Office of Profit and Conduct Rules

What do Articles 102 and 191 say?

Article 102(1)(a) covers Members of Parliament. It disqualifies anyone who holds an office of profit under the Government of India or a State Government. Article 191(1)(a) covers State legislators in the same way.

Both articles have an exception. The office may be one that a law says will not disqualify its holder. A Minister is also not treated as holding an office of profit only for being a Minister.

Does the Constitution define the term?

No. PRS India says the law does not clearly define it. Courts read it as a post that brings the holder some financial gain, advantage or benefit. The amount of profit does not matter.

Why have this rule?

Legislators hold the government to account. A legislator with a government post may bend to government influence. The rule aims to stop a clash between a member’s duty and interest.

Who decides?

Article 103 sends the question to the President. The decision is final. But the President must first obtain the Election Commission’s opinion and act on it. Article 192 gives the Governor the same role for State legislators.

What are the five tests?

The Supreme Court set out tests in Guru Gobinda Basu (1964) and Shivamurthy Swami Inamdar (reported 1971). It asks five questions:

• Does the Government make the appointment?
• Can the Government remove or dismiss the holder?
• Does the Government pay the remuneration?
• What are the holder’s functions, and does he perform them for the Government?
• Does the Government control how those functions are done?

The Constitution Bench said these factors need not all be present. The decisive test is the test of appointment.

What did Pradyut Bordoloi decide?

Pradyut Bordoloi v Swapan Roy was decided on 12 December 2000. It was an Article 191 case from Assam. Swapan Roy was a clerk in Coal India Ltd, a Government company. The President of India had no power over appointment, removal or discipline below Board level. The High Court held that the clerk held no office of profit. The Supreme Court agreed.

Why was a municipal accountant not disqualified?

Ashok Kumar Bhattacharyya v Ajoy Biswas was decided on 15 November 1984. Ajoy Biswas was Accountant-in-charge of Agartala Municipality in Tripura. The Court held he held no office of profit under the Government of Tripura. A local authority is a separate body. Article 58(2) names local authorities for the Presidential election. Article 102(1)(a) does not.

Why was Jaya Bachchan disqualified?

Jaya Bachchan was a Rajya Sabha member. On 14 July 2004 Uttar Pradesh made her Chairperson of the Uttar Pradesh Film Development Council. The post carried the rank of a Cabinet Minister. It brought a monthly honorarium of Rs 5,000, a staff car with driver, and free housing and medical care. The President disqualified her. A three-judge bench dismissed her petition on 8 May 2006.

What rule did the Court state?

The key is whether the gain is “receivable”. It does not matter whether the holder actually received it. She called the post decorative and said she took no benefits. The Court said that did not matter, even if she was affluent.

What is the 1959 Act?

The Parliament (Prevention of Disqualification) Act, 1959 is Act 10 of 1959. Section 3 lists offices that do not disqualify an MP. They include Ministers, Whips and Parliamentary Secretaries.

How did Parliament respond in 2006?

Parliament acted fast. The amendment Bill was introduced on 16 May 2006. The President returned it on 30 May 2006 under Article 111. Parliament passed it again. It became Act 31 of 2006 on 18 August 2006. It added the Chairperson of the National Advisory Council. Some of its new exemptions applied from 4 April 1959. On 24 August 2009 the Supreme Court upheld the law in Consumer Education and Research Society v Union of India.

Was it amended again?

Yes. Act 28 of 2013 was passed on 20 September 2013. It exempted the Chairpersons of the National Commissions for Scheduled Castes and for Scheduled Tribes.

What was the issue?

In March 2015 Delhi made a group of Aam Aadmi Party MLAs parliamentary secretaries to ministers. Twenty of them faced disqualification, accused of holding offices of profit. In September 2016 the High Court ruled against the appointments. The Election Commission gave its opinion on 19 January 2018. The President then disqualified the MLAs.

What did the Delhi High Court do?

On 23 March 2018 a bench headed by Justice Sanjiv Khanna set the opinion aside. It called the opinion bad in law for failing to follow natural justice. It asked the Commission to hear the MLAs again.

Which law applied?

The Delhi case rested on Section 15(1)(a) of the Government of National Capital Territory of Delhi Act, 1991. It was not Article 191. The Court ruled on fair procedure. It did not settle whether the posts were offices of profit.

Why are parliamentary secretaries controversial?

PRS India notes that the Calcutta High Court in 2015 saw such posts as a way to bypass the cap on ministers. Article 164(1A) limits ministers to 15 per cent of the Assembly.

Who follows which rules?

Conduct rules govern how officials behave in service. Central civil servants follow the Central Civil Services (Conduct) Rules, 1964. Members of the All India Services, such as the IAS and IPS, follow the All India Services (Conduct) Rules, 1968.

What do they ask on integrity?

CCS Rule 3(1) says every Government servant must at all times maintain absolute integrity and devotion to duty. The list also includes high ethical standards, honesty and political neutrality. AIS Rule 3 says much the same.

What about politics?

CCS Rule 5(1) bars a Government servant from being a member of any political party. He may not be associated with any body that takes part in politics. He may not take part in, or assist, any political movement or activity. AIS Rule 5(1) says the same for its members.

How are gifts handled?

CCS Rule 13 bars gifts, save as the rules allow. A “gift” includes free transport, boarding or lodging from anyone other than a near relative or a personal friend with no official dealings. A casual meal or lift is not a gift. Officers should avoid lavish or frequent hospitality from firms that deal with them. AIS Rule 11 is similar.

Can an officer do private business?

Not without sanction. CCS Rule 15(1) bars a Government servant from trade, business or other employment without the Government’s previous sanction. AIS Rule 13 says the same.

What about property?

CCS Rule 18(1) asks for a return of assets and liabilities on first appointment. Group A and B officers also file an annual return of immovable property. AIS Rule 16(1) asks for a similar first return.

How do the two systems differ?

The office of profit rule disqualifies a legislator. The President or Governor decides, and courts review it. Conduct rules guide civil servants. Both aim to keep personal interest out of public duty.