What is Office of Profit?
Articles of 102(1)a and 191(1) of Indian constitution mentions disqualifications on the basis of Office of Profit but it is neither defined in the constitution nor under Representation of People’s Act.
Supreme Court in Pradyut Bordoloi vs Swapan Roy (2001) case, the Supreme Court 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;
- What are the functions of the holder and does he perform them for the government; and
- Does the government exercise any control over the performance of those functions.
Further in Jaya Bacchan v. Union of India case SC defined it as “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.
Article 102 (1) a: Disqualifications for membership.
A person shall be disqualified as a Member of Parliament 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.
Article 191 (1) (a) Disqualification of members for the members of state assemblies for holding Office of Profit and other disqualifications mentioned above.
Section 15(1)(a) of Government of National Capital territory of Delhi (GNCTD) act, 1991,
A person shall be disqualified for being chosen as, and for being, a member of the legislative assembly 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.
Joint Committee on offices of profit
- It consists of 15 members drawn from both the houses of Parliament with ten members from Lok Sabha and five members from Rajya Sabha.
- It examines the composition and character of the Committees appointed by the Central and State Governments and recommends what offices should or should not disqualify a person for being, a member of either House of Parliament.
- It has defined Office of Profit as:
Whether the holder draws any remuneration, like sitting fee, honorarium, salary, etc. other than Compensatory allowance.
- Whether the body in which an office is held, exercises executive, legislative or judicial powers or confers powers of disbursement of funds, allotments of lands, issue of licences, etc., or gives powers of appointment, grant of scholarship, etc.
- Whether the body in which an office is held wields influence or power by way of patronage.