REDUNDANCY OF THE ‘OFFICE OF PROFIT’

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Article 102(a) of the Constitution of India states that a Member of either House of the Parliament shall be disqualified if he holds an ‘Office of Profit’ under the Central or State Government until such Office has been declared by law to not be covered as an ‘Office of Profit’. A similar provision can be found under Article 191 for the Member of Legislative Assemblies. The rationale behind this provision being that an elected representative is to discharge his duties without any duress or extraneous consideration which might influence his decision making while discharging his duties as a law maker if he holds an Office of Profit. The moot question here is not what constitutes an ‘Office of Profit, but whether disqualification because of holding such office serves the purpose of making legislators independent in their decision making?

The roots of this provision are to be found in the theory of ‘Separation of Powers’ whereby the Legislature, Executive and Judiciary are kept independent of each other while each having its’ own mechanism of checks and balances to keep the other organ from digressing from its’ constitutional duties. In a Parliamentary form of Government such as ours, the Executive is a part of the Legislature and the Legislature itself elects the head of the Executive, the Prime Minister in case of the Union Government and Chief Minister in case of the State Government. The Ministers are also a part of the Legislature and rather than carrying out their Legislative duties independently of any Executive influence, they always vote on Bills and issues in line with the directions of the Party to which they belong ignoring their own views. The position of the ‘Chief Whip’ of a Political Party who issues directions to all members of his Political Party regarding their decisions in the Legislature itself shows the compromise that Legislatures have to make to their supposed independent manner of working. Further, even though an ‘Office of Profit’ has been clearly defined over a series of cases by the Supreme Court, the Legislature itself reserves the power to exempt any office from the definition of an ‘Office of Profit’ by a special law which in this case being the The Parliament (Prevention of Disqualification) Act, 1959 whose objective reads as under:

“An Act to declare that certain offices of profit under the Government shall not disqualify the holders thereof for being chosen as, or for being, members of Parliament.”[1]

Similar Acts have also been enacted by the State Governments thereby giving the Legislature arbitrary power to exempt an Office from the definition of an ‘Office of Profit’. The laxity on part of the Government to adhere to the theory of Separation of Powers is clear from the fact that the The Parliament (Prevention of Disqualification) Act, 1959 has been amended five times (1993, 1999, 2000, 2006, 2013)[2] to exclude many offices from the purview of an ‘Office of Profit’. Further, there is no uniformity in the existence and application in the law related to disqualification of Legislatures holding an Office of Profit. While members of the Delhi Legislative Assemble were disqualified recently for holding the post of Parliamentary Secretary, the same Assembly had under previous Governments appointed Parliamentary Secretaries without any protest from the opposition.[3]

A similar provision can be found in American Constitution under Article 1, Section 6, Clause 2 which states that “No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been increased during such time”.[4] In a Presidential form of Government such as the one in the U.S.A, the three organs of the State are completely independent of each other and the executive does form a part of the legislature thereby allowing separation of powers amongst the three organs of the State. In the Indian context, the theory of Separation of Powers is rendered ineffectual through the 10th Schedule of the Constitution itself wherein it is stated that a Legislature is liable to be disqualified if he votes or abstains from voting in such House contrary to any direction issued by the political party to which he belongs[5] thereby blurring any line between the Legislature and the Executive and rendering the exercise of disqualifying Legislatures for holding an Office of Profit merely a political tool.

Even though the rationale behind shielding Legislators from any extraneous influence by barring them from holding an Office of Profit is laudable, the procedure for deciding this issue by the President or Governor while acting on the advice of the Election Commission needs to be made time bound as in some States where the Legislators who allegedly hold an Office of Profit belong to the Party in power and the Governor is also a former member of the same party, the Governor has not taken cognizance of the issue leaving it to the Judiciary to decide the same. As for the substantive part of the law dealing with what constitutes an Office of Profit and the constant attempts by the Executive to expand its’ definition, the Legislature ought to show self-restraint otherwise they’ll be thought of  on the same lines as Aung San Suu Kyi defined Government Officials in the following words:

“Government leaders are amazing. So often it seems they are the last to know what the people want.”

Drafted By-

Vivek Punia, Advocate, Prosoll law Inc.

[1] THE PARLIAMENT (PREVENTION OF DISQUALIFICATION) ACT, 1959.

[2] https://thewire.in/216169/grab-opportunity-abolish-disqualification-due-office-profit/.

[3] https://www.pressreader.com/india/the-times-of-india-new-delhi-edition/20180120/281625305718940.

[4] The Constitution of the United States of America, Article 1, Section 6, Clause 2.

[5] The Constitution of India, 10th Schedule.

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