Constitutional provision for disqualification of membership-The Hindu-27-08-2022

Constitutional provision for disqualification of membership-The Hindu-27-08-2022
Context :
The Election Commission of India has told Jharkhand Governor Ramesh Bais that Chief Minister Hemant Soren should be disqualified as an MLA for violating electoral norms.
Background:
In February 2022, allegations were raised that the current chief minister Hemant Soren had misused his post and allocated a mining plot to himself.
It was alleged that the CM allotted a stone quarry mine of 0.88 acres for himself in Anagda Ranchi, which is against the provisions of the office of profit.
He was accused of violating the Representation of People’s Act, 1951.
In May 2022, the Election Commission sent chief minister Hemant Soren a notice seeking his side of the story.
In response to the EC notice, the CM argued that the clauses of the RPA Act, 1951 under which he was sought to be punished did not apply in this case.
The EC has sent its final report to Jharkhand Governor Ramesh Bais. The Governor has not yet announced his decision or how he proposed to go about executing it.

About Disqualification (Constitutional provisions, ‘Office of Profit’, Legal provisions, etc.)

Article 102 and Article 191 of the Constitution:
102. Disqualification s for membership
(1) A person shall be disqualified for being chosen as, and for being, a member of either House of Parliament
(a) if he holds any office of profit under the Government of India or the Government of any State, other than an office declared by Parliament by law not to disqualify its holder;
(b) if he is of unsound mind and stands so declared by a competent court;
(c) if he is an undischarged insolvent;
(d) if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under any acknowledgement of allegiance or adherence to a foreign State;
(e) if he is so disqualified by or under any law made by Parliament Explanation For the purposes of this clause 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 either for the Union or for such State
(2) A person shall be disqualified for being a member of either House of Parliament if he is so disqualified under the Tenth Schedule
Article 191 in The Constitution Of India 1949
191. Disqualifications for membership
(1) A person shall be disqualified for being chosen as, and for being, a member of the Legislative Assembly or Legislative Council of a State
(a) if he holds any office of profit under the Government of India or the Government of any State specified in the First Schedule, other than an office declared by the Legislature of the State by law not to disqualify its holder;
(b) if he is of unsound mind and stands so declared by a competent court;
(c) if he is an undischarged insolvent;
(d) if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under any acknowledgement of allegiance or adherence to a foreign State;
(e) if he is so disqualified by or under any law made by Parliament Explanation For the purposes of this clause, a person shall not be deemed to hold an office of profit under the Government of India or the Government of any State specified in the First Schedule by reason only that he is a Minister either for the Union or for such State
(2) A person shall be disqualified from being a member of the Legislative Assembly or Legislative Council of a State if he is so disqualified under the Tenth Schedule.
What is the ‘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 various court judgments.
An office of profit has been interpreted to be a position that brings to the officeholder some financial gain, advantage, or benefit. The amount of such profit is immaterial.
In 1964, the Supreme Court ruled that the test for determining whether a person holds an office of profit is the test of appointment.
Several factors are considered in this determination of disqualification are as follows –
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, and
The power that comes with the position.
What is the need for such a concept?

MPs and MLAs, as members of the legislature, hold the government accountable for its work.
The essence of disqualification under the office of profit law is if legislators hold an ‘office of profit’ under the government, they might be susceptible to government influence, and may not discharge their constitutional mandate fairly.
The intent is that there should be no conflict between the duties and interests of an elected member.
Hence, the office of profit law simply seeks to enforce a basic feature of the Constitution- the principle of separation of power between the legislature and the executive.
Other Grounds on which an MLA/MLC can be disqualified:

The Parliament has prescribed a number of additional disqualifications in the Representation of People Act, 1951. Some of these grounds are:
He must not have been found guilty of certain election offences or corrupt practices in the elections.
He must not have been convicted for any offence resulting in imprisonment for two or more years.
He must not have failed to lodge an account of his election expenses within the time.
He must not be a director or managing agent nor hold an office of profit in a corporation in which the government has at least 25 per cent share.
He must not have been punished for preaching and practising social crimes such as untouchability, dowry and sati.
Who has the final authority to disqualify an MLA/MLC?

Under Article 192 of the Constitution, it has been mentioned that if any question arises as to whether or not the member of a house of the legislature of a state has become subject to any of the disqualification criteria, the question shall be cited to the Governor of the state for decision.
The Governor will act as per the opinion of the Election Commission (EC).
His decision shall be final and may not be reviewed by any court of law.