Office of Profit

Topics: Lok Sabha, Constitution of India, Separation of powers Pages: 13 (4825 words) Published: April 14, 2013

B.A. (Hons.)LL.B. (Hons.) 2nd Semest B.A. (Hons.)LL.B. (Hons. 2nd Semes B.A. (Hons.)LL.B. (Hon 2nd Introduction:

In India, the concept of “office of profit” disqualifying the holder was imported from Britain and it made its appearance for the first time in the Act of 1909, which embodied the Morley-Minto Reforms proposals. The basic idea was — and remains — that the legislators should not be vulnerable to temptations an executive can offer. The framers of the Constitution thoughtfully incorporated Article 102 (1) and 191 (1), prescribing the restrictions at the Central and State levels. In the Indian Constitution Art.102 and Art.191 deals with disqualification of members of Parliaments and state legislature respectively. Art.102 (1) (a) provides for the disqualification of the membership of either house of parliament and it reads as follows:- “102. Disqualification for membership:

(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;There is a similar provision in the constitution for the disqualification of membership of legislative assembly that is art.191 (1) (a). A perusal of the above provision shows that three elements which are sine qua non for attracting the above provision are that the person concerned must hold an office - (1) Under the Government of India or any State;

(2) The office should be an ‘office of profit’ and
(3) The office should be other than an office declared by parliament by law not to disqualify its holder Article 102(1)(a) corresponds to Article 191(1)(a) of the Constitution of India which lays down similar disqualifications for being chosen as or for being a member of the Legislative Council or Assembly of a State. The expression “office of profit” has not been defined in the Constitution or in the Representation of the People Act, 1951. Its ambit has to be inferred only from pronouncements of courts and other competent authorities, like the Election Commission and the President. The object of the provision is to secure independence of members of parliament and do not contains persons who have received favors or benefits from the executive and who consequently being under an obligation to executive, might be amenable to its influence. 2) Rationale for the disqualification for holding an Office of Profit:

The underlying concept behind these two articles is the principle of separation of power between the functionaries of a state like legislative, judiciary and executive. The principle of separation of powers enjoins that the three organs of the government- the executive, the legislature and the judiciary should be separate from each other. This is to ensure the isolation, immunity or independence of one branch of government from the actions or interference of another and to ensure checks and balances. The object of enacting Articles 102(1)(a) and 191(1)(a) is that there should not be any conflict between the duties and interests of an elected member and to see that such an elected member can carry on freely and fearlessly his duties without being subjected to any kind of governmental pressure, thereby implying that if such an elected person is holding an office which brings him remunerations and if the Government has a voice in his functions in that office, there is every likelihood of such person succumbing to the wishes of the Government. These Articles are intended to eliminate the possibility of such a conflict between duty and interest so that the purity of legislature is unaffected. The true principle behind this provision in Article 102(1) (a) is that...
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