Constitutional Democracy of India

4. What is an office of profit?

Office of profit was defined by the supreme court in Jaya Bachchan v. union of India,(2006) as an “office which is capable of yielding a profit or pecuniary gain… If the pecuniary gain is receivable in connection with the office, then it becomes an office of profit, irrespective of whether such pecuniary gain is actually received or not.” Earlier in Satrucharla‟s case, (AIR 1992, SC 1959) provided the following criteria to judge whether a person held an office of profit or not. These were:

(1)The mere control of the government over the authority having the power to appoint, dismiss or control the working of the officer employed by such authority does not disqualify the concerned officer from being a candidate for election as a member of legislature

(2)The payment from out of the government revenues is an important factor in determining whether a person is holding an office of profit or not of the government.

(3)The incorporation of a body corporation and entrusting the functions to it by the government may suggest that the statute intended it to be a statutory corporation independent of the government. But it is not conclusive on the question whether it is really so independent. Sometimes the form may be that of a body corporate independent of the government, but in substance,it may be just the alter ego of the government itself.

(4)The true test of determination of the said question depends upon the degree of control the government has over it, the extent of control exercised by other bodies or committees, and its composition, the degree of its dependence on the government for its financial needs and financial aspect.

Our constitution provides for an indirect election through an electoral college consisting of the elected Members of parliament and elected members of the state legislative Assemblies.( Article 54).However, the election is characterized by the following features:

1. One man one vote system is not operational here as is the case in the general elections; 

2. First pass the post system is also not adopted to decide the outcome of elections to the office as is the principle followed in the general elections; 

3. Uniformity of scales in the representation, to the extent possible, between the states and parity between the centre and the states as a whole in the election to this office is ensured; 

4. Election is held in accordance with proportional representation system and 

5. Election is held by single transferable vote and the voting is by secret ballot. 

6. Election of the President can be held even if some seats are vacant in the electoral college. 

7. Elected members of the legislative Assembly kept under animated suspension are eligible to cast their vote and 

8. Presidential election must be held before the expiration of the term of office of the president.

It follows from the above features, that the manner of election of the president is made such as to make the incumbent represent the larger than 50 percent voters and that both the union and the states should be in a balanced position as far as the influence on presidential elections is concerned. How is this balance achieved? This is achieved through assigning almost equal weight to the votes of the all the elected MPs and of all the elected MLAs this is sought through a formulae as stated below:

The quotient is to be further divided by 1000. If the remainder of the quotient is not less than 500, then one vote shall be added to the total number of votes of the MLA.

Example: suppose the population of the state of Punjab is 13551060. The number of elected seats in the Punjab legislative Assembly is 117. Then the number of votes assigned to each elected MLA in Punjab would be : 

13551060 divided by 117. This comes to 115821.0256. This would further be divided by 1000 which comes to 115.8210256 ie.,116. Thus each MLA in Punjab will have a right to cast 116 votes. 

Votes of each elected member of the parliament is = total number of votes assigned to the MLAs of the states divided by total number of elected MPs. Fractions of one-half are counted as one. 

Though a number of members of the constituent Assembly raised their voice in favour of direct election to the presidential office, ultimately the decision to hold indirect election to this post was adopted. The reasons influencing the decision favouring indirect election to the post of president were :

1. In a country following a cabinet system of government, the office of the titular chief executive is a technical one which requires specific competence for the performance of its duties from the incumbent. Very few voters across the country can be competent to judge wisely of the technical abilities of the candidates for any particular office of this type, having specific, limited and defined functions; 

2. If the direct elections of the president were adopted, the presidential candidate who has to carry on an election campaign from one corner of the country to the other will certainly be put by some party or the other, which may cause political excitement and generate party feelings. Thus the man elected to the presidential office through this means will never be able to forget his party affiliation. So the ideal of getting a non-party man outside the turmoil of party passions and reasonably respected by all factions to assume the role of Head of the state will be defeated. Further, as India is almost a sub-continent with crores of enfranchised citizens, it would be impossible to provide an electoral machinery for the purpose of smooth and successful presidential election ;

3. A directly elected chief executive may not be content with his position of a mere constitutional Head and can claim to derive his authority directly from the people. So, if he wanted to assume real powers, it would lead to a constitutional deadlock and an inevitable clash with the cabinet or the real executive. This would definitely produce a confusion of responsibility; 

4. The election by the proposed electoral college would meet more or less the demand for a wider representative character of the presidential incumbent. The inclusion of all the elected MLAs all over the country and all the elected MPs has made his election more broad based, as he is the representative in this fashion of the nation. Further, it has an advantage of investing the president with greater moral independence and authority which would not have been possible had he been a man virtually elected by the majority party in parliament; 

5. Each citizen of India is represented in the parliament and in the legislative Assemblies in the states. So, the President does not represent any one constituency in the country, but all sections of the people of India.

Article 55(3) of the constitution provides for the election of the president through proportional representation system by means of single transferable vote. The objective behind this decision was to ensure an effective share to the minority electors also in the election to the office of the president by giving every division of opinion among the electors corresponding representation in the election process. In the traditional first pass the post or straight voting system of election, a person elected as president may not really represent the majority of the electors; he may get much less number of votes than the votes caste together to all the other candidates. For example, if there were four (A,B,C,D) candidates in the race for presidential office and the number of votes secured under the traditional first pass the post system was as follows:

A. 15000 

B. 14500 

C. 7000 and 

D. 5000

In this case, A would have been declared as elected, even though the total votes cast in favour of B,C and D ( 26500) far outnumbered the votes of A. Instead of this, in proportional representation, a winning candidate shall have to obtain a quota that is determined on the basis of total valid votes cast divided by the number of seats to filled plus one and the quotient to be further added with one. In the case of the president of India, a winning candidate shall have to accordingly obtain fifty percent plus one vote of the total valid votes cast. In the above example of 41500 total valid votes cast, the candidate to win the race would require 41500 divided by 1+1 and again adding 1 to the quotient. Thus a candidate will have to secure20751 votes to be declared as elected to the office of the president. In the end it may be stated that the nature of the composition of the presidential electoral college has made him „the golden thread of federal relationship. In the context of the recently emerging federal trends of the Indian constitutional system and the radical changes in the political scene after 1967, the presidential office is pregnant with possibilities of far reaching consequences and even as the actual balancing wheel of our federal polity‟. The election of the president can be challenged in the supreme court within 30 days of the publication of the declaration of result by any candidate contesting the election or any 25 electors jointly.