of Delhi from AAP have been disqualified but not of other states
4. Disqualification is decided by president who shall act according to advice of ECI
1. ECI is also not completely independent
5. Root cause of problem
1. Constitution doesn't define office of profit
2. Constitution exempts certain posts like ministerial posts
1. In India ministers are chosen among MPs
6. Existing law
1. Pt Thakur das Committee repealed earlier laws (1950,1951,1953 Act)
1. Gave new Act : Prevention from disqualification act 1959
1. If any office gives compensatory allowance, it will not be OoP
2. Mentions no. of offices which are exempted
2. Impact
1. Created scope of judicial intervention
2. 1959 Act has been continuously amended in 1993, 2000, 2006, 2013 and more posts are brought under act
3. Unique problem
1. Govt exempt the office with retrospective effect
2. Almost every office is exempted
4. Solution
1. Bring comprehensive law and should not have implementation with retrospective effect
2. Do away with the provision
1. Disqualification makes sense only in presidential system
2. Art 1(6) strictly prohibits Congress members from accepting any inducements
3. India follows parliamentary system, hence useless
1. Executive also controls the legislature
2. Also members of party can't vote against party whip due to anti-defection law, so they won't vote against leader of their own parties
2. Situation in Britain
1. Practically doesn't exist (disqualification)
2. Historic reason to introduce it in Britain
3. Tussle between parliamentarians and king
4. King used to give inducement to MPs so it was introduced
7. Since law is inadequate, It is determined by judiciary, what comes in OoP
8. 4 principles (ashok kumar Bhattacharya vs Ajoy Biswas 1985)
1. There has to be office
2. It should have profit
3. Should be under govt
4. Person should have held office
5. Office is not exempted by parliament
9. Judiciary will examine in case to case basis, won't use pedantic approach
10. Shatru Charla Chandrashekhar Raju vs Vyricharla pradeep Kumar Dev 1992
1. Judiciary will whether appointing authority is govt
2. Whether govt has power to terminate
3. Whether govt determines remuneration
4. Whether source of remunerations public purse
5. Whether govt controls the office wrt the manner in which duties of the office are to be performed
6. Whether office brings person under influence of govt by patronage
7. All factors need not exist simultaneously
11. Other judgements
1. Jaya bachhan
1. Whether person actually obtained compensation does not matter
2. Kantha kathuria case
3. Shibu Soren case
4. Divya Prakash case
1. Even when office is honorary, it can be office of profit
12. Parliament has setup joint committee
1. Remuneration is more than compensatory allowance
2. Brings person under influence and patronage