An office of profit is a widely used term when it comes to executive appointments under national constitutions. This concept is prohibited in several countries especially in the legislature, from accepting an office of profit under the executive. This is done to secure the independence of the legislature and preserve the separation of powers.
“Profit” normally connotes any advantage, benefit or useful consequences. Generally, it is interpreted to mean monetary gain, but in some cases benefits other than monetary gain may also come within its meaning. “Office of Profit” is one to which some power of patronage is attached or in which the holder is entitled to exercise the executive functions, or which carries dignity, prestige or honour to the incumbent thereof.
Latest on Office of Profit:
- President Ram Nath Kovind has rejected a plea seeking disqualification of YSR Congress leader V Vijaisai Reddy as Rajya Sabha member on the grounds of holding ‘office of profit’ as special representative of the Andhra Pradesh government in the national capital.
Related issue – A petition was filed seeking disqualification of Vijaysai Reddy as a member of the Upper House of Parliament alleging that the post of special representative of the Andhra Pradesh government at the Andhra Pradesh Bhawan being held by the YSR Congress Party MP was an office of profit.
However, the Election Commission had held that since no pecuniary gain was derived from the said office and Reddy was not entitled to any other perks or remuneration other than enjoying the status of a ‘state guest’ during his travels to Andhra Pradesh in connection with the performance of his duties as special representative, he did not incur disqualification under Article 102(1) (a) of the Constitution of India.
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Why Should an MLA or MP Not hold an Office of Profit?
There is a clear statement in the Indian constitution under Articles 102(1)(a) and 191(1)(a), that an MP or MLA is not allowed to hold any office of profit as this would fetch them financial gains and benefits.
At present, the Parliament (Prevention of Disqualification) Act, 1959, bars an MP, MLA or an MLC from holding any office of profit under the central or state government unless it is exempted. However, it does not clearly define what constitutes an office of profit.
Holding an office of profit under the government by these members is subjected to grounds of disqualification.
What is the underlying principle for including ‘office of profit’ as a criterion for disqualification?
- Makers of the Constitution wanted that legislators should not feel obligated to the Executive in any way, which could influence them while discharging legislative functions.
- In other words, an MP or MLA should be free to carry out her duties without any kind of governmental pressure. The intent is that there should be no conflict between the duties and interests of an elected member.
- The office of profit law simply seeks to enforce a basic feature of the Constitution- the principle of separation of power between the legislature and the executive.
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What Comes Under the Office of Profit?
The 1959 law does not clearly define what constitutes an office of profit but the definition has evolved over the years with interpretations made in various court judgments.
The office of profit comprises any place or position that carries or offers some remuneration, financial advantage, benefit etc.
Factors constituting an ‘Office of Profit’
In 1964, the Supreme Court ruled that the test for determining whether a person holds an office of profit is the test of appointment.
Several factors are considered in this determination including factors such as:
- whether the government is the appointing authority,
- whether the government has the power to terminate the appointment,
- whether the government determines the remuneration,
- what is the source of remuneration, and
- the power that comes with the position
Where has the Office of Profit Concept been Adopted from?
The office of profit concept has been adopted from the British Parliamentary model. This concept is based on similar lines with the English Act of Settlement 1701.
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