The concept of office of profit has evolved in England to preserve the independence of the legislature by keeping the members away from any temptations from the executive that can come in the way of independent discharge of their duties. It also seeks to enforce the principle of separation of power between the legislative, the judiciary and the executive – a basic feature of the Constitution.
Office of profit under Indian Constitution
The term office of profit has not been defined in the Constitution. But, articles 102 (1) and 191 (1) – which give effect to the concept of office of profit — prescribe restrictions at the central and state level on lawmakers accepting government positions. Any violation attracts disqualification of MPs or MLAs, as the case may be.
According to Article 102 (1) (a), a person shall be disqualified as a member of Parliament for holding 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) has a similar provision for the members of state assemblies.
However, articles 102 and 191 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”.
Further, the last part of the two provisions protects a lawmaker holding a government position if the office has been made immune to disqualification by law.
Principles of declaring Office of Profit
Four broad principles have evolved for determining whether an office attracts the constitutional disqualification.
• First, whether the government exercises control over appointment, removal and performance of the functions of the office.
• Second, whether the office has any remuneration attached to it.
• Third, whether the body in which the office is held has government powers (releasing money, allotment of land, granting licences etc.).
• Fourth, whether the office enables the holder to influence by way of patronage.
Office of profit under NCT Act, 1991
• Section 15(1)(a) of the government of national capital territory of Delhi act, 1991, says “a person shall be disqualified for being chosen as, and for being, a member of the legislative assembly if he holds any office of profit” under the government of India, a state or a union territory” other than an office protected by law.
• Like articles 102 (1) and 191(1), Section 15(2) of the NCT act also protects ministers at the Centre, in states or union territories from disqualification. Section 15(3) of the NCT act says in case of a dispute over disqualification of an MLA, the matter would be referred to the President, whose decision would be final.
• But, before deciding on a petition seeking disqualification, the President, says the NCT act, has to get the opinion of the election commission which is binding on him.