The Governor of Jharkhand was recently appointed as the Governor of Maharashtra.
The Governor left the Raj Bhavan in Ranchi without disclosing the Election Commission’s opinion on whether the current Chief Minister of Jharkhand should be disqualified for allegedly allocating a mining lease to himself when he was the mining and forest minister of Jharkhand.
The EC’s communication to the Governor is confidential, but information from unofficial sources widely believed that the EC had recommended the disqualification of the Chief Minister of Jharkhand.
- However if the Governor had acted upon the EC recommendation, it would have led to immediate political instability in Jharkhand.
- It is now up to the new Governor of Jharkhand to act on the EC’s opinion in this matter.
Under which law the matter was referred to the Election Commission?
- Articles 191 and 192 of the Indian Constitution deal with “Disqualifications for membership” of a state Legislative Assembly or Council, and “Decision on questions as to disqualifications of members” respectively.
- Article 191(1) expresses that “a person shall be disqualified for being chosen as, and for being, a member” of a state House “if he holds any office of profit under the Government of India or the Government of any State…, other than an office declared by the Legislature…not to disqualify its holder”.
- Article 192(1) says that if “any question arises as to whether a member…has become subject to…disqualification…, the question shall be referred for the decision of the Governor and his decision shall be final”.
- Under Article 192(2), “Before giving any decision on any such question, the Governor shall obtain the opinion of the Election Commission and shall act according to such opinion.”
Is the Governor bound to act on the EC’s recommendation?
- Article 192(2) of the Indian Constitution says that the Governor “shall act” according to the EC’s opinion.
- However, it does not lay down a time frame for the Governor to act.
Office of Profit
- Members of Parliament (MPs) and Members of the Legislative Assembly (MLA), as members of the legislature, hold the government accountable for its work.
- Under the Representation of People Act, holding an office of profit is grounds for disqualification.
- The rationality behind the disqualification under the office of profit law is that if legislators hold an ‘office of profit’ under the government, they might influence the government, and may not discharge their constitutional duty.
- Disqualification under “office of profit” ensures that there should be no conflict between the duties and interests of an elected member.
- Disqualification based on the office of profit upholds the principle of separation of power between the legislature and the executive; an essential feature of the Indian Constitution.
- Under Article 102 (1) and Article 191 (1) of the Indian Constitution, an MP or an MLA (or an MLC) is barred from holding any office of profit under the central or state government, but Indian Constitution or any law does not clearly define what constitutes an office of profit, the definition has evolved over the years with various court judgments.
- An office of profit is defined as a position that brings to the officeholder some financial gain, advantage, or benefit.
The Supreme Court ruled that Several questions need to be considered in deciding the matter of office of profit:
- Whether the government is the appointing authority.
- Whether the government has the power to terminate the appointment.
- Whether the government determines the remuneration.
- What is the source of remuneration?
- The power that comes with the position.
Way forward
- In modern polity, the concept of separation of power becomes too thin because the government function becomes so wide that the government can’t work in its limited power which is given to the government.
- We must bear in mind the objective of the disqualification under ‘the office of profit’ is to avoid conflict between the different branches of the state.
The need of the hour is to enact a comprehensive national law to clearly define the ‘office of profit’.
