What are the Tests to Determine “Office of Profit”? What is Office of Profit? (Important) (Download PDF)

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The Election Commission recommended disqualification of 20 Aam Aadmi Party (AAP) MLAs for holding an Office of Profit as parliamentary secretaries to the Ministers of the National Capital Territory. The President of India accepted the Election Commission’s recommendation to disqualify the MLAs.

Image of office of profit

Image of Office of Profit

Image of office of profit

What is Office of Profit?

  • Office of profit is a position in the government, which cannot be held by Member of Legislative Assembly (MLA) or Member of Parliament (MP).

  • An office of profit is capable of yielding a profit or pecuniary gain. Holding an office under the Central or State government, to which some pay, salary, emolument, remuneration or non-compensatory allowance is attached, is “holding an office of profit” for the purpose of Article 102 of the Constitution of India.

  • The post can yield salaries, perquisites, and other benefits.

  • It has not been defined in Constitution or Representation of the People Act, 1951.

Tests to Determine Office of Profit

The ECI examined the rich jurisprudence of office of profit and disqualification of a Member of Legislative Assembly and enlisted three determinative tests:

  • Test of pecuniary gain

  • Executive nature of office

  • Test of exercise of constitutional/executive powers while functioning as parliamentary secretary. This was significant in this case as the office of Parliamentary Secretary allowed the incumbents to participate in high-level meetings of the Government and to even Chair those meetings.

Key Facts on Disqualification

  • A legislator cannot be disqualified from either Parliament or state assembly for holding any office.

  • The disqualification can be done only in case of holding:

    • an office

    • office of profit

    • office under union or state government

    • office exempt by law from purview of disqualificatory provisions.

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

Legal Backing of Office of Profit Disqualification

According to Articles 102 (1) (a) and 191 (1) (a) of Constitution, legislators (MP or MLA) can be barred from holding office of profit under Central Government or state government, as it can put them in position to gain financial benefit. Under the RPI, 1951 too, holding an office of is grounds for disqualification.

Other Criteria Disqualification

They can be disqualified in case they are being of unsound mind, undischarged insolvent and not being Indian citizen or for acquires citizenship of another country.

Jaya Bachchan Case (2006): How Do EC Courts Decide Office of Profit Cases?

  • The Supreme Court (SC), in Jaya Bachchan case (2006) disqualifying her from Rajya Sabha had held that office of profit is relevant if office is capable of yielding profit or pecuniary gain.

  • The office of profit is not whether person actually obtained a monetary gain.

  • The supreme court held that if office carries with it or entitles holder to any pecuniary gain other than reimbursement of out of pocket or act or actual expenses, then office will be office of profit for purpose of Article 102 (1) (a).

  • If a person 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.

- Published/Last Modified on: February 28, 2018

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