Office of profit

An office of profit means a position that brings to the person holding it some financial gain, or advantage, or benefit. It may be an office or place of profit if it carries some remuneration, financial advantage, benefit etc.

It’s a term used in a number of national constitutions to refer to executive appointments. A number of countries forbid members of the legislature from accepting an office of profit under the executive as a means to secure the independence of the legislature and preserve the separation of powers.

Origin

The English Act of Settlement 1701 and Act of Union 1707 are an early example of this principle. The Act of Settlement provided that

no person who has an office or place of profit under the King, or receives a pension from the Crown, shall be capable of serving as a member of the House of Commons;

Australia
Further information: Section 44 of the Constitution of Australia § (iv) Office of profit under the Crown

Section 44(iv) of the Constitution of Australia provides that anyone who holds an "office of profit under the Crown" is disqualified from sitting in or being elected to Federal Parliament. This provision has been subject to interpretation by the High Court of Australia, sitting as the Court of Disputed Returns. In 2018, the Court of Disputed Returns introduced a two-limbed test to determine whether an office was "under the Crown":[1]

  • An office is "under the Crown" if appointment is made "at the will of the executive government of the Commonwealth or of a State", even if the government does not control the office-holder's tenure or remuneration
  • If appointment is not made "at the will" of the government, an office is still "under the Crown" if the government exercises "effective control over holding or profiting from the office"

India

Law

The term 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. It refers to a post under central/state government which yields salaries, perks and other benefits. The actual amount of profit gained during the violation has no bearing on its classification. India had the Parliament (Prevention of Disqualification) Act, 1950, 1951, and 1953 exempting certain posts from being recorded as offices of profit. All these Acts were replaced by the Parliament (Prevention of Disqualification) Act, 1959. By virtue of section 3 of the said Act, certain offices did not disqualify their holders from being members of Parliament.[2] The law was again amended in 2006.[3]

The representatives cannot hold an office of profit under section 9 of the Representation of People Act and Article 191 (1)(a) of the Constitution also.[4]

Instances

In 2006, Indian National Congress President and a Member of Parliament Sonia Gandhi resigned several posts under pressure from the political opposition who asserted that the posts were 'offices of profit' and thus unlawful.[3]

Jaya Bachchan was disqualified from the Rajya Sabha, while she was also chairperson of the Uttar Pradesh Film Development Federation.[3]

Two Uttar Pradesh Legislative Assembly members, Bajrang Bahadur Singh and Uma Shankar Singh, were disqualified in January 2015 due to holding government contracts.[4]

January 19, 2018: President Ram Nath Kovind accepted the Election Commission’s recommendation to disqualify 20 MLAs of Delhi’s ruling Aam Aadmi Party for holding offices of profit.[5]

United Kingdom

In the United Kingdom, the principle has been eroded. The executive sits in the legislature, and from the nineteenth-century ministries were invariably led by Members of Parliament or Peers.

Until 1919, Members of Parliament who were appointed to ministerial office lost their right to sit in the House of Commons and had to seek re-election in a ministerial by-election.

The rule survives in the House of Commons Disqualification Act 1975 which specifies a number of state positions that make an individual ineligible to serve as a Member of Parliament.

The last vestige of the rule can be seen through the process of resignation from the House of Commons. By virtue of a resolution of the House of Commons of 1624, no MP can resign his or her seat. An MP who wishes to resign has first to accept an office of profit under the Crown, thus vacating their seat. Members who wish to retire ask to be appointed to the office of Crown Steward and Bailiff of the Chiltern Hundreds, or Crown Steward and Bailiff of the Manor of Northstead.

While these ancient posts have no responsibilities attached to them, they fulfill the requirements of the law and disqualify members from sitting in Parliament, enabling their retirement.

United States

The U.S. Constitution prohibits a Member of Congress from being appointed to an executive office under two circumstances: if the executive office was created during that Member's term in Congress, or if the compensation for that executive office was increased during that Member's term in Congress (but see the Saxbe fix). The U.S. Constitution also prohibits an executive officer from being a Member of Congress. Specifically, Article I, Section 6, Clause 2 provides:

No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.

The U.S. Constitution does not define the term "office of profit." In fact, that term is not even used in the above-mentioned provision. However, the term "office of profit" is referred to in three other provisions.

First, only a person holding an office of honor, an office of trust, or an office of profit, is subject to impeachment and removal from office. Specifically, Article I, section 3, clause 7 provides:

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

Second, a person holding an office of trust, or an office of profit, is prohibited from receiving presents, emoluments, offices, or titles from foreign powers. Specifically, Article I, section 9, clause 8 provides:

No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince or foreign State.

Third, a person holding an office of trust, or an office of profit, is prohibited from serving as a presidential elector. Specifically, Article II, section 1, clause 2 provides:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

Bibliography
  • Achary, P.D.T. (2006). Law & Practice Relating to Office of Profit. Bharat Law House. ISBN 978-81-7737-114-7. This treatment by a Secretary General of the Lok Sabha covers the concept in the Indian and British contexts.
gollark: 0 is ethically neutral.
gollark: A number with an ethicality greater than 0.
gollark: 197 took an early lead in badness with an ethicality of -7.
gollark: That's 12 ethical, as opposed to 4846, which is only 8 ethical.
gollark: I think we have 58588 now. Or 58558 or something.

References
  1. "Office of profit under the Crown". Parliament of Australia. Retrieved 30 November 2018.
  2. "Office of profit and disqualification". The Hindu. 14 April 2006. Retrieved 1 February 2015.
  3. Standard, Business (31 May 2006). "Business Standard". Business Standard. Retrieved 1 February 2015.
  4. "Disqualification of 2 UP MLAs in OOP cases historic". dna. 30 January 2015. Retrieved 1 February 2015.
  5. http://www.thehindu.com/news/cities/Delhi/president-disqualifies-20-aap-mlas/article22485453.ece
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