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Disqualification of MP or Public Officer for Holding Office of Profit - Under Article 91(1)(d)(viii) of the Sri Lankan Constitution, a person holding an office of profit is disqualified from being elected or sitting as a Member of Parliament. The Court dismissed a petition challenging the disqualification of a Member of Parliament on these grounds, affirming that holding an office of profit can lead to disqualification ["Sri00000007161"].
Disqualification Orders and Duration - Authorities such as the Registrar can pass orders disqualifying officers from holding or contesting elections for a specified period (up to six years) if they are removed under certain conditions, such as misconduct or incapacity. Disqualifications are enforceable for the duration specified in the order, impacting eligibility for office ["Vanrajsinh Harchanji Thakor VS District Registrar - Gujarat"].
Disqualification Due to Misconduct or Non-Compliance - Court and administrative orders can disqualify individuals from office if they fail to comply with statutory requirements or are found guilty of misconduct. Such disqualifications may be for periods like five years, and are based on specific procedural violations or misconduct findings ["Shobha W/o. Arun Nemade VS State of Maharashtra, Through the Secretary, Department of Urban Development - Bombay"], ["Adhyatma Bandhu Gupta VS Division Joint Registrar, Co-Operative Societies - Bombay"].
Disqualification in Local Governance - Elected members disqualified under laws like the 1986 Act are also barred from holding remunerative posts during their term or for a certain period afterward (up to six years). Disqualifications are often linked to violations of election or conduct rules, and can include disqualification from re-election ["Shobha VS State Of Maharashtra - Bombay"].
Disqualification in Election Contexts - Candidates or elected representatives may be declared disqualified if they are involved in criminal cases, absconding, or are not citizens, affecting their eligibility to hold or contest for office. Election commissions may order fresh elections if disqualification is established ["Bechan Tatama VS State of Bihar - Patna"].
No Disqualification for Non-Profit Entities - Entities like non-profit organizations can operate without profit motives, and their financial disclosures or lack of profit do not necessarily lead to disqualification unless linked to misconduct or statutory violations ["IND_BOM00000041348"].
Summary and Main Insight - Declaring someone disqualified when holding office of profit primarily depends on constitutional provisions, statutory laws, and administrative orders. Disqualifications are issued by courts or authorities such as election commissions or registrars, based on misconduct, non-compliance, criminal activity, or holding incompatible offices, with specific durations and conditions ["Sri00000007161"], ["Vanrajsinh Harchanji Thakor VS District Registrar - Gujarat"], ["Shobha W/o. Arun Nemade VS State of Maharashtra, Through the Secretary, Department of Urban Development - Bombay"], ["Shobha VS State Of Maharashtra - Bombay"], ["Bechan Tatama VS State of Bihar - Patna"].

Conclusion:A person holding office of profit can be declared disqualified by courts, election commissions, or administrative authorities when they violate constitutional or statutory disqualification criteria, such as misconduct, criminal activity, or holding incompatible offices, often with specified durations ["Sri00000007161"], ["Vanrajsinh Harchanji Thakor VS District Registrar - Gujarat"], ["Shobha W/o. Arun Nemade VS State of Maharashtra, Through the Secretary, Department of Urban Development - Bombay"], ["Shobha VS State Of Maharashtra - Bombay"], ["Bechan Tatama VS State of Bihar - Patna"].

Who Declares an MLA Disqualified When Holding an Office of Profit?

In the dynamic world of Indian politics, questions about eligibility and disqualification often arise, especially regarding Members of Legislative Assemblies (MLAs). A common query is: Who will declare an MLA disqualified when he holds office of profit? This issue strikes at the heart of constitutional principles designed to prevent conflicts of interest and maintain the integrity of legislative bodies. Holding an office of profit under the government can lead to automatic disqualification unless exempted by law, but who exactly makes that call?

This blog post breaks down the legal framework, procedures, and key authorities involved, drawing from Supreme Court precedents and related judgments. Note: This is general information based on established case law and not specific legal advice. Consult a qualified lawyer for personalized guidance.

Understanding 'Office of Profit' and Disqualification

Under Article 191(1)(a) of the Indian Constitution, an MLA is disqualified if they hold any office of profit under the Government of India or a State Government, unless the State Legislature declares by law that it does not disqualify the holder. This principle ensures legislators remain independent and free from executive influence. Srimati Kanta Kathuria VS Manak Chand Surana - Supreme Court M. Ramappa VS Sangappa - Supreme Court

The term office of profit typically means a position carrying remuneration or benefits, but exemptions exist for roles like ministers or parliamentary secretaries if legislated. Supreme Court rulings emphasize that the disqualification aims to uphold democratic purity. SHRIMANTH BALASAHEB PATIL VS HON’BLE SPEAKER, KARNATAKA LEGISLATIVE ASSEMBLY - Supreme Court Public Interest Foundation VS Union of India - Supreme Court

Procedure for Disqualification: Pre-Election vs. Post-Election

Disqualification can occur at different stages, each with distinct processes:

Pre-Election Disqualification

During nomination scrutiny, if a candidate holds an office of profit, the Returning Officer may reject the nomination outright. This prevents disqualified individuals from contesting. Consumer Education & Research Society VS Union of India - Supreme Court DILE RAM VS TEK CHAND - Himachal Pradesh

Post-Election Disqualification

If an MLA assumes or continues holding such an office after election, the matter is referred to higher authorities for decision.
The seat becomes vacant upon a finding of disqualification. Consumer Education & Research Society VS Union of India - Supreme Court SHRIMANTH BALASAHEB PATIL VS HON’BLE SPEAKER, KARNATAKA LEGISLATIVE ASSEMBLY - Supreme Court

Key Authorities Responsible for Declaration

The Constitution delineates clear roles:

President of India: Final authority under Article 102(1)(a) for parliamentary matters, but relevant for analogous state scenarios. Consumer Education & Research Society VS Union of India - Supreme Court
Governor: The primary authority for state legislative assemblies under Article 191(1). The Governor decides on disqualification questions referred by the Election Commission or Speaker. SHRIMANTH BALASAHEB PATIL VS HON’BLE SPEAKER, KARNATAKA LEGISLATIVE ASSEMBLY - Supreme Court

In practice, the Speaker may initially decide, but judicial review ensures fairness, as seen in landmark cases.

Related Disqualifications in Local Governance

Similar principles extend to local bodies like Panchayats and Municipalities, highlighting a broader anti-corruption framework:

State Election Commission: Can disqualify Panchayat members for failing to submit election expense accounts, barring them for five years. The Collector exercises delegated powers under Section 14B(1) of relevant acts. Shobhabai Narayan Shinde VS Divisional Commissioner, Nashik - Supreme Court
Divisional Commissioner: May reduce or remove such disqualification periods. Vijaymala w/o Navnath Magar VS State of Maharashtra - 2016 Supreme(Bom) 2042 Provided further that, nothing contained in this clause shall affect the member holding office on the 10th January 2011, who has not submitted the certificate within a period of ninety days from the said date... and he shall not be deemed to be disqualified and shall continue to hold his office.
In Maharashtra Village Panchayats, lack of toilet facilities triggers mandatory disqualification under Section 14(1)(j-5). Vijaymala w/o Navnath Magar VS State of Maharashtra - 2016 Supreme(Bom) 2042 The provisions of Section 14(1)(j-5) of the Maharashtra Village Panchayats Act, 1958 are mandatory, and non-compliance can lead to valid disqualification.

Municipal laws also impose disqualifications for unauthorized constructions during tenure. Dattatraya s/o. Adinath Bandgar VS State of Maharashtra - 2009 Supreme(Bom) 421 if at any time during his term of office, he- (e) has constructed or constructs by himself, his spouse or his dependent, any illegal or unauthorised structure...

Under Gujarat Municipalities Act, detention in prison during trial leads to suspension. Bipinchandra Parshottamdas Patel (Vakil) VS State Of Gujarat - 2003 3 Supreme 383 The expression detention in jail during trial as mentioned in second part of Section 40(1) of the Gujarat Municipalities Act, should be interpreted as detention in jail during the process of trial....

These cases illustrate how disqualification mechanisms ensure accountability across governance levels. Javed VS State of Maharashtra - 2009 Supreme(Bom) 211 A Councillor shall be disqualified to hold office as such, if at any time during his term of office... has been convicted by a Court in India of any offence and sentenced to imprisonment for not less than two years...

Supreme Court Insights and Key Findings

The judiciary has consistently upheld these provisions:- Disqualification grounds are clearly defined in the Constitution and statutes. PRadeep Kumar Sonthalia VS Dhiraj Prasad Sahu @ Dhiraj Sahu - Supreme Court- Timing matters: Pre-election by Returning Officer; post-election by Governor/President.- For Panchayats, State Election Commission delegates like Collectors act swiftly. Shobhabai Narayan Shinde VS Divisional Commissioner, Nashik - Supreme Court

In one ruling, the Court clarified that pending disqualification determination, members continue in office until declared otherwise. Chokha Ram VS State of Rajasthan - 2004 Supreme(Raj) 1480 Therefore, pending determination of question of disqualification, a member shall continue to hold his office as if he was not disqualified.

Practical Recommendations for Stakeholders

For Aspiring Candidates: Scrutinize holdings before filing nominations to avoid rejection.
For Sitting MLAs: Seek legislative exemptions or resign from conflicting offices promptly.
Lawyers: Master Articles 102/191, state acts, and precedents for effective representation.
Public: Understand these processes to hold elected officials accountable.

Always consider case-specific nuances, as courts interpret based on facts. Devkant Synthetics India Pvt. Ltd VS Additional/Joint/Deputy/Assistant Commissioner Of Income Tax Offcer - 2023 Supreme(Bom) 194 We hold that there was no basis to hold that there was any failure on the part of the assessee to disclose any material facts fully and truly during the regular assessment proceedings... (Analogous emphasis on full disclosure in legal proceedings).

Conclusion: Upholding Legislative Integrity

In summary, the Governor typically declares an MLA disqualified for holding an office of profit under Article 191, with the President for certain federal overlaps, while Returning Officers handle pre-election checks. Related local body disqualifications reinforce this via Commissions and delegates. These mechanisms, backed by robust Supreme Court jurisprudence, safeguard democracy.

Key Takeaways:- Disqualification is strict but exemptible by law.- Procedures vary by election stage.- Judicial oversight prevents arbitrariness.

Stay informed on evolving case law to navigate these complexities. For tailored advice, reach out to legal experts.

#MLADisqualification #OfficeOfProfit #IndianConstitution

PRINTPLUS PRIVATE LIMITED THROUGH ITS DIRECTOR vs UNION OF INDIA AND 2 ORS

That this Hon’ble Court be pleased to declare that the Operative Guidelines of the Emergency Credit Line Guarantee Scheme, 2020 (at From the aforesaid Chart, it is evident that the net proft upto - Gross NPA Ratio was 6.6% September 2020 in respect of NBFCs is Rs.45,720 crore; however, so far - Gross NPA Ratio was 10.8% - Amount of Net Proft

SMT. AMRITPAL JAGMOHAN SETHI vs HARIBHAU PUNDLIK INGOLE

Notes, Office Memoranda of Coram, appearanfices, Court's orders of direfictions Court's or Judge's_______________________________________________________________________________________ Office ... Consequently at the most, the tenant may be liable to pay the damages or mesne proft only direficting an inquiry into the mesne proft from the the Trial Court has direficted ....

Shobha W/o. Arun Nemade VS State of Maharashtra, Through the Secretary, Department of Urban Development - 2023 Supreme(Bom) 407

Thus, an elected member disqualified under Section 3 (1) (a) of the Act of 1986, is also disqualified to hold remunerative post under Section 3A (1) of the Act of 1986 and the disqualification to hold remunerative post is only till the end of the term or till he contest elections to a local authority ... Section 3A clause (2) is relatable to Section 3 (1) (b) wherein it is provided that if an elected member or a member bel....

Shobha VS State Of Maharashtra - 2023 Supreme(Bom) 823

Thus, an elected member disqualified under Section 3 (1) (a) of the Act of 1986, is also disqualified to hold remunerative post under Section 3A (1) of the Act of 1986 and the disqualification to hold remunerative post is only till the end of the term or till he contest elections to a local authority ... be disqualified to hold any remunerative political post for duration of the period o....

Adhyatma Bandhu Gupta VS Division Joint Registrar, Co-Operative Societies - 2023 Supreme(Bom) 571

Holding thus, the District Deputy Registrar ordered the removal of petitioner Nos. 1 and 2 from office of Chairman and Secretary, respectively, of the Society and further disqualified them from being elected or nominated as an Officer or Member of the committee for a term of five years. ... without any reasonable excuse failed to comply with the same, disqualified for being elected or for being a member of the committee for such period not ....

SHRI. NATHALAL M PAREKH SANATORIUM LONAVALA vs THE JOINT DIRECTOR APPELLATE AUTHORITYEMPLOYEES STATE INSURANCE CORPORATION

there is no contract entered with Navaram Maharaj about any specifc case of the appellant that it has no motive of earning proft ... Employees’ State Insurance Corporation (2015) 1 SCC 142, to the effect that even the non-proft making As far as the contention of the applicant that it was not making any proft

Bechan Tatama VS State of Bihar - 2023 Supreme(Pat) 339

Respondent State Election Commission to hold a fresh election in Ward No. 14 of Gram Panchayat Raj, Bhagwanpur, if on consideration, the Respondent no.8 is declared disqualified to hold the post; (iv) for issuance of any other appropriate writ/writs,order/ orders, direction/directions ... The petitioner has preferred the present petition for following reliefs:— (i) for declaring the Respondent no.8 disqualified to #HL_STAR....

Devkant Synthetics India Pvt. Ltd VS Additional/Joint/Deputy/Assistant Commissioner Of Income Tax Offcer - 2023 Supreme(Bom) 194

We hold that there was no basis to hold that there was any failure on the part of the assessee to disclose any material facts fully and truly during the regular assessment proceedings and further that reassessment proceedings are nothing but a change of opinion. ... It is stated that after considering the purchase costs and other business expenditures, the petitioner reported a proft before tax of Rs.63,68,739/- in its Proft#HL_EN....

Vijaymala w/o Navnath Magar VS State of Maharashtra - 2016 Supreme(Bom) 2042

Provided further that, nothing contained in this clause shall affect the member holding office on the 10th January 2011, who has not submitted the certificate within a period of ninety days from the said date, as required under the provisions of this Act, as amended by the Bombay Village Panchayats and Maharashtra Zilla Parishads and Panchayat Samitis (Second Amendment) Act, 2010 (Mah. XXXIII of 2010); and he shall not be deemed to be disqualified and shall continue to hold his offic....

Dattatraya s/o. Adinath Bandgar VS State of Maharashtra - 2009 Supreme(Bom) 421

if at any time during his term of office, he- (e) has constructed or constructs by himself, his spouse or his dependent, any illegal or unauthorised structure violating the provisions of this Act, or the Maharashtra Regional and Town Planning Act, 1966 or the rules or bye laws framed under the said Acts; or has directly or indirectly been responsible for, or helped in his capacity as such Council for in, carrying out such illegal or unauthorised construction or has by written communication or ....

Javed VS State of Maharashtra - 2009 Supreme(Bom) 211

A Councillor shall be disqualified to hold office as such, if at any time during his term of office, he .(a) ii) made by the legislature of the State of Maharashtra; or): .(a) has been convicted by a Court in India of any offence and sentenced to imprisonment for not less than two years, unless a period of five years or such lesser period as the State Government may allow in any particular case, has elapsed since his release; or) (aa) has at any time after the commencement of....

Chokha Ram VS State of Rajasthan - 2004 Supreme(Raj) 1480

Therefore, pending determination of question of disqualification, a member shall continue to hold his office as if he was not disqualified. Thus, it is held that until a declaration as provided under proviso to sub-section (2) of Section 39 of the Act of 1994 is made, a member shall continue to hold his office and, he or she, as the case may be, does not cease to be member of Panchayati Raj Institution and he/she continues to hold his/her office as it he/she was not disqualif....

Bipinchandra Parshottamdas Patel (Vakil) VS State Of Gujarat - 2003 3 Supreme 383

The last paragraph of Section 40 of the Act uses the expression "under the provisions of any law for the time being in force" makes the legislative intent manifest that the provision is intended to cover detention in prison during trial under provisions of any law including the Criminal Procedure Code. The Division Bench of the High Court of Gujarat was of the view that the object of Section 40 of the Act is also apparent that where the criminal proceedings of the nature described in Section 4....