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Office of Profit: What do Articles 102(1), 191 (1)(A) say ?

By Chennabasaveshwar
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The debate around the office of profit has come to the fore once again after the Election Commission recommended for the disqualification of 20 AAP MLAs. With no clear definition available, we depend on Article 102(1)(A) and 191 (1)(A) for reference.

What do Articles 102(1), 191 (1)(A) say about Office of Profit?

Article 102(1):

(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;

(b) if he is of unsound mind and stands so declared by a competent court;

(c) if he is an undischarged insolvent;

(d) if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under any acknowledgement of allegiance or adherence to a foreign State;

(e) if he is so disqualified by or under any law made by Parliament Explanation.

For the purposes of this clause, 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 either for the Union or for such State

A member of the Indian Parliament barred from holding an office that would give him/her the opportunity to gain a financial advantage or benefit. It refers to a post under central/state government which yields salaries, perks and other benefits. The actual amount of profit gained during the violation has no bearing on its classification.

India had the Parliament (Prevention of Disqualification) Act, 1950, 1951, and 1953 exempting certain posts from being recorded as offices of profit.

All these Acts were replaced by the Parliament (Prevention of Disqualification) Act, 1959. By virtue of section 3 of the said Act, certain offices did not disqualify their holders from being members of Parliament. The law was again amended in 2006.

The representatives cannot hold an office of profit under section 9 (A) of the Representation of People Act and Article 191 (1)(A) of the Constitution also.

Article 191 (1)(A), says, "A person shall be disqualified for being chosen as, and for being, a member of the Legislative Assembly or Legislative Council of a State

(a) if he holds any office of profit under the Government of India or the Government of any State specified in the First Schedule, other than an office declared by the Legislature of the State by law not to disqualify its holder."

In 2006, former Congress President Sonia Gandhi, resigned several posts under pressure from the political opposition who asserted that the posts were 'offices of profit' and thus unlawful. Rajya Sabha MP Jaya Bachchan was disqualified because she was also chairperson of the Uttar Pradesh Film Development Federation. Two Uttar Pradesh Legislative Assembly members, Bajrang Bahadur Singh and Uma Shankar Singh, were disqualified in January 2015 due to holding government contracts.

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