Polity

KEY POINTS

·        Basic disqualification criteria for an MP are laid down in Article 102 of the Constitution, and for an MLA in Article 191.

·        Under this, one of the criteria for disqualification is holding an office of profit under government of India or state government.

What is an ‘office of profit’?

·        The word ‘office’ has not been defined in the Constitution or the Representation of the People Act of 1951.

·        But different courts have interpreted it to mean a position with certain duties that are more or less of public character.

·        If an MLA or an MP holds a government office and receives benefits from it, then that office is termed as an "office of profit".

·        A person will be disqualified if he holds an office of profit under the central or state government, other than an office declared not to disqualify its holder by a law passed by Parliament or state legislature.

How could it be decided?

·        A legislator cannot be disqualified from either the Parliament or state Assembly for holding any office.

·        It can be done for holding –

a)     An office

b)     An office of profit

c)      An office under the union or state government

d)     An office exempt by law from purview of disqualificatory provisions.

·        All four conditions have to be satisfied before an MP and MLA can be disqualified.

·        Going by the Supreme Court decisions, the test to decide whether a post is an office of profit is the role of the government in appointing and paying the person concerned.

·        In Jaya Bachchan case, the court said it was an office of profit even if one did not actually receive payment; it was enough if some pay was ‘receivable’.

·        In Raman v. P.T.A. Rahim, the court said only posts that are capable of yielding pecuniary gains, as distinguished from compensatory allowances, would be offices of profit.

·        However, a person who acquires a contract or licence from a government to perform functions, which the government would have itself discharged, will not be held guilty of holding an office of profit.

·        So, acquiring a gas agency from the government or holding a permit to ply does not amount to holding office of profit.

Rationale behind the principle

·        Makers of the Constitution wanted that legislators should not feel obligated to the Executive in any way, which could influence them while discharging legislative functions.

·        In other words, an MP or MLA should be free to carry out her duties without any kind of governmental pressure.