Introduction

In India, the concept of ‘office of profit’ disqualifying the holder was imported from Britain
and it made its appearance for the first time in the act of 1909, which embodied the Morley-
Minto reform proposals.1 The basic idea was and remains that the legislators should not be
vulnerable to temptation an executive can offer. The framers of the constitution thoughtfully
incorporated article 102 (1) and 191 (1), prescribing the restrictions at the Central and State
levels. In the Indian Constitution Art.102 and Art.191 deals with disqualification of members
of Parliaments and state legislature respectively.2

Art.102 (1) (a) provides for the disqualification of the membership of either house of
parliament and it reads as follows:-

“102. Disqualification 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;”3

There is a similar provision in the constitution for the disqualification of membership of

legislative assembly that is art.191 (1) (a).

A perusal of the above provision shows that three elements which are sine qua non for
attracting the above provision are that the person concerned must hold an office -

(1) Under the Government of India or any State;

(2) The office should be an ‘office of profit’ and

(3) The office should be other than an office declared by parliament by law not to disqualify
its holder Article 102(1)(a) corresponds to Article 191(1)(a) of the Constitution of India
which lays down similar disqualifications for being chosen as or for being a member of the
Legislative Council or Assembly of a State4.

1
Jain, prof. M. P. , Indian Constitution Law, 6th editon, (lexisnexis, 2010)
2
Kafaltiya, Anand Ballabh; DEMOCRACY AND ELECTION LAWS, (Deep & Deep Publication Pvt. Ltd.,2003)
3
P.M Bakshi, THE CONSTITUTION OF INDIA. p.113.
4
Jain, M. P. INDIAN CONSTITUTIONAL LAW, Sixth Edn, (2010). P.33

1
The expression “office of profit” has not been defined in the Constitution or in the
Representation of the People Act, 1951. Its ambit has to be inferred only from
pronouncements of courts and other competent authorities, like the Election Commission and
the President. The object of the provision is to secure independence of members of
parliament and do not contains persons who have received favours or benefits from the
executive and who consequently being under an obligation to executive, might be amenable
to its influence.

Aim(s) and Objective(s)

To understand the definition of profit of office and position in India. And also understand the
Rationale for the disqualification for holding an Office of Profit. And also throw light on the
findings of joint parliamentary committee.

Research Question

Why office of profit is disqualification for the member of any house of parliament and how it
effects democracy and constitutionalism.

Literature Review

M P Jain, “INDIAN CONSTITUTIONAL LAW”, 7th ed. 2014, LexisNexis.

This book is an authoritative, evergreen classic on Indian constitutional law. It presently in its
seventh edition, is a thematic presentation of the complex and multi-dimensional subject of
Constitutional law in a lucid, comprehensive and systematic manner. The book contains in-
depth insights of the research topic. It entails all the necessary case laws with its judgment
relating to amendment. Its topic on judicial review helps researcher a lot in framing
conclusion. It bestows the researcher immense literature dealing with the topic.

2
Durga Das Basu, “COMMENTARY ON THE CONSTITUTION OF INDIA”, 8th ed. 2008,
LexisNexis, Nagpur.

This book contains a classic commentary of the Constitution. It provided the researcher with
important cases relating to the amending powers. These cases have been proved to be very
essential in evaluating the judicial pronouncement of this right. However, this book does not
contain any theoretical framework on the amendments but still it proves to an essential asset
in completing the research article.

Kailash Rai, “THE CONSTITUTIONAL LAW OF INDIA”, 10th ed. 2011, Central Law
Agency, Allahabad.

This book is a compendium of all the Articles under the Constitution. This book contain Article
which deals with amendment. It has beautifully define the meaning of same topic with relevant
case law. Topic of constitutional safe guards helps research a lot in understanding the right of
detaining person. It also entails a body of relevant case laws directly relating to the topic.

Research Methodology

For this project titled, ‘profit of office” the doctrinal method was judged to be most appropriate.
Primary resources referred to in the course of research include books, journals, law reports and
cases, most of them accessed from the NLUJAA law library. Other sources like articles, and
the like were accessed online through the use of online databases.

3
RATIONALE FOR THE DISQUALIFICATION FOR HOLDING AN OFFICE OF PROFIT

The underlying concept behind these two articles is the principle of separation of power
between the functionaries of a state like legislative, judiciary and executive. The principle of
separation of powers enjoins that the three organs of the government- the executive, the
legislature and the judiciary should be separate from each other. This is to ensure the isolation,
immunity or independence of one branch of government from the actions or interference of
another and to ensure checks and balances. The object of enacting Articles 102(1)(a) and
191(1)(a) is that there should not be any conflict between the duties and interests of an elected
member and to see that such an elected member can carry on freely and fearlessly his duties
without being subjected to any kind of governmental pressure, thereby implying that if such an
elected person is holding an office which brings him remunerations and if the Government has
a voice in his functions in that office, there is every likelihood of such person succumbing to
the wishes of the Government. These Articles are intended to eliminate the possibility of such
a conflict between duty and interest so that the purity of legislature is unaffected5. The true
principle behind this provision in Article 102(1) (a) is that there should not be any conflict
between the duties and the interest of an elected member.6

Article 102(1) (a) of the Constitution says that a person shall be disqualified for being chosen
as, and for being, a Member of either House of Parliament: • if he holds any office of profit
under the Government (Centre or state) other than an office declared by Parliament by law not
to disqualify its holder. • An office of profit need not necessarily confer pecuniary benefit; it is
sufficient if it bestows administrative and executive powers.

This provision is thus designed to protect the democratic fabric of the country from being
corrupted by executive patronage and also secures the independence of MPs from the influence
of the Government so that they discharge their functions without fear or favour. The
presumption is that if a legislature receives benefits from the Executive than he may not be able
to independently scrutinize the actions of the Government. The provision is thus designed to
protect the democratic fabric of the country from being corrupted by executive patronage. It
ensures that the parliament does not contain persons who may be obligated to the government
and be amenable to it influence because they are receiving favours and benefits from it.

5
Satrucharla Chandrasekhar Raju v.Vyricherla Pradeep Kumar Dev and another. AIR1992 SC 1959
6
Ashok Kumar Bhattacharyya v. Ajoy Biswas and Otrs. AIR 1985 SC 211.

4
“OFFICE OF PROFIT” POSITION IN INDIA

The term ‘office of profit’ is not defined nowhere in the constitution and it left on the judiciary
to interpret the term, the term ‘profit’ means some pecuniary gain attached to the office.
Supreme Court in India in plethora of cases gives guideline to consider whether a given office
is an office of profit or not.

These guidelines are:-

The remuneration which the persons gets while holding the office must not be compensatory
in nature that it is not like that enabling him to carry out day to day expenses. This sum should
not be considered as accruing any profit to the holder. This test is upheld by the Supreme Court
in case of Ravabba Subanna vs. G. S. Kaggeerappa.7 The word 'profit' connotes the idea of
pecuniary gain. If there is really a gain, its quantum or amount would not be material; but the
amount of money receivable by a person in connection with the office he holds may be material
indicating whether the office really carries any profit…".8

In case of Chandrasekhar Raju v. Vyricherla Pradeep Kumar Dev and another9 the Supreme
Court after examining a catena of authorities, it was opined:

“(1) The power of the Government to appoint a person in office or to revoke his appointment
at its discretion. The mere control of the Government over the authority having the power to
appoint, dismiss, or control the working of the office employed by such authority does not
disqualify that officer from being a candidate for election as a member of the Legislature.

(2) The payment from out of the Government revenues are important factors in determining
whether a person is holding an office of profit or not of the Government. Though payment from
a source other than the Government revenue is not always a decisive factor.

(3) The incorporation of a body corporate 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 just be the alter ego of the Government itself.

7
AIR1954 SC 653.
8
Shivamurthy Swami vs. Agadi Sanganna Andanappa. (1971)3 SCC 870.
9
AIR1992 SC 1959

5
(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 very other bodies or committees,
and its composition, the degree of its dependence on the Government for its financial needs
and the functional aspect, namely, whether the body is discharging any important
Governmental function or just some function which is merely optional from the point f view
of the Government."10

Supreme Court in case of Shivamurthy Swami vs. Agadi Sanganna Andanappa11 said the test
which may be applied to determine whether an office is “office of profit” under the state
government thus:-

“(1) whether the Government makes the appointment;

(2) whether the Government has the right to remove or dismiss the holder;

(3) whether the Government pays the remuneration;

(4) what are the functions of the holder and

(5) Does the Government exercise any control over the performance of those functions?”12

The Supreme Court has justified this judgment and applied it in case of Surya Kant Roy v.
Imamul Hai Khan13 in this case the main contention was whether the chairman of a Board
under the Bihar and Orissa Mining Settlement Act, 1920 can be considered as holding an office
of profit. The Court noticed the tests laid down in Shivamurthy Swami's case14 and observed
that the Government did not pay the remuneration nor did the holder of the office perform his
functions for the Government and, therefore, he could not be said to hold an office under the
State Government.

In case of M.Ramappa v. Sangappa and Ors.15 Supreme Court observed that "Patels and
Shanbhogs who are the holders of hereditary village offices governed by the Mysore Village
Offices Act, 1908 are officers who are appointed to their offices by the Government though it
may be that the Government has no option in certain cases but to appoint an heir of the last
holder; that they hold their office by reason of such appointment only, that they work under the

10
AIR1992 SC 1959 p.1964
11
(1971) 3 SCC 870.
12
(1971)3 SCC 870, p.875 para.14.
13
AIR1975 SC 1053
14
(1971)3 SCC 870.
15
AIR1958 SC 937.

6
control and supervision of the Government; that their remuneration is paid by the Government
out of Government funds and assets; and that they are removable by the Government, and that
there is no one else under whom their offices could be held."

In case of Maulana Abdul Shakur vs. Rikhab Chand and others16 it was held that the a Manager
of a School run by a Committee of Management formed under the provisions of the Dargah
Khwaja Saheb Act, 1955 does not hold any ‘office of profit’ by applying the test that the
concerned candidate was neither appointed by the Government of India nor was he removable
by it. It was also found that his salary was not fixed or paid by the Government but that the
same was paid out of the funds of the Dargah endowment. Further in case of Gurugovinda Basu
v. Sankari Prasad17 Supreme Court said that the office under the government does not
necessarily means service of government. If the government has power to appoint, power to
dismiss, the power to control and give directions as to the manner in which the duties of the
office are to be performed, and the power to determine the question of remuneration then also
it can be said that the office is an ‘office of profit’ under the government.

The problem arises in the form, in which the gain is given suppose it may be in the form of
honorarium, remunerations, salary etc. but in case of Shibu Soren vs. Dayanand Sahay & Ors18
it was held by the Supreme Court that it is the substance not the form which matters and even
the quantum or amount of “pecuniary gain” is not relevant. In this case petitioner held his office
'at the pleasure' of the State Government. As Chairman of the Interim Council he was receiving
an honorarium of Rs. 1750/- per months; Daily allowance at the rate of Rs. 150/- per day for
the period spent outside the headquarters besides traveling expenses as prescribed; Daily
allowance at the rate of Rs. 120/- per day for attending meetings of the interim council;
Furnished rent free accommodation (quarters) and A car with Driver. Therefore court held that
the petitioner is holding an office of profit. It was further held that it is the substance and not
he form which matters and even the quantum or amount of "pecuniary gain" is not relevant -
what needs to be found out is whether the amount of money receivable by the concerned person
in connection with the office he holds, gives to him some "pecuniary gain", other than an

16
AIR1958 SC 52.
17
AIR 1964 SC 254
18
AIR 2001 SC 2583.

7
'compensation' to defray his out of pocket expenses, which may have the possibility to bring
that person under the influence of the executive, which is conferring that benefit on him.

The second report of the Joint Committee on office of profit of the 14th Lok Sabha, the
committee had clearly held that "the facilities of an office room with telephone/fax/Internet,
personal assistant and a staff car provided" to a MP are not covered under the "Compensatory
allowance" and as such the holder of office would entail disqualification for being chosen as
or for being a Member of Parliament.19

Recently Supreme Court in case of Jaya Bachan v. Union of India (UOI) and Ors.20 declared
that the post of Chairperson of Uttar Pradesh Film Development Council that is held by the
petitioner as ‘office of profit’ because as the Chairperson of Uttar Pradesh Film Development
Council the petitioner is entitled to

(i) Honorarium of Rs. 5,000/- per month;

(ii) Daily allowance @ Rs. 600 per day within the State and Rs.750/- outside the State. Rs.
10,000/- per month towards entertainment, expenditure.

(iii) Staff car with driver, telephones at office and residence, one P.S., one P.A. and two class
IV employees.

(iv) Body Guard and night escort.

(v) Free accommodation and medical treatment facilities to her and family members.

(vi) Free accommodation in government circuit houses/guest houses and hospitality while on
tour.

But in this case the main contention which raised by the petitioner was that the post of
Chairperson of the Council, and the conferment of the rank of Cabinet Minister, were only
"decorative"; that she did not receive any remuneration or monetary benefit from the State
Government; that she did not seek residential accommodation, nor used telephone or medical
facilities; that though she travelled several times in connection with her work as Chairperson,
she never claimed any reimbursement; and that she had accepted the Chairpersonship of the
Council honorary and did not use any of the facilities. Therefore the petitioner never had any
intention to take benefit from these.

19
2nd report of joint committee on office of profit of the 14th Lok Sabha at para.13.
20
2006 (5) SCALE 511.

8
But this contention of petitioner is not maintainable because Supreme Court in case of Divya
Prakash v. Kultar Chand Rana and Anr.21 said that the test to be applied in these conditions is
“It is whether he can sue for or otherwise claim the scale of pay fixed by the resolution of the
Board.”22 Court also held that “it is not matter whether the person is taking the salary or not
when entitled to that salary.” And in the case of Jaya Bachan she was clearly entitled for that
money.

It is also necessary to bear in mind that the Government is undertaking several projects and
activities including commercial activities through the corporations and local bodies exercising
some control over such corporations or bodies. In that view of the matter they may come within
the meaning of the "State” envisaged in Article 12 but that may not be a decisive factor in
deciding the issue.23 As it is clear from the above discussion that the person must holds an
office under the government. Now the question arises what is an ‘office’ or which is considers
being an ‘office’?

21
AIR 1975 SC 1067.
22
AIR 1975 SC 1067, p.1069 para.4.
23
Satrucharla Chandrasekhar Raju vs.Vyricherla Pradeep Kumar Dev and another. AIR1992 SC 1959

9
WHAT IS AN ‘OFFICE’:-

a) Definitions -The office has not been defined either in the Constitution or in the
Representation of People Act.

Justice Rowlatt’s defines the word ‘office’ in case of Great Western Railway Company v.
Bater24 and said the test to be applied is whether “it was a subsisting, permanent, substantive
position, which had an existence independent from the person who filled it, which went on and
was filled in succession by successive holders;”.

In case of Kanta Kathura v. Manak Chand Surana25 a Constitution Bench of Supreme Court
accepted the definition of Rowlatt justice and applying the test held that a Special Government.
But again in case of Mahadeo v. Shantibhai and Ors.26 the question for consideration was
whether appointment of a person on the panel of lawyers by Railway Administration can be
held to be an office and is that office is one for profit? The Court, in that case referred to
observation of Lord Wright of the House of Lords in the case of Mcmillon v. Guest27, where
Lord Wright has opined –

"The word 'office' is of indefinite content. Its various meanings cover four columns of the new
English Dictionary, but I take as the most relevant for purposes of this case the following; a
position or place to which certain duties are attached, especially one of a more or less public
character."

In the aforesaid case this Court while considering the appointment of the person concerned and
all terms and conditions came to the conclusion that it is difficult to hold that he held any office
of profit under the Government. The Supreme Court in case of Statesman (Private) Ltd. v. H.R.
Deb and Ors,28 Said that:

“An office means no more than a position to which certain duties are attached. According to
Earl Jowitt's Dictionary a public office is one which entitles a man to act in the affairs of others
without their appointment or permission.”

24
(1922) 2 A.C. 1.
25
(1969) 3SCC 268.
26
[1969]. 2SCR 422.
27
(1942) A.C 561.
28
AIR1968 SC 1495

10
But finally Supreme Court in case of M.V. Rajashekaran and Ors. vs. Vatal Nagaraj and Ors.29
accepted the test propounded by the Lord Wright and accepted by Supreme Court in
Mahadeo’s[30]case and held that the petitioner is holding an office of profit who is appointed
by the Karnataka government to a one man commission for studies of the problems of the
Kannadigas in the Border areas of Kerala, Maharastra, Andhra Pradesh, Goa and Tamil Nadu’s.

PARLIAMENT (PREVENTION OF DISQUALIFICATION) AMENDMENT ACT, 2006

India had the Parliament (Prevention of Disqualification) Act, 1950, 1951, and 1953 exempting
certain posts from being recorded as offices of profit. All these Acts were replaced by the
Parliament (Prevention of Disqualification) Act, 1959. By virtue of section 3 of the said Act,
certain offices did not disqualify their holders from being members of either house. But due to
above controversy by the Parliament (Prevention of Disqualification) Amendment Act, 2006
excludes 45 posts held by Members of Parliament from the operation of Article 102 with
retrospective effect from 1959.30

Recently in 2009, In the case of Consumer Education and Research Society V. Union of India,31
Supreme Court clearly held that when the amending act “retrospectively removed the
disqualification with regard to certain enumerated offices, any member who was holding such
office of profit, was freed from the disqualification retrospectively. As of the date of the
passage of the Amendment Act, none of the Members who were holding such offices had been
declared to be disqualified by the President.”

29
AIR 2002 SC 742.
30
Jain, M. P. INDIAN CONSTITUTIONAL LAW, Sixth Edn, (2010). P.38-39

31
(2009) 9 SCC 648

11
JOINT PARLIAMENTARY COMMITTEE (RECOMMENDATION)

The committee said, in its 186-page report, that it was essential to evolve the principles and
generic criteria before defining the term ‘office of profit.’ The Committee suggested the
definition of “office-of-profit” as: —

1) any office under the control of the Government of India, or the government of a state,
whether or not the salary or remuneration for such office is paid out of the public revenue of
the government of India or of the government of state,

2) any office under a body, which is wholly or partially owned by the government of India or
the government of any state and the salary or remuneration is paid by such body

3) any office the holder of which is capable of exercising executive powers delegated by the
government, including disbursement of funds, allotment of lands, issuing of licenses and
permits or making of public appointments or granting of such other favors of substantial nature;
or legislative, judicial or quasi-judicial functions. Since the judicial decisions gave varying
interpretations depending upon the facts of each case,

The best course appears to be to refer the matter to the Parliamentary Joint Committee to
examine the individual cases of the 40-odd MPs. The committee could exempt the offices it
thinks would attract disqualification under Article 102(1a) of the Constitution of India. That
Parliament is competent to enact a law to remove a disqualification with retrospective effect is
settled as in Kanta Kathura v. Manak Chandra Surana.32

32
(1969) 3SCC 268

12
DECISION ON DISQUALIFICATION OF MP’S AND MLA’S:

There are separate provisions of disqualification for the Member of Parliament and the member
of state legislature. Article 84 prescribes qualifications of the members of parliament. Article
103 lays down that any dispute about the disqualification of Member of Parliament shall be
referred to the President who will take a decision on the advice of the Election Commission
and his decision shall be final. The Election Commission has a great role as the President
decides the matter after obtaining its opinion and is accordance with that option and in case of
disqualification on grounds of defection, the matter will decided by the Speaker or Chairman
of Rajya Sabha as the case may be. In the case of member of state assembly article 191 would
prevail and the decision of the Governor shall be final. In this case also the opinion of the state
Election Commission shall be sought.

13
Conclusion -

In the light of above mentioned discussion it becomes clear that the true test to be applied to
determine whether a person holds an office of profit or not depends upon the extent of control
the government exercises, whether the government has power to appoint or dismiss, whether
the salary paid out of government fund or not, the salary which the person entitled to get must
not be compensatory in nature to bear out day to day expenses but it must confer some gain to
the person. One thing which must be bear in mind the objective of disqualification is to avoid
the conflict between the functionaries of state.

In the present scenario concept of separation of power becomes too thin because the
government function becomes so wide that it is not possible for the government to work in its
limited power which is given to the government. And in these conditions it must be seen that
there must not be any conflict between the duties discharged by the person in their legislative
and executive capacity. Though our constitution have provisions that the legislature could
exempt any post to come under the preview of ‘office of profit’ by making laws with
retrospective effect. By giving such a wide power to legislature it has constricted the scope of
art.102 (1) (a) and art.191 (1) (a). It becomes the usual practice of the governments which is in
majority to exempts the post on which there party members are appointed by amending the
laws.

14
BIBLIOGRAPHY

Books

M P Jain, “INDIAN CONSTITUTIONAL LAW”, 7th ed. 2014, LexisNexis.

Durga Das Basu, “COMMENTARY ON THE CONSTITUTION OF INDIA”, 8th ed. 2008,
LexisNexis, Nagpur.

Kailash Rai, “THE CONSTITUTIONAL LAW OF INDIA”, 10th ed. 2011, Central Law
Agency, Allahabad.

15