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TNPSC GROUP 1 CHALLENGE-OFFICE OF PROFIT


OFFICE OF PROFIT

President Ram Nath Kovind on Thursday dismissed a petition to disqualify 27 Aam Aadmi Party (AAP) members of the Delhi legislative assembly for allegedly holding offices of profit after being appointed as chairpersons of Rogi Kalyan Samitis (patient welfare committees) attached to various city hospitals. The decision, based on a recommendation by the Election Commission of India (EC), comes as a moral boost to the ruling AAP government. Rogi Kalyan Samiti (Patient Welfare Committee) / Hospital Management Committee is a simple yet effective management structure. This committee, a registered society, acts as a group of trustees for the hospitals to manage the affairs of the hospital. It consists of members from local Panchayati Raj Institutions (PRIs), NGOs, local elected representatives and officials from Government sector who are responsible for proper functioning and management of the hospital / Community Health Centre / FRUs. RKS / HMS is free to prescribe, generate and use the funds with it as per its best judgement for smooth functioning and maintaining the quality of services. The commission in its recommendation said that the position comes under the exempted category. “...It is observed that the office of chairperson in Rogi Kalyan Samiti in hospitals of GNCTD (government of national capital territory of Delhi) falls under the exempted category as per item 14 of the Schedule of the Delhi Members of Legislative Assembly (Removal of Disqualification) Act-1997 and therefore this commission opines that the respondents are not disqualified for holding office of profit," the commission said in its opinion dated 10 July.

What is Office of Profit?

• Articles 102(1) and 191 (1) mention disqualifications on the basis of Office of Profit in the Parliament and state legislature respectively. Under article 102 (1) a person shall be disqualified for being chosen as and for being a member of the Parliament if:

o he holds any office of profit under the Union or state government (except that of a minister or any other office exempted by state legislature),

o he is of unsound mind and stands so declared by a court,

o he is an undischarged insolvent,

o he is not a citizen of India or has voluntarily acquired the citizenship of a foreign state or is under any acknowledgement of allegiance to a foreign state, and

o if he is so disqualified under any law made by Parliament.

• Article 191 (1) provides similar disqualifications for the members of the state legislative assemblies and councils.

• According to Article 192, on the question whether a member has become subject to any of the above disqualifications, the governor’s decision is final. However, he should obtain the opinion of the Election Commission and act accordingly.

• The recommendations of ECI are binding on the President or Governor regarding the issues related to article 102 (1) & article 191 (1).

• The Parliament has prescribed a number of additional disqualifications in the Representation of People Act (1951). These are similar to those for Parliament. These are mentioned here:

o He must not have been found guilty of certain election offences or corrupt practices in the elections.

o He must not have been convicted for any offence resulting in imprisonment for two or more years. But, the detention of a person under a preventive detention law is not a disqualification.

o He must not have failed to lodge an account of his election expenses within the time.

o He must not have any interest in government contracts, works or services.

o He must not be a director or managing agent nor hold an office of profit in a corporation in which the government has at least 25 per cent share.

o He must not have been dismissed from government service for corruption or disloyalty to the state.

o He must not have been convicted for promoting enmity between different groups or for the offence of bribery.

o He must not have been punished for preaching and practicing social crimes such as untouchability, dowry and sati.

Disqualification on Ground of Defection • The Constitution also lays down that a person shall be disqualified for being a member of either House of state legislature (Article 191(2)) and Parliament (Article 102 (2)) if he is so disqualified on the ground of defection under the provisions of the Tenth Schedule.

• The question of disqualification under the Tenth Schedule is decided by the Presiding officer of the house (Speaker in case of Lok Sabha and Chairman in case of Rajya Sabha).

• In 1992, the Supreme Court ruled that the decision of Chairman/Speaker in this regard is subject to judicial review.

• But it is neither defined in the constitution nor under Representation of People’s Act.

• Supreme Court in Pradyut Bordoloi vs Swapan Roy (2001), the Supreme Court outlined the following questions for the test for office of Profit:

o Whether the government makes the appointment;

o Whether the government has the right to remove or dismiss the holder;

o Whether the government pays the remuneration;

o What are the functions of the holder and does he perform them for the government; and

o Does the government exercise any control over the performance of those functions

• Further in Jaya Bacchan v. Union of India case in 2006 SC defined it as “an office which is capable of yielding a profit or pecuniary gain.” thus it is not the actual ‘receipt’ of profit but the ‘potential’ for profit that is the deciding factor in an ‘office of profit’ case.

• Provisions of Articles 102 and 191 protect a legislator occupying a government position if the office in question has been made immune to disqualification by law.

• Parliament has also enacted the Parliament (Prevention of Disqualification) Act, 1959, which has been amended several times to expand the exempted list of office of profit.

• There is no bar on how many offices can be exempted from the purview of the law.

Joint Committee on offices of profit:

• It consists of 15 members drawn from both the houses of Parliament with ten members from Lok Sabha and five members from Rajya Sabha.

• It examines the composition and character of the Committees appointed by the Central and State Governments and recommends what offices should or should not disqualify a person for being, a member of either House of Parliament.

• It has defined Office of Profit as:

o Whether the holder draws any remuneration, like sitting fee, honorarium, salary, etc. other than Compensatory allowance.

o Whether the body in which an office is held, exercises executive, legislative

or judicial powers or confers powers of disbursement of funds, allotments of lands, issue of licences, etc., or gives powers of appointment, grant of scholarship, etc.

o Whether the body in which an office is held wields influence or power by way of patronage. •