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Polity & Governance
Mahesh

29/10/22 06:41 AM IST

Office-of-profit case

In News 
  • Jharkhand Governor Ramesh Bais recently said he had sought a "second opinion" in a case of office-of-profit.
Office Of Profit 
  • MPs and MLAs, as members of the legislature, hold the government accountable for its work.
  • The essence of disqualification under the office of profit law is if legislators holds an ‘office of profit’ under the government, they might be susceptible to government influence, and may not discharge their constitutional mandate fairly.
  • The intent is that there should be no conflict between the duties and interests of an elected member.
  • Hence, 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.
Supreme Court Judgement 
  • The 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.
  • An office of profit has been interpreted to be a position that brings to the office-holder some financial gain, or advantage, or benefit.
  • The amount of such profit is immaterial.
  • In 1964, the Supreme Court ruled that the test for determining whether a person holds an office of profit is the test of appointment.
  • In 2001, a three-judge bench of the apex court in the case of Kartar Singh Bhadana vs Hari Singh Nalwa & others also made it clear that a mining lease does not amount to execution of a work undertaken by the government.
Constitutional Provisions 
  • Under Article 102 (1) and Article 191 (1) of the Constitution, an MP or an MLA (or an MLC) is barred from holding any office of profit under the central or state government.
  • The articles clarify that “a person shall not be deemed to hold an office of profit under the government of India or the government of any state by reason only that he is a minister”.
  • Provisions of Articles 102 and 191 also protect a legislator occupying a government position if the office in question has been made immune to disqualification by law.
  • Parliament has also enacted the Parliament (Prevention of Disqualification) Act, 1959, which has been amended several times to expand the exempted list.
Source- Indian Express 

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