Office of profit has been in news due to the disqualification of 21 AAP MLAs for holding the position of parliamentary secretary. However, the issue has been old and many other MP and MLAs have lost their parliamentary or state legislature seats for violating office of profit clause enshrined in Article 102 and 191 of the Indian Constitution. Jaya Bachchan lost her Rajya Sabha membership in 2006. Sonia Gandhi had to resign and seek re-election from Rai Bareilly for occupying the position of Chairperson of the National Advisory Council under UPA-I.
Principle behind the concept of Office of Profit:
It seeks to prevent members of the legislature from accepting office of profit under the executive as a means to secure the independence of the legislature and preserve the separation of powers.
Genesis of Office of Profit:
The ‘office of profit’ disqualification was originally provided in England by the Act of Settlement, 1701 and incorporated in Articles 102 and 191 of the Indian Constitution to ensure independence of legislators from the government.
Ministers are exempted under the explanation and any other office can also be exempted by the Parliament/Legislative Assembly.
Parliament had enacted the Parliament (Prevention of Disqualification) Act in 1959 which has been amended a number of times to include large offices which have been exempted from the purview of ‘office of profit’ disqualification in spite of salary and other perks.
Hundreds of posts under government of India and state governments over the years have been exempted, such as
Leader of opposition,
Chairman of the Planning Commission, Minorities’ commission and Women’s commission.
In 2006, as many as 55 new categories of offices were exempted such as Dalit Sena, Maulana Azad Education Foundation, Dr Ambedkar Foundation, Waqf Boards, Temple Trusts, several other corporations, commissions and boards.
In 2013, SC and ST Commissions were similarly exempted.
What is meant by Office of Profit:
The expression ‘office of profit’ has three elements i.e,
There should be an office;
It should be under the government; and
It should be the one from which its holder derives profit.
What is meant by Profit?
Agadi Sangama case:
The Supreme Court in the Agadi Sangama case, observed that “profit means pecuniary gain other than as compensation to defray his out of pocket expenses which may have the possibility to bring that person under the influence of the executive which is conferring that benefit on him.
Sibhu Soren case:
In the Sibhu Soren case, the court clarified that irrespective of nomenclature, if some pecuniary gain is there, it is ‘profit'.
Thus, the mere use of expression honorarium could not save the membership.
Jaya Bachchan case:
It was held by Supreme court that it is of no significance that the person received or not received the payment. If some payment was payable, it is enough to attract disqualification under the ‘office of profit’ provision.
The recent controversy related to appointment of AAP MLAs as Parliamentary secretaries:
Timeline of the Controversy.
Practice in other states:
West Bengal, Karnataka, Telangana, Nagaland, Meghalaya, Arunachal Pradesh, Punjab, Mizoram and Manipur have had similar incidents.
In West Bengal, Telangana and Punjab, the respective High Courts called the appointments "unconstitutional" and struck down the appointments.
The case regarding appointment of parliamentary secretaries is pending in the Karnataka High Court.
In Rajasthan, the State passes a Bill in October 2017 to make the posts constitutional, but the validity of this law has been challenged.Odisha too has appointed MLAs as chairpersons of district planning committees by amending an Act.
The Supreme Court struck down The Assam Parliamentary Secretaries (Appointment, Salaries, Allowances and Miscellaneous Provisions) Act, 2004 in July 2017 leading to a wave of resignations in Northeastern states.