Profit and loss

Profit and loss

Context:

• The disqualification of AAP MLAs for holding office of profit

AAP’s stand:

• The party claims it was denied a hearing and alleges political motives behind the action.
• It has questioned the timing of the decision, just ahead of the Chief Election Commissioner’s retirement.
• Regardless of the charge of political malice, the correctness of the EC’s decision will be decided on legal grounds.
• The courts will have to rule on the question whether the post of parliamentary secretary, which these MLAs were holding, is an ‘office of profit’.
• They may also examine whether there was any violation of natural justice.

Issues involved:

• The key question was whether the post was an office of profit even after the Delhi government made it clear that parliamentary secretaries would not be eligible for any remuneration or perquisites.
• They were only allowed the use of government transport for official uses and office space in the respective ministries.

Office of Profit:

• An office of profit is a term used in a number of national constitutions to refer to executive appointments.
• If an MLA or an MP holds a government office and receives benefits from it, then that office is termed as an “office of profit”.
• A person will be disqualified if he holds an office of profit under the central or state government, other than an office declared not to disqualify its holder by a law passed by Parliament or state legislature.
• A number of countries forbid members of the legislature from accepting an office of profit under the executive as a means to secure the independence of the legislature and preserve separation of powers.
• The word ‘office’ has not been defined in the Indian Constitution or the Representation of the People Act of 1951. But different courts have interpreted it to mean a position with certain duties that are more or less of public character.

Examples:

• In Jaya Bachchan, the court said it was an office of profit even if one did not actually receive payment; it was enough if some pay was ‘receivable’.
• In Raman v. P.T.A. Rahim, the court said only posts that are capable of yielding pecuniary gains, as distinguished from compensatory allowances, would be offices of profit.