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Office Of Profit: Axe Falls on 20 AAP MLAs

New Delhi: The term Office of Profit is widely used in the Parliament as it is one of the disqualifications for being a Member of Parliament or a Member of State Legislature. Though a very commonly used term it has not been defined either under the Constitution of India or under the Representative of People’s Act, 1951, but under the provisions of both these statutes it is a ground for disqualification of an MLA or MP.

The term office of profit means holding an office either under the State Government or under the Central Government, from which some income or some profit is earned by the holder of office. Test for this is the appointing and removing power of the Government, or paying for holding the office and the type of Control which the Government can exercise on the holder of office of profit.

 The origin of this term can be traced back to the English act of Settlement 1701 and the Act of Union 1707. Under the provisions of these acts, a person is disqualified from being a Member of the Commons if he holds any office of profit under the king. Similar provisions were incorporated in the Constitution Of India under Article 102 (1)(a) and Article 191(1)(a) which explains that a Member of Parliament or Member of State Legislature (as the case may be) would be disqualified from being chosen or from being said Member if he holds an office of profit either under the State Government or under the Central Government, except for those offices which are exempted by the Parliament or the State Legislature (as the case may be) from time to time in accordance with the law for time being in force. An explanation to these articles exempts Ministers either under the Union or States from the scope of holders of office of profit. The qualifications prescribed for the President (Article 58(2)) and the Vice President (article 66(4)) also provides the similar provisions relating to the Office of Profit.  

The fundamental principle behind including the condition of office of profit is to ensure the credibility of the Member. If a person is holding an office from which he is earning some remuneration or some profits, he might be more focused towards this office than from discharging his duties for which he is originally elected. Also this would increase the independence of the Members of Parliament as they would not be working under the executive or earning some profits from the executive. For the purpose of this disqualification, the profits may include any pecuniary gain.

In the case of Jaya Bachchan v. Union of India (2006) it was held by the apex Court, that if the holder of office of profit is entitled to any pecuniary gain in connection with his office, it becomes a disqualification even though the actual monetary gain was not received by him.

In the recent news, the term of office of profit again came to light because it became the reason for the disqualification of 20 AAP MLA’s after the recommendation of the Election Commission which was accepted by the President of India.

Taking into the account the probable reason for having the Office of Profit Clause as a disqualification for Member of Parliament and State Legislature, it is essential to have such a ground. It is true, if a person is holding a post or an office from which he is earning some profit or from which he has some monetary gain there are chances of his being dependent on the office and for that matter be under the instruction of his employer (Central Government or the State Government in this case) and would injure his seriousness or independence in working for the people who have elected him. 

(The writer is a budding lawyer)

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