Office of Profit

Syllabus subtopic: Indian Constitution- historical underpinnings, evolution, features, amendments, significant provisions and basic structure.

News: President Ram Nath Kovind has rejected a petition demanding disqualification of 11 AAP MLAs belonging to the Aam Aadmi Party for allegedly holding the office of profit. The decision of the President to reject the plea is based on an opinion rendered by the Election Commission.

Prelims focus: About office of profit and its conditions

Mains focus: Criticisms and controversies and ways to address them.

About the issue

1. In March 2017, a petition was filed before the President seeking disqualification of the lawmakers claiming that they were enjoying office of profit by being co-chairpersons of district disaster management authorities in 11 districts of Delhi.
2. The issue was referred to the Election Commission which gave an opinion in August this year that holding the office of co-chairperson of a district disaster management authority does not attract disqualification as MLA since there is no remuneration by way of salary and allowances.
3. As per law, the President accepts the opinion of the Election Commission in cases of office of profit.

About the ‘office of profit’?

• If an MLA or an MP holds a government office and receives benefits from it, then that office is termed as an “office of profit”.

• A person will be disqualified if he holds an office of profit under the central or state government, other than an office declared not to disqualify its holder by a law passed by Parliament or state legislature.

Criteria to disqualify an MP or MLA?

Basic disqualification criteria for an MP are laid down in Article 102 of the Constitution, and for an MLA in Article 191. They can be disqualified for:

a) Holding an office of profit under government of India or state government;

b) Being of unsound mind;

c) Being an undischarged insolvent;

d) Not being an Indian citizen or for acquiring citizenship of another country.

What is the underlying principle for including ‘office of profit’ as criterion for disqualification?

Makers of the Constitution wanted that legislators should not feel obligated to the Executive in any way, which could influence them while discharging legislative functions. In other words, an MP or MLA should be free to carry out her duties without any kind of governmental pressure. The intent is that there should be no conflict between the duties and interests of an elected member.

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.

Controversies:

1. The expression “office of profit” has not been defined in the Constitution or in the Representation of the People Act, 1951.
2. It is for the courts to explain the significance and meaning of this concept. Over the years, courts have decided this issue in the context of specific factual situations.
3. But, articles 102 (1) and 191(1)which give effect to the concept of office of profit prescribe restrictions at the central and state level on lawmakers accepting government positions.

Role of Judiciary:

The Supreme Court in Pradyut Bordoloi vs Swapan Roy (2001) outlined the four broad principles for determining whether an office attracts the constitutional disqualification.

1. First, whether the government exercises control over appointment, removal and performance of the functions of the office
2. Second, whether the office has any remuneration attached to it
3. Third, whether the body in which the office is held has government powers (releasing money, allotment of land, granting licenses etc.).
4. Fourth, whether the office enables the holder to influence by way of patronage.

The Supreme Court, while upholding the disqualification of Jaya Bachchan from Rajya Sabha in 2006, had said that for deciding the question as to whether one is holding an office of profit or not, what is relevant is whether the office is capable of yielding a profit or pecuniary gain and not whether the person actually obtained a monetary gain.

Syllabus subtopic: Government policies and interventions for development in various sectors and issues arising out of their design and implementation.

News: The Punjab and Haryana High Court has directed the Centre and the states of Punjab and Haryana, as well as the Union Territory of Chandigarh, to implement ‘The Transplant of Human Organs and Tissues Act, 1994’ in letter and spirit, and to also consider the recommendations of an Expert Committee set up to give suggestions for an effective implementation of the law.

Prelims and mains focus: Key features of the act, recommendations made by the committee and issues associated with organ transplants.

Background:

The 1994 Act governs the transplantation of human organs and tissues in India, including the donation of organs after death.

In May 2019, the PGIMER was asked to constitute a committee of doctors for deliberations over the subject, and to submit a report containing measures to promote cadaver donations.

Key Recommendations made by the committee:

1. Create a National Registry of Donors, and a biometrics-based authentication of donors and recipients.
2. A database of all surgeons and medical experts sanctioned for the transplantation should also be maintained.
3. It recommended that the identity of the donor and the recipient be verified through a biometric system of authentication to prevent fabrication of identity or other fraud in the process.
4. All hospitals engaged in transplantation procedures must invest in a biometric system linked to the national database of Aadhaar and PAN numbers.
5. Mandatory informed consent should be taken in case of live donors after explaining to them the risks involved in donation surgery.
6. A right be given to the donor to withdraw consent any time before the surgery.
7. It has suggested a ‘wait period’ or cooling period to allow rethinking on the part of the live donor.
8. A lumpsum monetary reimbursement should be given to the donor towards expenses related to the transplantation, and suggested a payment of at least Rs 50,000 at the time of discharge.
9. It has also called for a system to provide for medical insurance of the donor, and also for their post surgical needs.

Remarks of the Committee about government institutions and awareness process?

Stating that the process of organ donation and consent involves religious beliefs, social taboos and certain apprehensions by the relatives, the Committee has said there needs to be the involvement of certified NGOs and religious bodies to create positive awareness.

It has said that government hospitals and transplant centres should be given priority attention to improve the deceased organ donation, and that measures should be taken to prevent the trend of employing visiting surgeons at private centres in violation of practice registration norms.

Syllabus subtopic: Bilateral, regional and global groupings and agreements involving India and/or affecting India’s interests.

News: First ever ‘BIMSTEC Ports’ Conclave will be held at Visakhapatnam in Andhra Pradesh.

Prelims and Mains focus: BIMSTEC- members, objectives, significance and need for reforms.

Significance:

• The Conclave will explore the possibility of increasing economic cooperation by furthering EXIM trade and coastal shipping.
• It will also discuss various investment opportunities, best practices adopted for productivity and safety at Ports.

About BIMSTEC

In an effort to integrate the region, the grouping was formed in 1997, originally with Bangladesh, India, Sri Lanka and Thailand, and later included Myanmar, Nepal and Bhutan.

BIMSTEC, which now includes five countries from South Asia and two from ASEAN, is a bridge between South Asia and Southeast Asia. It includes all the major countries of South Asia, except Maldives, Afghanistan and Pakistan.

Importance of the region

1. The Bay of Bengal is the largest bay in the world. Over one-fifth (22%) of the world’s population live in the seven countries around it, and they have a combined GDP close to $2.7 trillion.
2. Despite economic challenges, all the countries in the region have been able to sustain average annual rates of economic growth between 3.4% and 7.5% from 2012 to 2016.
3. The Bay also has vast untapped natural resources. One-fourth of the world’s traded goods cross the Bay every year.

India’s stakes:

1. As the region’s largest economy, India has a lot at stake. BIMSTEC connects not only South and Southeast Asia, but also the ecologies of the Great Himalayas and the Bay of Bengal.
2. For India, it is a natural platform to fulfil our key foreign policy priorities of ‘Neighborhood First’ and ‘Act East’.
3. For New Delhi, one key reason for engagement is in the vast potential that is unlocked with stronger connectivity. Roughly one-quarter of India’s population, live in the four coastal states adjacent to the Bay of Bengal (Andhra Pradesh, Orissa, Tamil Nadu, and West Bengal). And, about 45 million people, who live in landlocked Northeastern states, will have the opportunity to connect via the Bay of Bengal to Bangladesh, Myanmar and Thailand, opening up possibilities in terms of development.
4. From the strategic perspective, the Bay of Bengal, a funnel to the Malacca straits, has emerged a key theatre for an increasingly assertive China in maintaining its access route to the Indian Ocean.
5. Besides, as China mounts assertive activities in the Bay of Bengal region, with increased submarine movement and ship visits in the Indian Ocean, it is in India’s interest to consolidate its internal engagement among the BIMSTEC countries.

Syllabus subtopic: Security challenges and their management in border areas; linkages of organized crime with terrorism.

News: President Ram Nath Kovind has given his assent to the ‘Gujarat Control of Terrorism and Organised Crime (GCTOC) Bill’, controversial anti-terror legislation passed in March 2015

Prelims focus: Key features of the law.

Mains focus: Controversial provisions, concerns associated and ways to address them.

Background:

The Bill, earlier named as the Gujarat Control of Organised Crime Bill, failed to get the presidential nod thrice since 2004. Now, Sixteen years after the first version of it was passed by the Gujarat Assembly, the Gujarat GCTOC has finally become law.

Controversial provisions in the Bill:

1. The Bill provides for admissibility of evidence collected through interception of mobile calls of an accused or through confessions made before an investigating officer, in a court of law.
2. Clause 16, which makes confessions before police officers admissible in court.
3. The bill empowers police to tap telephonic conversations and submit them in court as evidence.
4. It extends period of probe from stipulated 90 days to 180 days before filing of charge sheet.
5. The legislation makes offences under the Gujarat Control of Terrorism and Organised Crime Act, 2015, non-bailable.
6. The Bill provides immunity to the State government from legal action.

Other provisions :

• It defines ‘terrorist acts’, as including “an act committed with the intention to disturb law and order or public order or threaten the unity, integrity and security of the State”, apart from economic offences.
• The economic offences under GCTOC include Ponzi schemes, multi-level marketing schemes, and organised betting. It also includes extortion, land grabbing, contract killings, cybercrimes, and human trafficking.
• It also provides for the creation of a special court as well as the appointment of special public prosecutors.
• It provides for attachment of properties acquired through organised crimes. Transfer of properties can also be cancelled.