Hemant Soren, the chief minister of Jharkhand, is facing accusations of violating the office-of-profit rule. The Election Commission of India has reportedly conveyed its opinion regarding Soren’s disqualification for breaking electoral law by giving himself a mining lease to Jharkhand Governor Ramesh Bais, according to reports.
What is ‘Office of Profit’?
As members of the legislature, MPs and MLAs hold the government accountable for its actions. The essence of the office of profit law is that if legislators hold a ‘office of profit’ under the government, they may be vulnerable to government influence and may not discharge their constitutional mandate fairly. The intention is that there should be no conflict between an elected member’s duties and interests. As a result, the office of profit law merely seeks to enforce a fundamental feature of the Constitution. The separation of powers between the legislative and executive branches.
The law does not clearly define what constitutes a profit-making office, but the definition has evolved over time as a result of interpretations made in various court decisions. An office of profit has been defined as a position that provides the officeholder with a financial gain, advantage, or benefit.
The amount of such profit is insignificant. The Supreme Court ruled in 1964 that the test for determining whether a person holds a profit-making office is the test of appointment.
Office of profit in the constitution
An MP or an MLA (or an MLC) is prohibited from holding any profit-making office in the central or state governments under Articles 102 (1) and 191 (1) of the Constitution. The articles state that “a person shall not be deemed to hold an office of profit under the government of India or the government of any state by reason only that he is a minister”.
Articles 102 and 191 also protect a legislator who holds a government position if the office in question is immune from disqualification by law. Parliament has also passed the Parliament (Prevention of Disqualification) Act, 1959, which has been amended several times to broaden the list of those who are exempt.
In light of three Supreme Court decisions, CM will be disqualified under Section 9A of the Representation of Peoples Act, 1951.
A contract must be made under that section for the supply of goods or the execution of any work undertaken by the government.
In the case of CVK Rao vs Dentu Bhaskara Rao, a Supreme Court constitution bench ruled in 1964 that a mining lease does not constitute a contract of supply of goods.
In the case of Kartar Singh Bhadana vs Hari Singh Nalwa & others, a three-judge bench of the Supreme Court made it clear in 2001 that a mining lease does not constitute the execution of a work undertaken by the government.
Even if the CM is disqualified by any authority, he can challenge it in the high court, and in that case, the adjudication must be completed within four months, according to a Supreme Court order. Article 164 (4) allows a minister to serve for six months without being a member.