22 January 2018

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Facts Explained What is office of profit and AAP Office of Profit MLA case

Facts Explained What is office of profit and AAP Office of Profit MLA case
The AAP MLAs were appointed as Parliamentary Secretaries and a petitioner in a complaint to the EC and the President in 2015 said that being a parliamentary secretary was holding an office of profit and this invited disqualification.

a lawyer petitioned President Pranab Mukherjee that the 21 MLAs were holding offices of profit and should, therefore, be disqualified. He claimed they were getting monetary compensation.

President Mukherjee sent complaint to the Election Commission, asking for its opinion. The commission issued notices to the MLAs in March 2016.

In response, the AAP passed a Bill amending the Delhi Members of Legislative Assembly (Removal of Disqualification) Act, 1997 to exempt the post of parliamentary secretary from the definition of the “office of profit”. The party maintained that it was not an office of profit since the legislators were not getting “pecuniary benefit”.

But the Bill was rejected by President Mukherjee in June 2016.

In September 2016, the Delhi High Court scrapped the legislators’ appointment as parliamentary secretaries.

The legislators then went to the Election Commission arguing that since the High Court had declared their appointment null and void, the poll panel could not hear a petition against them for holding an office that never existed. The commission did not agree, writing to the President in June last year that the MLAs “did hold de facto the office of parliamentary secretaries” from March 13, 2015 to September 8, 2016.

One of the MLAs, Jarnail Singh, had resigned early last year to contest the Punjab Assembly election, after which proceedings against him were dropped.

in August 2017, the Delhi High Court had refused to entertain AAP MLAs' plea for staying EC's order, upholding maintainability of the petition.

On January 19, 2018 the Election Commission of India recommended to the President of India disqualification of 20 Aam Aadmi Party (AAP) MLAs from Delhi, citing that they held offices of profit.

This recommendation was made to the President is under Article 103 (1) of the Constitution. It is well settled that under Article 103 (1) of the Constitution, the President has jurisdiction to decide only such question of disqualification to which a sitting legislator becomes subject after his election.

Article 102 (1)(A) of the Indian Constitution bars an MP or an MLA from holding any office of profit under the Government of India or in any state other than an office declared by the Parliament by law as not disqualifying its holder.

Indirectly it is compulsory for the President of India to sign, approve the disqualification.

President Ram Nath Kovind on Sunday accepted the recommendation of the Election Commission to disqualify the 20 MLAs of the Aam Aadmi Party (AAP).

A notification issued by the Law Ministry quoted the President as saying, “In the light of the opinion expressed by the Election Commission (EC), the 20 members of the Delhi legislative assembly have been disqualified.”

The Commission said the legislators violated the provisions of the Office of Profit, under which lawmakers cannot hold any post in the government that entitles them to perks or powers unless a law has been passed to exempt the posts.

AAP said it would go to the Supreme Court if need be. The Delhi High Court will hear their appeal on Monday.

AAP legislators, who moved the Delhi High Court on Friday, did not get any interim relief. In September 2016, the court had cancelled the AAP government's order appointing the legislators as parliamentary secretaries as it lacked the approval of the Lieutenant Governor, the administrative head of Delhi.

Below is the list of MLAs who are axed.
1-Alka Lamba
2-Adarsh Shastri
3-Sanjeev Jha
4-Rajesh Gupta
5-Kailash Gehlot
6-Vijendra Garg
7-Praveen Kumar
8-Sharad Kumar
9-Madan Lal Khufiya
10-Shiv Charan Goyal
11-Sarita Singh
12-Naresh Yadav
13-Rajesh Rishi
14-Anil Kumar
15-Som Dutt
16-Avtar Singh
17-Sukhvir Singh Dala
18-Manoj Kumar
19-Nitin Tyagi

Post the notification, the disqualified AAP MLAs cease to be members of the House and can no longer claim their entitlements, including their salary from that day onwards. However, as ex members, they can still access medical benefits and pension facility

EC, which has six months’ time to hold elections to these constituencies, and may declare election dates any time when it wishes. The process will be set in motion if the AAP fails to get a stay either from the High Court or the Supreme Court. In fact, both processes, hearing in court and preparations for elections can happen simultaneously.

Now question is What is Office of Profit?

The English Act of Settlement 1701 and Act of Union 1707 are an early example of this principle. The Act of Settlement provided that -  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

The idea behind the concept of office of profit – which evolved in England – 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.

Office of profit under Indian Constitution -

In 1959, Parliament enacted a law, which has been amended from time to time, specifying offices that would not attract disqualification under the Constitution.
The term office of profit has not been defined in the Constitution.
But, articles 102 (1) and 191 (1) – which give effect to the concept of office of profit -- prescribe restrictions at the central and state level on lawmakers accepting government positions. Any violation attracts disqualification of MPs or MLAs, as the case may be.

According to Article 102 (1) (a), a person shall be disqualified as a member of Parliament for holding 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) has a similar provision for the members of state assemblies.

However, articles 102 and 191 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.

Basic disqualification criteria for an MP are laid down in Article 102 of the Constitution, and for an MLA in Article 191.
They can be disqualified for:
a) Holding an office of profit under government of India or state government;
b) Being of unsound mind;
c) Being an undischarged insolvent;
d) Not being an Indian citizen or for acquiring citizenship of another country

The Supreme Court has held that “an office of profit is an office which is capable of yielding a profit or pecuniary gain.”

Supreme Court in Jaya Bachchan vs Union of India = “For deciding the question as to whether one is holding an office of profit or not, what is relevant is whether the office is capable of yielding a profit or pecuniary gain and not whether the person actually obtained a monetary gain. If the ‘pecuniary gain’ is ‘receivable’ in connection with the office then it becomes an office of profit, irrespective of whether such pecuniary gain is actually received or not... If the office carries with it, or entitles the holder to, any pecuniary gain other than reimbursement of out of pocket/actual expenses, then the office will be an office of profit for the purpose of Article 102 (1)(a) “

Principles of declaring Office of Profit –

Four broad principles have evolved for determining whether an office attracts the constitutional disqualification.

1-whether the government exercises control over appointment, removal and performance of the functions of the office.

2- whether the office has any remuneration attached to it.

3-whether the body in which the office is held has government powers (releasing money, allotment of land, granting licenses etc.).

4-whether the office enables the holder to influence by way of patronage.

USA and Office of Profit –

The U.S. Constitution prohibits a Member of Congress from being appointed to an executive office under two circumstances: if the executive office was created during that Member's term in Congress, or if the compensation for that executive office was increased during that Member's term in Congress. The U.S. Constitution also prohibits an executive officer from being a Member of Congress. Specifically, Article I, Section 6, Clause 2 provides:
No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been increased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.

The U.S. Constitution does not define the term "office of profit". In fact, that term is not even used in the above-mentioned provision. However, the term "office of profit" is referred to in three other provisions.

First, only a person holding an office of honor, an office of trust, or an office of profit, is subject to impeachment and removal from office. Specifically, Article I, section 3, clause 7 provides:
Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

Second, a person holding an office of trust, or an office of profit, is prohibited from receiving presents, emoluments, offices, or titles from foreign powers. Specifically, Article I, section 9, clause 8 provides:
No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince or foreign State.

Third, a person holding an office of trust, or an office of profit, is prohibited from serving as a presidential elector. Specifically, Article II, section 1, clause 2 provides:
Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

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Monday, January 22, 2018

Tags – Facts History Office of Profit India UK USA AAP MLA Disqualify