Recently, The Election Commission of India (ECI) has recommended the disqualification of Jharkhand Chief Minister Hemant Soren as an MLA from the state’s assembly. The ECI had replied to Jharkhand governor Ramesh Bais who sought the commission’s opinion over a complaint received by the opposition BJP that the state’s CM should be disqualified since he allegedly holds an office-of-profit by getting a stone chips mining lease in his own name.
Brief facts of the case are that Soren has allegedly allocated a mining lease to himself which, if implemented, would have been used to set up a stone quarry in that area. However, trouble mounted for the Jharkhand CM in the month of February 2022, when former CM and senior BJP leader Raghubar Das accused Soren of allotting the mining lease for a stone quarry, which was spread over 0.88 acres in Ranchi’s Angara block, to a company held by himself in May 2021, and getting it cleared by the Gram Sabha in June 2021 itself, his company receiving the environmental clearance for the project in September 2021 as well. It is worth mentioning that the CM holds two important portfolios- forest environment & climate change, and mining & geology by himself.
In a petition being submitted to Jharkhand governor Ramesh Bais in February 2022, the opposition BJP sought the CM’s disqualification, based on the provisions of Section 9A of The Representation of the People Act. 1951. This is the primary reason why the state’s governor has sought the opinion of the commission on this issue.
In India, the office of profit rule which could disqualify a leader was taken from Britain and made its appearance for the first time in the Morley-Minto reforms of 1909. The main idea behind the term was that the legislators should need not be vulnerable to temptations that the executive could offer. The framers of the Constitution thoroughly incorporated Articles 102(1) and 191(1) of the Indian Constitution, prescribing the restrictions at central as well as state levels, in order to deal with disqualification of the Members of Parliament as well as State Legislature respectively.
Keeping in mind the fact that the term “office of profit” has not been defined anywhere in the Constitution, however, there was no such confusion regarding its meaning. Even members of the Constituent Assembly had no doubts about its importance in order to ensure a clean political atmosphere. In fact, the issue of disqualification was duly discussed and debated extensively in the Interim Parliament.
WHAT IS AN OFFICE OF PROFIT?
The law does not clearly define what constitutes an office of profit, but the definition has evolved over the years with interpretations made in the form of various court judgments. An office of profit has been interpreted to be a position that brings to the office-holder financial gain, advantage, or some benefit. It is important to mention that the amount of such a profit is immaterial in such cases.
As per Section 9A of the Representation of People Act, 1951, “A person shall be disqualified if, and for so long as, there subsists a contract entered into by him in the course of his trade or business with the appropriate Government for the supply of goods to, or for the execution of any works undertaken by, that Government.”
Section 9 of the Representation of People Act deals with dismissal from a legislative forum for corruption or disloyalty. Bharatiya Janata Party (BJP), the primary opposition party in the state of Jharkhand, has alleged that Soren had used his influence being a mining and forests minister to obtain a stone chip mining lease in the year 2021. As per BJP, the same was a blatant violation of the office-of-profit rule.
In the year 1964, the Supreme Court ruled that the test for determining whether a person holds an office of profit would be the test of appointment. Several factors are to be considered in order to determine the same including factors such as:
(i) whether the government is the main appointing authority
(ii) whether the government has the power to terminate such an appointment
(iii) whether the government determines the remuneration of that appointment
(iv) what is the source of remuneration provided, and
(v) the power that comes with that particular position.
Considering the fact that the constitutional position could lead to the initiation of disqualification proceedings on a large scale, the Centre appointed a committee in the year 1954 for a law which could determine positions that do not come under the concept of the office of profit. In 1959, the Parliament (Prevention of Disqualification) Act was validated listing the offices of the central and the state governments for the same purpose. The number of offices being exempted has only increased since. Several other states also have also enacted similar sorts of laws in order to prevent disqualifications.
NOTABLE DISQUALIFICATIONS & THE ROLE OF JUDICIARY
With the absence of a clear definition of what office of profit actually is, the same has been left for the hon’ble courts to interpret in a better manner. In most cases, the Apex Court has tried to see whether there is a conflict between the duties and the interests of the executives, i.e., the lawmakers. Many legislators have been appointed as parliamentary secretaries on a regular basis and are given the de-facto status of junior ministers in order to overcome the Constitutional bar of not having more than 15% of the legislative strength as ministers in most states. In some states, the high courts have termed such inclusion of parliamentary secretaries in the category of exceptions as unconstitutional. “The appointment of members of the assembly as parliamentary secretaries was a clear attempt to bypass the constitutional limit on the number of ministers”, said the Calcutta High Court in a judgement pronounced in the year 2015.
When talking about some prominent disqualifications, in 2004, Rajya Sabha MP Jaya Bachchan from Samajwadi Party was disqualified due to her appointment as the chairperson of the Uttar Pradesh Film Development Council. It was held by the Supreme Court that getting a driver, car as well as an accommodation amounted to remuneration from the government even though she didn’t get any money from the council.
Also, in the year 2006, the BJP delegation sought disqualification of the interim Congress president Sonia Gandhi from Lok Sabha on the grounds that she was holding an office of profit as the chairperson of the National Advisory Council (NAC). Due to the allegations, she resigned from the Lok Sabha, re-contested elections, and got elected once again. However, during the meantime, the National Advisory Council (NAC) was included in the exemption list.
To conclude, it could be said that even though Soren seeking a mining lease from the department he was in charge of may not strictly fall under the office of profit rule, the opposing BJP has sought his disqualification under Section 9A of the Representation of People’s Act, adding that he “misused” his official position for getting the mining lease, the allegations Soren has completely rejected.
Just a few days back, the Election Commission has recommended disqualifying Soren for the charges levelled against him to Jharkhand Governor Ramesh Bais. In case of disqualification, the Jharkhand Mukti Morcha (JMM) leader would have to resign along with his whole cabinet. However, he can return as the state’s Chief Minister by either winning the by-elections on his own seat or getting re-elected from another seat, with a condition that he isn’t barred from contesting the elections itself due to the charges.