On 25 August 2022, the Election Commission of India sent a notice to the Governor of Jharkhand recommending to disqualify chief minister Hemant Soren on the ground of holding an office of profit while in office. The moment this news sparked, the question arose in many minds about what office of profit means.
In the brief law article, we explain the meaning of office of profit and tell you more about it using case decisions by the Indian Supreme Court.
The expression ‘office of profit‘ can be traced from the English Settlement Law of 1701 (read on Wikipedia). The law states that a person receiving a pension from the crown, or holding a post under the king, is not eligible to represent the commonwealth in the House of Commons. This law aimed to prevent the misuse of power by the royal house in the administrative works of the government.
There is no definition of the term office of profit in the Indian Constitution.
An office of profit is an office from which the holder derives or is likely to derive some benefit. In Indian Constitution, the term office of profit is used as a ground for disqualifying MPs or MLAs. In other words, it is a position in the government which cannot be held by an MLA or an MP.
Tests Determining Office of Profit
The courts have laid out certain tests to determine which office is the office of profit.
Supreme Court in Ashok Kumar Bhattacharya vs Ajoy Biswas (1985) explained the rationale behind the disqualification based on ‘office of profit.’ According to the court, there should be no conflict between an elected member’s duties and interests, and the elected member must carry out his duties without fear or favour from the government. The purpose of this provision is to ensure that there will not be people in Parliament susceptible to government influence.
In Jaya Bachchan vs Union of India (2006), the Supreme Court held that an office of profit has the potential to yield profit or monetary gain. It is not relevant who receives the benefit. However, there will be no disqualification if the office is not government-sponsored.
In Biharilal Dobray vs Roshan Lal Dobray, AIR 1984 SC, it was held that to determine whether a person holds a government position, the following tests would need to be applied:
- Is it a government appointment?
- Is the government in a position to remove or dismiss the holder of this office?
- Does the government pay the salary?
- Does the holder of the post perform government functions?
- Does the government control the duties and functions of the holder?
If a person falls in any of the above grounds, then his office will be considered a government office.
Provisions of Office of Profit Under the Constitution of India
As per Article 102(1)(a) and Article 191 of the Constitution of India, the member of the Parliament or state legislature is prohibited from holding a post that would allow them to gain any advantages or benefits.
Parliament, therefore, enacted the Parliament (Prevention of Disqualification) Act, 1959. In this law, the Parliament lists various categories of offices for which the holders are not disqualified from membership.
As per Articles 103 and 192 of the Indian Constitution, how a member of any House of Parliament or legislature may be disqualified is to be decided by the President or Governor, as the case may be, whose decision shall be final. Before deciding on any such question, the President shall consult the Election Commission and act accordingly.
Parliament has also constituted a joint committee on office of profit. The committee consists of ten members from Lok Sabha and five from Rajya Sabha. The committee’s function is to keep an eye on the composition and character of various government-appointed bodies and report to the House when someone should be disqualified from membership of that body. The role of the committee is only advisory.