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Ill blows the wind that profits nobody

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Why the concept of `office of profit' is so important and has universal appeal

D. Murali

`Office of profit' is the topic top on news. Political parties are avidly feeding on the fresh arsenal, and sound-bytes rage on between the pots and the kettles. The Constitution of India, 1950, uses `office of profit' in Article 18, on `Abolition of titles'. Clause (3) stipulates that no person who is not a citizen of India shall, while he holds any office of profit or trust under the State, accept without the consent of the President any title from any foreign State.

And Clause (4) says, "No person holding any office of profit or trust under the State shall, without the consent of the President, accept any present, emolument, or office of any kind from or under any foreign State."

The next set of occurrences is in Article 58, on `Qualifications for election as President'. While the first Clause in this Article has a bunch of three conditions "is a citizen of India, has completed the age of thirty-five years, and is qualified for election as a member of the House of the People," the second Clause reads, "A person shall not be eligible for election as President if he holds any office of profit under the Government of India or the Government of any State or under any local or other authority subject to the control of any of the said Governments."

NO DISQUALIFICATION

Explanation at the end of the Article clarifies what is not a disqualification: "A person shall not be deemed to hold any office of profit by reason only that he is the President or Vice-President of the Union or the Governor of any State or is a Minister either for the Union or for any State."

Article 59 on `Conditions of President's office' says, "The President shall not hold any other office of profit." Similar taboo applies to the Vice-President too, in Article 64, and the Governor, in Article 158. What is of immediate interest should be Article 102 on `Disqualifications for membership'. It declares that a person shall be disqualified for being chosen as, and for being, a member of either House of Parliament "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; if he is of unsound mind... "

You'd find essential material on

http://rajyasabha.nic.in

, in a section titled `Membership of Rajya Sabha'. It informs that the phrase `office of profit under the Government' occurring in Article 102 has not been defined in the Constitution or any other statute of Parliament.

"Its scope and ambit have, therefore, to be gathered from the pronouncements of courts and other competent authorities," notes the site and lists four criteria that are generally followed when deciding disqualification questions.

THE SHIBU SOREN CASE

Deciding the Shibu Soren case in July 2001, the apex court explained the rationale of the bar.

It said: "Both Articles 102(1)(a) and Article 191(1)(a) of the Constitution were incorporated with a view to eliminate or in any event reduce the risk of conflict between duty and interest amongst Members of the Legislature so as to ensure that the concerned legislator does not come under an obligation of the Executive, on account of receiving pecuniary gain or profit from it, which may render him amenable to influence of the Executive, while discharging his obligations as a legislator."

Soren's election to Rajya Sabha in June 1998 was set aside by that verdict because he was holding `an office of profit' under the State Government as chairman of the Interim Jharkhand Area Autonomous Council set up under the JAAC Act, 1994, at the time of his filing `nomination papers'.

The concept is of key importance, which is why a simple search on

http://indiacode.nic.in

yields many an Act with `office of profit'.

For example, the Manipur (Hill Areas) District Councils Act, 1971, states that a person shall be disqualified for being chosen as a member of a District Council "if he is for the time being disqualified for being chosen as a member of either House of Parliament or holds any office of profit under any District Council."

The Companies Act, 1956 speaks of `office or place of profit'. Section 204(5) explains that any office or place in a company shall be deemed to be an office or place of profit under the company "if the person holding it obtains from the company anything by way of remuneration, whether as salary, fees, commission, perquisite, the right to occupy free of rent any premises as a place of residence."

UNIVERSAL APPEAL

The concept has universal appeal. For instance, Article 35 of the US Constitution mentions the phrase. "An office to which fees, a salary or other compensation is attached, is ordinarily an office of profit," defines

www.elections.state.md.us

, and cites Moser vs Board of County Comm'rs, a four-decade-old US case, when explaining the Article. "The amount received is immaterial since it is the presumably adequate compensation derived from the office that fixes the character of the office as one of profit."

From Down Under is the Parliamentary Members (Office of Profit) Amendment Act, 1999. It was brought in to amend the Legislative Assembly Act 1867 and the Officials in Parliament Act 1896, as one learns from

www.legislation.qld.gov.au

.

"A member is not to be taken to be entitled to a fee or reward if the member irrevocably waives for all legal purposes the entitlement to the fee or reward," it says. It is clarified that `fee or other reward' does not include "reasonable expenses actually incurred by or for the member for any one or more of the following accommodation; meals; domestic air travel; taxi fares or public transport charges; and motor vehicle hire."

Listening to the spurt of principles talk in the realm of politics, one remembers what the Bard wrote in

King Henry VI

: "Ill blows the wind that profits nobody".

To Jaya Bachchan, though, a line that is apt is from

Macbeth

: "Profit again should hardly draw me here."

ZeroBase@TheHindu.co.in

(This article was published in the Business Line print edition dated March 8, 2006)
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