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बेसिक इंग्लिश का दूसरा सत्र (कक्षा प्रारंभ : 22 अक्तूबर, शाम 3:30 से 5:30)
'Office of Profit' not Defined in Any Law or Judgement
Aug 16, 2016

Several lawmakers have faced disqualification for holding 'office of profit', but the expression itself has not been defined in any law or judgement, prompting a Parliamentary committee to ask the Law Ministry to come up with a bill clearly listing offices holding of which would disqualify a member of Parliament.

Key Recommendations of the Committee

  • The Joint Committee of Parliament on Office of Profit in two of its latest reports has observed that the expression has not been defined in the Constitution, the Representation of the People Act, Parliament (Prevention of disqualification) Act or in any judgement delivered either by a high court or the Supreme Court.
  • This is evidently because it is not easy to frame an all embracing definition, covering all the different kinds of posts which exist under government and those which might hereafter be created.
  • Now the Joint Committee has asked the Law Ministry to undertake an exercise to draft a bill enumerating clearly the bodies/offices which would disqualify MPs, bodies/offices which would disqualify MPs, bodies/offices for which exemption need to be granted and bodies/offices which would not incur disqualification of MPs.
  • The panel pointed out that Part I and Part II of the Schedule to the Parliament (Prevention of Disqualification) Act contain lists of bodies, the holder of which would result in disqualification.
  • The Joint Committee are of the view that there may be a number of bodies or offices which may not have been included in the said list and, as a consequence, this gives an impression that the membership of bodies/offices which are outside the 'negative list' are safe and would not jeopardise the membership of the MPs, which of course, is not a convincing position as each and every body/office which are outside the negative list needs to be examined with reference to principles/guidelines laid down for the purpose.
  • There is a need to remove any ambiguity on the issue of bodies becoming a part of which could lead to disqualification of a lawmaker.
  • In one of the two reports tabled in recently concluded Monsoon session of the Parliament, the committee said MPs who are members of four bodies functioning under the Ministry of External Affairs would continue to remain out of the ambit of 'office of profit' law and would not attract disqualification.
  • The Joint Committee recommended that The Indian Council for Cultural Relations, Research and Information System and Hindi Salahakar Samiti of the External Affairs Ministry should remain listed under the relevant sections of the Parliament (Prevention of Disqualification) Act, 1959, the membership of which should not disqualify a Member of Parliament.
  • The Committee agrees with the view of the MEA that membership of the Indian Council of World Affairs should not be considered 'office of profit' and therefore not be listed specifically in the schedule of the disqualification law.

What is Office of Profit?

The idea behind the concept of office of profit–which evolved in England–is to preserve the independence of the legislature by keeping the members away from any temptations from the executive that can come in the way of independent discharge of their duties. It also seeks to enforce the principle of separation of power between the legislative, the judiciary and the executive–a basic feature of the Constitution.

Office of profit under Indian Constitution

The term office of profit has not been defined in the Constitution. But, articles 102 (1) and 191 (1)–which give effect to the concept of office of profit—prescribe restrictions at the central and state level on lawmakers accepting government positions. Any violation attracts disqualification of MPs or MLAs, as the case may be.

  • According to Article 102 (1) (a), a person shall be disqualified as a member of Parliament for holding any office of profit under the government of India or the government of any state, “other than an office declared by Parliament by law not to disqualify its holder”. Article 191 (1) (a) has a similar provision for the members of state assemblies.
  • However, articles 102 and 191 clarify that “a person shall not be deemed to hold an office of profit under the government of India or the government of any state by reason only that he is a minister”.
  • Further, the last part of the two provisions protects a lawmaker holding a government position if the office has been made immune to disqualification by law.

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