Office of Profit Crisis
Office of Profit means any office that finds its origin as appointment by government and imparts a special position and/ or benefits to that person. This term has reference in Indian Constitution under article 102 (1)(A) and 191 along with this the representatives cannot hold an office of profit under section 9 (A) of the Representation of People Act.
How EC or courts decide whether an MP or MLA has profited from an office:
- In Pradyut Bordoloi vs. Swapan Roy case court has provided a test to decide whether any office falls under office of Profit or not.
- The criteria involve questions like
Whether the government makes the appointment; whether the government has the right to remove or dismiss the holder; whether the government pays the remuneration; what are the functions of the holder; does he perform them for the government; and does the government exercise any control over the performance of those functions?
Hence, we can say that court checks it rationally that whether that office bearer gets benefit for holding that position.
Underlying principle for including ‘office of profit’ as criterion for disqualification: We can say that it is incorporated to maintain impartiality within government as there are chances of respective government will use this power to please their party's legislators who didn't get chance to become minister due to ceiling on its number.
So, to maintain separation of power which is basic feature of Indian constitution the legislators should be debarred from holding office of Profit.
Why office of profit attracts disqualification:
The object of the provision is to secure independence of the MPs and to ensure that Parliament does not contain persons who have received favors or benefits from the executive and who consequently might be amenable to its influence. So, the provision has been made in order to eliminate or reduce the risk of conflict between duty and self-interest among MPs. This provision is thus designed to protect the democratic fabric of the country from being corrupted by executive patronage and also secures the independence of MPs from the influence of the Government so that they discharge their functions without fear or favor.
Doctrine of colorable legislation says what an organ is prohibited from it cannot do it otherwise e.g. recent case of disqualification of 20 AAP MLAs. It is constitutional law that puts restrain on number of ministers and executive is not supposed to bypass it by creating paralegal posts specially when it has no authority to do so.