What is office of profit?

On Friday, a Delhi High Court order set aside the disqualification of its 20 MLAs in an office of profit case. The MLAs are accused of holding offices of profit, as they were appointed parliamentary secretaries to ministers in the Delhi government in March 2015. The term 'office of profit' is used in Article 102 (1)(A) of the Indian Constitution which bars a member of the Indian Parliament from holding an office that would give its occupant the opportunity to gain a financial advantage or benefit. The representatives cannot hold an office of profit under section 9 (A) of the Representation of People Act and Article 191 (1)(A) of the Constitution also. Some States have passed legislations, holding that certain posts do not come under the category of office of profit. 

In the past, in 2006, Indian National Congress President and a Member of Parliament Sonia Gandhi resigned several posts under pressure from political opposition who asserted that the posts were 'offices of profit' and thus unlawful.Jaya Bachchan was disqualified from the Rajya Sabha, while she was also chairperson of the Uttar Pradesh Film Development Federation. Election Commission of India in the Bachchan case held that any post, even if held in an advisory capacity, is an office of profit.  

The Supreme Court had held that disqualification rule applies even if some pay is receivable in respect of an office of profit. But, the disqualified MLAs were elected to office for a full term and the “office of profit” they held ceased to exist in 2016. There is no clarity yet on application of the law, and courts interpret it in each case, based on facts. The disqualification rule can be enforced by the ED if the said office is not that of a Minister or exempted by an Act of Parliament or State legislature.