The constitutional concept of "Office of Profit" in India is a critical component of the country's democratic framework. It is designed to ensure the independence of elected representatives and to maintain a clear separation of powers between the Executive and the Legislature.
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In the Indian Constitution, this disqualification is enshrined in articles 102(1) and 191(1). These articles provide for the disqualification of an individual from being chosen as and serving as a member of either the House of Parliament or a State Legislature if they hold an Office of Profit under the Union or the State government. This disqualification can be nullified if Parliament or the State Legislature passes a law declaring that a particular office does not disqualify its holder.
In this connection, the Supreme Court (Smt. Kanta Kathuria v. Manak Chand Surana, A.I.R. 1970) observed :
The word “office” has various meanings depending upon its context. The words “its holder” occurring in article 102(1)(a) or 191(l)(a) indicate that there must be an office which exists independently of the holder of the office.
Further, the very fact that the Legislature of a State has been authorised by article 191 to declare an office of profit not to disqualify its holder, contemplates existence of an office apart from its holder. In other words, the Legislature of a State is empowered to declare that an office of profit of a particular description or name would not disqualify its holder and not that a particular holder of an office of profit would not be disqualified
The Origin and Purpose
The need for such disqualification emerged from the desire to maintain a clear separation of powers between the Executive and the Legislature. It was imperative to prevent elected representatives from becoming beholden to the government by holding offices that could compromise their independence. The Bhargava Committee, appointed in 1954 to study matters related to disqualification, emphasized that members of Parliament should have the authority to influence decisions without being influenced themselves.
Defining "Office of Profit"
The term "Office of Profit" is a complex one and has not been explicitly defined in the Constitution or relevant legislation. The definition varies depending on the context, and it encompasses offices that yield income or profit, whether monetary or not. It includes positions with attached power of patronage, executive functions, dignity, prestige, or honor.
In the case of Smt. Kanta Kathuria v. Manak Chand Surana (A.I.R. 1970), the Supreme Court emphasized the importance of the existence of an office independently of its holder. The Court noted that the Constitution allows the Legislature of a State to declare that an office of profit, based on its description or name, would not disqualify its holder. In essence, the focus is on the existence of the office itself, rather than the specific individual occupying it.
In contrast, the case of A.K. Bhattacharya laid emphasis on the degree and nature of the government's control over a local body in determining whether an office within that body qualifies as an "Office of Profit." The Supreme Court in this case stressed that the primary objective behind Article 102(1)(a) is to prevent conflicts of interest between the duties and interests of elected members.
To assess whether employees of a local authority or other entities under government control hold offices of profit, the measure and nature of government control must be evaluated in the context of each case. This evaluation is vital to avoid potential conflicts between personal interests and government duties. The overarching goal is to ensure that elected representatives can carry out their duties without being subject to undue governmental pressure, thus preserving the purity of elected bodies.
Courts have provided certain criteria to determine whether an office qualifies as an "Office of Profit."
Three Essential Elements: To establish disqualification, three elements must be proven - the individual holds an office, it is an office of profit, and it is under the Government of India or a State (S. Umrao Singh v. Darbara Singh, A.I.R. 1968).
Nature of Control: The extent of government control over the office plays a pivotal role in determining whether it qualifies as an "Office of Profit" (A.K. Bhattacharya’s case).
Pecuniary Advantage: While an element of profit is necessary, mere prestige or advantages are insufficient. Pecuniary advantage is a vital element (Upendra Lal v. Smt. Narainee Devi, A.I.R. 1968 Madhya Pradesh).
Regularity of Income: An office need not have a regular income to be considered an "Office of Profit." The expectation of profit is sufficient (Hotilal v. Rai Bahadur, 15 E.L.R).
Sui Juris: The holder of the office must be sui juris, meaning legally capable of holding the office (Gulam Chand Chordia v. Thakur Narain Singh).
Tests for Determination of Office of Profit
The Supreme Court of India has laid down a set of tests to ascertain whether an office qualifies as an "Office of Profit":
Government Appointment: The government must have the power to appoint and remove the holder of the office (Guru Govinda Basu v. Shankari; Prasad Ghosal & Ors/SCR (1964)).
Government Payment: The government should be responsible for paying remuneration attached to the office.
Government Control: The government should exercise control over the performance of the functions associated with the office. (Shivamurthy Swami v. Sanganna, (1971) S.C.C. 870).
Conflict of Interest: The presence of a conflict of interest is a crucial factor in determining whether an office falls within the ambit of an "Office of Profit."
Resignation from an "Office of Profit"
The process and conditions surrounding a proper and valid resignation from an "Office of Profit" under the government are crucial factors in determining an individual's eligibility to contest elections and serve as a member of the Legislature in India. Several legal principles and cases help shed light on this important aspect:
Disqualification at the Time of Nomination: In the case of Ram Murty v. Sumbha Sardar (2 E.L.R. 330), it was established that a person is disqualified from being chosen as a member of the Legislature if they hold an office of profit under the government at the time of filing their nomination paper. This emphasizes the importance of the individual's status at the time of initiating the election process.
Acceptance of Resignation by Proper Authority: The disqualification is not automatically removed by an individual's submission of an unqualified resignation from their office of profit. Instead, it is contingent upon the proper authority accepting the resignation before the filing of the nomination paper. In other words, the mere act of resigning is not sufficient; it must be formally accepted by the competent authority within the specified timeframe.
Invalid Resignation Acceptance: If the resignation is accepted by an authority that is not competent to accept it, the disqualification remains in place. In such cases, the acceptance of the resignation is considered invalid, and the individual is regarded as having continued to hold the office. This principle was established in Thakur Daoosing v. Ramkrishna Rathor (4 E.L.R).
Office of Profit need not to be Master Servant
The object of enacting article 191(l)(a) is plain. A person who is elected to a Legislature should be free to carry on his duties fearlessly without being subjected to any kind of Government pressure. If such a person was holding the office which brings him remuneration and the Government has a voice in his continuance in that office, there was every likelihood of such person succumbing to the wishes of the Government.
For holding the office of profit under the Government, a person need not be in the services of the Government and there need not be any relationship of master and servant between them (. Biharilal Dobray v. Roshan Lal Dobray, (1984) 1 S.C.C. 551)
Following not an 'office of profit'
Several cases and instances have shed light on situations where an individual did not hold an "Office of Profit" under the government, providing clarity on the boundaries of this concept. Here are some examples where individuals were deemed not to hold an "Office of Profit":
Ex-Ruler with Privy Purse: In the case of Daulatram v. Maharaja Anand Chand (6 E.L.R. 87), an ex-Ruler of an Indian State who received an annual sum of money as a privy purse from the Union Government was not considered to hold an "Office of Profit" under the government within the meaning of Article 102 or 191 of the Constitution. The receipt of a privy purse was not equivalent to occupying an official government position.
Chief Parliamentary Secretary: In the case of Leela Devi v. Rangila Ram Rao (A.I.R. 1985 H.P), the holder of the office of Chief Parliamentary Secretary was not disqualified for being chosen as a member of the Legislative Assembly under the Act of 1971. This decision clarified that certain positions, such as that of Chief Parliamentary Secretary, did not result in disqualification as long as legal conditions were met.
Advocate as Special Government Pleader: According to the judgment in Kanta Kathuria v. Manak Chand Surana (A.I.R 1970 S.C.), an advocate appointed as the Special Government Pleader to assist the Government Pleader in a particular case did not hold an "Office of Profit." This affirmed that the role of an advocate in this context did not constitute an official government office.
Authorship of a Book: The work of writing a book by a Member of Parliament was also found not to be an "Office of Profit" under the government. Payment of remuneration by the government for such work did not alter the nature of the activity into an official government office. This interpretation clarified that creative endeavors like writing were distinct from holding an office.
Conclusion
The concept of an "Office of Profit" is pivotal in ensuring the independence of elected representatives and maintaining a clear separation of powers in a democratic system. While not explicitly defined, its criteria have been established through legal precedents and judgments. These criteria help in determining whether an office can lead to a conflict of interest and influence over elected members. By upholding the principles of democracy, this provision safeguards the interests of the people and the integrity of the legislative process. As the Supreme Court has wisely noted, it is the critical circumstances, not the total factors, that prove decisive in making such determinations. References:
MP Jain, Constitutional Law of India
DD Basu, Shorter Constitution of India(Volume-02)