Office-of-profit

News

The Election Commission (EC) has sent a notice to Jharkhand Chief Minister Hemant Soren over an office-of-profit charge against him for allotment of a mining lease in his name.

Significance

Mains: The concept and issue of office of profit

Prelims: The constitutional provisions and facts about Office of profit

About

The Election Commission (EC) has sent a notice to Jharkhand Chief Minister Hemant Soren over an office-of-profit charge against him for allotment of a mining lease in his name.

Under Section 9A of the Representation of the People Act, 1951, Mr. Soren the chief minister of Jharkhand could face disqualification for entering into a government contract.

The Concept

An office of profit is one that provides financial gain, advantage, or benefit to the person who holds it. It may be a profit-making office or location if it offers pay, financial gain, or other benefits.

It's a word for executive appointees that appears in a number of country constitutions.

As a safeguard for the legislature's independence and the separation of powers, a number of countries prohibit members of the legislature from accepting a lucrative position in the executive branch.

Office of profit: India

The term Office of Profit is not defined in the Constitution or the 1951 Representation of the People Act.

It loosely refers to an MLA or MP who holds a government position and benefits from it.

If a person has a profit-making or any financial gain position in the central or state government, he will be disqualified, unless the position is deemed not to disqualify its holder by a law passed by Parliament or the state legislature.

Constitutional provision

Article 102 (1)(a):

(1) A person shall be disqualified for being chosen as, and for being, a member of either House of Parliament.

(a) If he holds 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):

(1) A person shall be disqualified for being chosen as, and for being, a member of the Legislative Assembly or Legislative Council of a State

(a) if he holds any office of profit under the Government of India or the Government of any State specified in the First Schedule, other than an office declared by the Legislature of the State by law not to disqualify its holder;

The Supreme court of India in Pradyut Bordoloi vs Swapan Roy (2001) has laid down few important criteria’s for deciding the office of profit as given below:

  • Whether the government controls the appointment, removal, and performance of the office's tasks.
  • Whether the office is paid.
  • Whether the body in which the office is held has government powers (releasing money, allotment of land, granting licences etc.).
  • Whether or not the position allows the bearer to exert influence through patronage.
 
Posted by on 3rd May 2022
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