All about the Office of Profit

So What is the concept of ‘office of profit’?

MPs and MLAs, as members of the legislature, hold the government accountable for its work. The essence of disqualification under the office of profit law is if legislators holds an ‘office of profit’ he/she might be under some fear or favour.

The intent is that there should be no conflict between the duties and interests of an elected member.

Hence, the office of profit law simply seeks to enforce a basic feature of the Constitution- the principle of separation of power between the legislature and the executive.

According to the definition, what constitutes an ‘office of profit’?

The law does not clearly define what constitutes an office of profit. The definition has evolved over the years with interpretations made in various court judgments.

An office of profit is a position that brings to the office-holder some financial gain, advantage, or benefit. The amount of such profit is immaterial.

So In 1964, the Supreme Court ruled that the test for determining whether a person holds an office of profit is the test of appointment.

Several factors are considered in this determination including factors such as:

Firstly, whether the government is the appointing authority.
Secondly, whether the government has the power to terminate the appointment.
Thirdly, whether the government determines the remuneration.
fourthly, what is the source of remuneration?
& Lastly, the power that comes with the position.

So 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 because it can put them in a position to gain a financial benefit.

“This condition conditions will disqualify an MP or MLA:-

(a) if he holds any office of profit under the Government of India or the Government of any State, other than some exception offices.”

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