satya ranjan The concept of office of profit

The concept of “Office of Profit’’ in India: 

Satya Ranjan Swain B.A.LL.B. (Hons.) 9 th Semester KIIT School of Law, KIIT University, Bhubaneswar E-mail: 783023@kls.ac.in Web: http://satyaranjankls.blogspot.com The concept of “Office of Profit’’ in India

Acknowledgement: 

I am extremely grateful to Dr. Tabrez Ahmed, Academic Co- ordinator & Professor of Law, KIIT School of Law for giving me his consent to carry out the project. I would like to thank Mr. Kumar Kartikeya , Assistant Professor of Law, KIIT School of Law and other teaching staffs of KIIT School of Law for their help in the entire process. Last but not the least I would take the opportunity of thanking my parents and friends for their constant support and co-operation. Acknowledgement

Table of Contents: 

Introduction Office of Profit Analysis of the Constitutional provisions Rationale for the disqualification for holding an Office of Profit Distinction between holder of office of profit under Article 58(2) or 66(4) and article 102(1)(a) or 191(1)(a ) Law on Office of Profit in United States Law of Office of Profit in India Executive as Office of Profit Instances of Political abuses Recent and famous cases related to office of Profit Recommendation of the Joint parliamentary committee Disqualification of MP’s Disqualification in India and England: A Comparison Criticism Recommendations Conclusion Table of Contents

Introduction: 

The inherent idea is to ensure that personal and pecuniary interests will not come in the way of the objective and effective discharge by the legislators of their onerous responsibilities. Introduction

Office of Profit: 

In ordinary parlance, an office of profit means an office or position, which brings to the person holding it some pecuniary gain or advantage or benefit . Wharton’s Law Lexicon (14 th Edition) describes an ‘office’ as an employment, either, judicial, municipal, civil, military, ecclesiastical and ‘profit’ as a pecuniary advantage. The New Oxford Dictionary of English describes ‘profit’ as a financial gain, an advantage or benefit . Originated in the House of Commons in the sixteenth century Office of Profit

PowerPoint Presentation: 

Jaya Bacchan v. Union of India and others: “An office of profit is an office which is capable of yielding a profit or pecuniary gain. The court further held that, “for deciding the question as to whether one is holding an office of profit or not, what is relevant is whether the office is capable of yielding a profit or pecuniary gain and not whether the person actually obtained a monetary gain. If the “pecuniary gain” is “receivable” in connection with the office then it becomes an office of profit, irrespective of whether such pecuniary gain is actually received or not.”

Analysis of the Constitutional provisions: 

Article 102(1)(a) suggests that for this disqualification to operate, the concurrence of following three ingredients is essential:- A person holds an office; The office is under the Central or the State Government; and, The office is one of profit. Analysis of the Constitutional provisions

Distinction between holder of office of profit under Article 58(2) or 66(4) and article 102(1)(a) or 191(1)(a) : 

Distinction between the holder of an office of profit under the government and the holder of the office of profit under a local or other authority subject to control of government while this is a disqualification for post of the president or vice-president under article 58. Distinction between holder of office of profit under Article 58(2) or 66(4) and article 102(1)(a) or 191(1)(a)

Law on Office of Profit in United States: 

The framers of the US Constitution adopted a similar position. The US Constitution provides that "no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office." Law on Office of Profit in United States

Law of Office of Profit in India: 

Satrucharla Chandrasekhar Raju v. Vyricherla Pradeep Kumar Dev Shibu Soren v. Dayaanand Saahy Guru Gobinda Basu v. Sankari Prasad Ghosal Madhuker G.E. Pankakar v. Jaswant Chobbildas Rajani Law of Office of Profit in India

Executive as Office of Profit: 

Westminster model 91 st Amendment to the Constitution enacted in 2003 limited the size of Council of Ministers to 15% of the Lower House. Chairmanships of Corporations, Parliamentary Secretaries of various ministries, and other offices of profit are often inducements to legislators to satisfy their aspirations for rank, status and privilege, and a way of buying peace for the government. Executive as Office of Profit

Instances of Political abuses: 

Instances of Political abuses

Recent and famous cases related to office of Profit: 

Recent and famous cases related to office of Profit

Recommendation of the Joint parliamentary committee: 

The states have the liberty to enact laws on creation of exceptions for disqualification from offices of profit but not to define the term ‘office of profit’ itself. The Committee suggested the definition of ”office-of-profit” as: “any office under the control of the Government of India, or the government of a state, whether or not the salary or remuneration for such office is paid out of the public revenue of the government of India or of the government of state — any office under a body, which is wholly or partially owned by the government of India or the government of any state and the salary or remuneration is paid by such body — any office the holder of which is capable of exercising executive powers delegated by the government, including disbursement of funds, allotment of lands, issuing of licenses and permits or making of public appointments or granting of such other favors of substantial nature; or legislative, judicial or quasi-judicial functions.” Recommendation of the Joint parliamentary committee

Resolution of disputes raised therein: 

Resolution of disputes raised therein

Disqualification in India and England: A Comparison: 

Disqualification in India and England: A Comparison

Criticism: 

Criticism

Recommendations: 

Advisory bodies should be excluded Close coordination and integration between the Council of Ministers and the organization or authority or committee Discretionary funds at the disposal of legislators and the power to determine specific projects and schemes, or select the beneficiaries or authorize expenditure should be treated as disqualification under Articles 102 and 191. Does not an industrialist face a conflict of interest as an MP? Recommendations

Conclusion: 

Judicial decisions are invariably protecting the politicians by interpreting the offices they held as not offices of profit. Attitudinal change is required to ensure effective functioning of legislature and smooth working of democracy. Conclusion

PowerPoint Presentation: 

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