The Election Commission of India (EC) sent a report to Jharkhand governor Ramesh Bias on Thursday ostensibly recommending the disqualification of chief minister Hemant Soren as a member of the assembly for allegedly holding a mining licence. As the Bharatiya Janata Party (BJP) has argued that Soren violated the office of profit rules and sought his disqualification, a look at what the concept entails:
What is the office of profit?
The concept was introduced to prevent conflict of interest for members of Parliament and legislative assemblies, who primarily hold government accountable, to that of the executive. Holding an office of profit is seen to make them susceptible to government influence and impact their ability to perform their role properly
The concept seeks to enforce the separation of powers between the legislature and the executive branches as provided in the Constitution. It seeks to protect the independence of the legislators. The concept came from the British Parliamentary model, which deems certain non-ministerial offices incompatible with membership of Parliament. The influence of the executive over the House of Commons, the elected House of the UK Parliament, is expected to be limited. A certain number of ministers should be members of the House for controlling the executive.
Constitutional Position
{{/usCountry}}Constitutional Position
{{/usCountry}}The framers of the Indian Constitution were clear on the concept. They provided for disqualification of lawmakers for holding the office of profit under Article 102 (1). The concept covers any office in the central government or state except ministerial positions or offices specifically exempted.
The Definition
The Parliament (Prevention of Disqualification) Act, 1959, lists the offices of central and state governments exempted under the office of profit. It does not provide a clear definition of the office of profit. As per interpretations in court judgments, a position that brings to the officeholder, who is also a lawmaker, financial gains or advantage or benefit can be defined as the office of profit.
In 1964, the Supreme Court cited five conditions for determining the office of profit. It said offices of profit are the ones where the government is the appointing authority, has the powers to terminate the appointment, determines remuneration, source of remuneration and power with the position. Since then, the Supreme Court orders have narrowed down the definition of the office of profit to mean anything which is permanent in nature, exists independent of the holder, remuneration received other than compensatory allowances, and the power the position provides.
Considering the Constitutional position could lead to several disqualification proceedings, the Centre appointed a committee in 1954 for a law for determining positions that do not come under the concept of the office of profit. In 1959, the Parliament (Prevention of Disqualification) Act was enacted listing the offices of the central and the state governments for the purpose. The number of offices exempted has increased since. Several states also have also enacted similar laws to prevent disqualifications.
The Role of Courts
In absence of a clear definition, what constitutes an office of profit has been left for the judiciary to interpret. In most cases, the Supreme Court has tried to see whether there is a conflict between the duties and the interests of lawmakers. Many legislators are appointed as parliamentary secretaries and are given the de-facto status of junior ministers to overcome the Constitutional bar of not having more than 15% of the legislative strength as ministers in states (10% in the case of Delhi).
In some states, high courts have termed the inclusion of parliamentary secretaries in the exception category unconstitutional. The appointment of members of the assembly as parliamentary secretaries was an attempt to bypass the constitutional ceiling on the number of ministers, the Calcutta high court said in 2015 as it may confer the rank of junior ministers. In 2009, the Bombay high court said the appointment of parliamentary secretaries of the rank and status of a Cabinet minister violated Article 164 (1A) of the Constitution. There is no bar on how many offices the government can exempt.
Prominent Disqualifications
In 2004, Samajwadi Rajya Sabha member Jaya Bachchan was disqualified following her appointment as Uttar Pradesh Film Development Council chairperson. The Supreme Court held that getting a driver, car and official accommodation amounted to remuneration from the government even though Bachchan did not get any money from the council.
In 2006, the BJP sought disqualification of Congress president Sonia Gandhi from Lok Sabha on the grounds that she was holding an office of profit as chairperson of the National Advisory Council (NAC). Gandhi resigned from Lok Sabha, re-contested, and got elected again. In the meantime, NAC was included in the exemption list.
The Soren Case
Although Soren seeking a mining lease from the department he was in charge of may not strictly fall under the office of profit rule, the BJP sought the disqualification under Section 9A of the Representation of People’s Act. The provision allows disqualification. It deals with contracts entered into the course of trade or business with the appropriate government for the supply of goods to or for the execution of any works undertaken by the government. The BJP said Soren “misused” his official position to get the mining lease. Soren has rejected the allegation.
Soren’s lawyers countered the BJP’s contention before the ECI saying the mining lease was not executed and he sought cancellation of the consent to operate it in February, which means he did not get any benefit from the lease. Soren contended that Section 9A was not applicable in this case as the mining lease is not a government contract.