Office of Profit

The Aam Aadmi Party (AAP) received a morale-boosting reprieve from the Delhi high court, which reinstated 20 MLAs of the party who had been disqualified through a presidential order on the recommendation of the Election Commission of India (ECI).

Disqualification of the members of the legislative assembly (MLAs), on grounds that they held an office of profit as parliamentary secretaries, was in violation of the “principle of natural justice,” a bench comprising justice Sanjiv Khanna and justice Chander Shekhar ruled.

What is an office of profit?

It is a position in the government which cannot be held by an MLA or an MP. The post can yield salaries, perquisites and other benefits. The origin of this term can be found in the English Act of Settlement, 1701. Under this law, “no person who has an office or place of profit under the King, or receives a pension from the Crown, shall be capable of serving as a member of the House of Commons.” This was instituted so that there wouldn’t be any undue influence from the royal household in administrative affairs.

What do parliamentary secretaries do?

In the Westminster system, a parliamentary secretary is a Member of Parliament who assists a Minister in their duties. Prime Ministers and Chief Ministers usually appoint parliamentary secretaries from their own parties.

Why should an MLA or an MP not hold an office of profit?

According to Articles 102(1)(a) and 191(1)(a) of the Constitution, an MP or MLA is barred from holding an office of profit as it can put them in a position to gain a financial benefit. “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,” says the law.

Under the Representation of People Act too, holding an office of profit is grounds for disqualification.

Do other states in India have MLAs holding offices of profit?

West Bengal, Karnataka, Telangana, Nagaland, Meghalaya, Arunachal Pradesh, Punjab, Mizoram and Manipur have had similar incidents. In West Bengal, Telangana and Punjab, the respective High Courts called the appointments “unconstitutional” and struck down the appointments. The case regarding the appointment of parliamentary secretaries is pending in the Karnataka High Court. In Rajasthan, the State passes a Bill in October 2017 to make the posts constitutional, but the validity of this law has been challenged.

Odisha too has appointed MLAs as chairpersons of district planning committees by amending an Act. The Supreme Court struck down The Assam Parliamentary Secretaries (Appointment, Salaries, Allowances and Miscellaneous Provisions) Act, 2004 in July 2017 leading to a wave of resignations in Northeastern states.

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