Office of profit


Office of profit

An office of profit is 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.

Contents

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;

India

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. The political concept behind the law most likely originated in England, and was adopted into the Indian Constitution to prevent a conflict of interest.

In 2006, Indian National Congress President and MP, 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 Council, therefore it was deemed an office of profit.

United Kingdom

In Britain, the principle has been eroded. As a parliamentary system, the executive sits in the legislature, and from the nineteenth century ministries were invariably led by members of the House of Commons. Until 1919, members of parliament who were appointed to ministerial office lost their right to sit in the Commons and had to seek re-election. The rule survives in the House of Commons Disqualification Act 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 tradition, resignation from the House of Commons is impossible. An MP who wishes to resign has first to accept an office of profit under the Crown, thus vacating his seat. Members who wish to retire ask to be appointed to the office of steward or bailiff of Her Majesty’s Chiltern Hundreds of Stoke, Desborough and Burnham, or steward 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, enabling their retirement.

United States of America

The framers of the US Constitution adopted a similar position. The US Constitution provides that "no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office." Similarly, it provides that individuals holding an office of profit or trust under the United States are forbidden, without the consent of the Congress, from receiving any emoluments from the government of a foreign state, and that a person who holds an office of trust or profit under the United States cannot be an elector in presidential elections.

Bibliography

  • Achary, P.D.T. (2006). Law & Practice Relating to Office of Profit. Bharat Law House. ISBN 9788177371147.  This treatment by a Secretary General of the Lok Sabha covers the concept in the Indian and British contexts.

External links


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