EC recommends disqualification of 20 AAP MLAs: What is an office of profit and when does it apply?

The decision of the Election Commission to recommend the disqualification of 20 AAP MLAs for holding an 'office of profit' serves as a major jolt to the ruling party in Delhi.

The decision, if approved by the president, will see the party's formidable strength in the Delhi Assembly (67 of 70 seats) cut down to 47. Delhi will most likely also see a mini-Assembly election, with 20 seats up for grabs in the 70-member House.

File image of Delhi chief minister Arvind Kejriwal. AFP

But the brouhaha around the controversy has brought the "office of profit" law back on to the centre stage of Indian politics. The last time around, in 2006, this law had forced the then Congress chief Sonia Gandhi to resign from her Lok Sabha seat.

This raises a pertinent question:

Just what is an office of profit?

An office of profit means a position that brings to the person holding it some financial gain, or advantage, or benefit. It may be an office or place of profit if it carries some remuneration, financial advantage, benefit etc. The amount of such profit is immaterial.

The idea behind the concept of office of profit, as per a report in Hindustan Times, is 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.

The object of the provision is to secure the independence of the MPs and to ensure that Parliament does not contain persons who have received favours or benefits from the executive and who consequently might be amenable to its influence.

The provision thus protects democracy of the country from being corrupted by executive patronage and also secures the independence of MPs from the influence of the government so that they discharge their functions without fear or favour.

Office of profit under Indian Constitution

As per the Indian Constitution, the term office of profit has not been defined. Articles 102(1) and 191(1), however, give effect to the concept of office of profit.

Article 102(1) (a) states that: "A person shall be disqualified for being chosen as, and for being, a member of either House of Parliament 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." Article 191 (1) (a) also has a similar provision for the members of state Assemblies.

However, there are certain exemptions. Articles 102 and 191 also 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.

An office of profit does not necessarily mean financial benefits. Even administrative positions offered without any additional financial entitlements can be considered as a violation of this law.

Thus it is clear that the law is open to interpretation. Hence, to determine whether a person holds an office of profit has to be interpreted based on the facts and circumstances of each case.

The Supreme Court, in Ashok Kumar Bhattacharya vs Ajoy Biswas (AIR 1985 SC 211), had held that to determine whether a person holds an office under the government, each case must be measured and judged in the light of the relevant provisions and sections.

Office of profit and Delhi law

Section 15(1)(a) of the government of national capital territory of Delhi Act, 1991 states: "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."

According to the Hindustan Times report, 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 the 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.

This is exactly how the case has progressed in the current imbroglio. The president will now decide on the fate of the 21 MLAs after the EC's recommendations.

Disqualification

According to a report in The Hindu, there are generally two tests in deciding whether a member of a body ought to be exempted from disqualification: (1) the emoluments and allowances attached to the members; and (2) the nature and function of the body.

If a member of a body gets only compensatory allowance and the body exercises merely an advisory function, then no disqualification would arise. But if the allowances given are more than compensatory allowance and/or the body exercises executive and financial powers and is in a position to wield influence and patronage, then its membership would not be excluded from disqualification, the report said.

Past cases

In 2006, a question was raised under the ambit of this law over Sonia's National Advisory Council post, which she held apart from being the MP from Rae Bareilly.

The Opposition parties at the time had argued that since as NAC chairperson, she enjoyed the rank and status of a Union Cabinet minister, the office of profit law applied. They had petitioned the then president APJ Abdul Kalam, asking him to disqualify Sonia as an MP.

Congress leaders, meanwhile, had argued that the post of NAC chairperson was not an office of profit as Sonia received no salary or perks, and she had a purely advisory role.

According to Rediff, the Election Commission had also sent a notice to Samajwadi Party leader Amar Singh, Rajya Sabha member and chairperson of the Uttar Pradesh Industrial Development Council, on a similar petition against him.

Jaya Bachchan was also disqualified from the Rajya Sabha, while she was also chairperson of the Uttar Pradesh Film Development Federation. Similarly, two Uttar Pradesh Legislative Assembly members, Bajrang Bahadur Singh and Uma Shankar Singh, were disqualified in January 2015 due to holding government contracts.

With inputs from agencies