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What is Office-of-Profit? - Coggle Diagram
What is Office-of-Profit?
Why in news?
Under Section 9A of the Representation of the People Act, 1951
CM could face disqualification for entering into a government contract
ECI has sent a notice to Jharkhand CM over an office-of-profit charge against him
What is ‘Office of Profit’?
The intent is that there should be no conflict between the duties and interests of an elected member.
The Constitution of India does not define the Office of Profit.
The origin can be traced to the English Act of Settlement, 1701
It has only mentioned it under Article 102 (1) and Article 191 (1).
A position that brings to the person holding it some financial gain, or advantage, or benefit.
What governs the term?
Legislators can face disqualification for holding such positions, which bring them financial or other benefits
Article 102 (1) and Article 191 (1) of the Constitution, an MP or an MLA (or an MLC) is barred from holding any office of profit under the Central or State government
It does not clearly define what constitutes an office of profit
Parliament (Prevention of Disqualification) Act, 1959, bars an MP, MLA or an MLC
Factors constituting an ‘office of profit’
The amount of such profit is immaterial.
There are conflict of duties
Definition has evolved over the years with interpretations made in various court judgments
Separation of power is compromised
1959 law does not clearly define what constitutes an office of profit
What are the Related Judgments of the Supreme Court?
2001: Kartar Singh Bhadana vs Hari Singh Nalwa & others
1964: CVK Rao vs Dentu Bhaskara Rao
Options to Jh CM
The adjudication has to be completed within four months
Under Article 164 (4), one person can be a minister for six months without being a member.
CM can challenge it in the high court
What is the ‘test of appointment’?
whether the government determines the remuneration,
what is the source of remuneration, and
whether the government has the power to terminate the appointment,
the power that comes with the position
whether the government is the appointing authority,