Criteria for determining office of profit
Q. Which of the following are used to decide if an office is ‘office of profit’?
1) Whether the government makes the appointment
2) What the functions of the holder are
3) Whether the government pays remuneration- Published on 16 Jun 16a. 1, 3
b. 1, 3
c. 2, 3
d. All of the above
ANSWER: All of the above
- ‘Office of profit’ is not defined in the Constitution. However, in past judgments, the Election Commission has noted “what constitutes an office of profit under the Government is now well established by a catena of judgments of the Supreme Court.”
- Five tests have been laid down: (i) whether the government makes the appointment; (ii) whether the government has the right to remove or dismiss the holder; (iii) whether the government pays remuneration; (iv) what the functions of the holder are; and (v) does the government exercise any control over the performance of these functions.
- Other broad principles have evolved for determining whether an office attracts the constitutional disqualification - Whether the body in which the office is held has government powers (releasing money, allotment of land, granting licences etc.); whether the office enables the holder to influence by way of patronage.
- EC noted that the Supreme Court, in various cases has held that all the five tests “need not co-exist conjointly for determining whether an office is an office of profit under the government.”
