India has Parliamentary Form of Government and crus of Parliamentary Democracy lies in day

to day accountability of Government to Parliament enforced through collective responsibility

etc.1 To ensure that Parliamentary proceedings are in the best interest of the country, it is
necessary that legislators are free and independent so that they can perform their constitutional
duties honestly. To make sure that legislators should remain independent and free, Indian
Constitution has some provisions and ‘office of profit’ is being of them.

In our constitution, ‘Office of Profit’ features as one of the grounds for disqualification of a
member from the parliament and state assemblies. Article 102(1) (a) of the Constitution provides
“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 of India or the Government of
any State, other than an office declared by Parliament by law not to disqualify its holder”.
Article 191 corresponds Article 102 and applicable to the state legislative assemblies.2 Literal
meaning of ‘office of profit’ is an office to which pay, salary, emoluments or allowance is
attached and it is be held under Government control directly and substantially.3

This benevolent concept has been incorporated in order to eliminate the risk of conflict between
the constitutional duties and interests of legislators.4 Because, a person who is elected to
Legislature should be free to carry on his constitutional duties fearlessly without being subjected
to any kind of governmental pressure. If such a person is holding an office which brings him
remuneration and the Government has a voice in his continuance in that office, there is a strong
likelihood of such person succumbing to the wishes of Government and then He can’t criticize
measures of Executive Government even if they go against the interest of the people of the
country”5

However, it should be worth noticing that 10th Schedule has been inserted in 1985 through 52nd
Amendment Act and again it has been amended in 2003 through 91st Amendment Act.6 It
provides for anti-defection law and makes legislators disqualified from being members of the

1
K.N.SINGH, ANTI-DEFECTION LAW AND JUDICIAL REVIEW 16 (1992).
2
INDIA CONST. art. 102, cl. (1).
3
Gatti Ravanna v. G.S. Kaggeerappa, A.I.R. 1954 S.C. 653.
4
Satrucharla Chandrasekhar Raju v. Vyricherla Pradeep Kumar Dev, (1992) 4 S.C.C. 404.
5
Ashok Kumar Bhattacharyya v. Ajoy Biswas, (1985) 1 S.C.C. 151.
6
http://www.constitution.org/cons/india/tamnd52.htm; file:///C:/Users/User/Downloads/amend91.pdf.
House on being declared as defected according to the provision. This Anti-Defection law has
curbed the independence of the legislators to a great extent. 10th Schedule has some grounds on
the basis of which a member can be disqualified and one of the grounds provides that a member
of House is deemed to have defected if he disobeys the directives of the party leadership on a
vote meaning thereby, he can’t vote on any issue in contravention to the party’s ideology.7 Term
‘direction’ here can be meant as ‘whip’ which is governed through party’s discretion.8

Therefore, it can be said that 10th schedule is anti-democratic in nature and goes against the
representative democratic nature of Indian Polity System as it asserts itself against Legislators’
independence as set out in the Art.105 of Indian Constitution.9 It has been resulted in
unnecessary issuance of whips for trivial matters or as a fake display of party cohesion or to get
an important legislation to be passed. For example, BJP and Congress both issued a whip for its
legislators when Government introduced the 10% reservation quota bill for EWS of the General
Category members and no members of both the parties voted against it, however, Congress
members criticized it and were against the bill. Thus it can be said that legislators can’t vote as
per their commonsense, conscience and need of constituency to which they represent.10

Moreover, 91st Constitutional Amendment fixed the size of cabinet at 15 % of the total strength
of the Parliament or State Legislature.11 Thus in order to accommodate dissatisfied legislators
who can’t make it to the cabinet, Government favors them in shape of various perks, offices to
which some power and pecuniary gain are attached. And thus members feel a psychological
attachment towards the party line and its ideology in the House. 12 And every time a complaint is
registered with the Election Commission of a legislator holding an office reaping profits, the
appropriate Government promulgates an ordinance and excludes a particular number of posts
thus rendering the disqualification futile sidelining the noble provision. This has been the

7
M.R.Madhavan,,&“ Pragati, In Parliament, PRE LEGISLATIVE RESEARCH (May 15, 2018, 08:05 PM),
http://www.prsindia.org/media/articles-by-prs-team/in-parliament-part-1-961/

8
Anti-Defection Law: A Death Knell for Parliamentary Dissent?, (2012) 5 NUJS L Rev 103, 104.
9
Manish Tiwari, Liberate the Legislator, THE HINDU (May 15, 2018, 08:03 PM), http://www.thehindu.com/todays-
paper/tp-opinion/liberate-the legislator/article8538780.ece.
10
Manish Tiwari, Liberate the Legislator, THE HINDU (May 15, 2018, 08:03 PM), http://www.thehindu.com/todays-
paper/tp-opinion/liberate-the legislator/article8538780.ece.
11
file:///C:/Users/User/Downloads/amend91.pdf.
12
Faizan Mustafa, YOUTUBE (Jan. 22, 2018), https://www.youtube.com/watch?v=6l2i2Jw_uF4.
consistent practice which seems to be well settled and was legitimized by the Court as recently as
in 2014 in the case of Ajay Bhatt v State of Uttrakhand.13
At the very outset we submit that judicial decisions though bound to vary from case to case basis
and expecting judicial decisions constrained to a water tight compartment is not feasible but
rampant inconsistency prevails in the entire fabric of interpretation of the constitutional provision
of ‘office of profit’ and it is hard to point a specific rule of interpretation being employed by the
courts. Because there were cases having almost same factual matrix but totally different view
altogether was taken by the courts. For example, in Ramkrishna Hegde v. State of Karnataka14,
Court held that if only allowances are withdrawn then the office is not one of ‘profit’ therefore,
Hegde a legislator was not disqualified for holding the post of Deputy Chairman, Planning
Commission even when he availed compensatory allowances. However in Jaya Bachhan v.
Union of India15 bearing the similar facts, Court ruled that if pecuniary gain is receivable by the
virtue of being in office then the office is considered as office of profit.

Authors would like to conclude by saying that ‘Office of Profit’ seems to be a highly utopian
concept in the light of various loopholes, inconsistencies and Parliamentary setup of our nation.
Moreover, introduction of Anti Defection law has completely eclipsed any motive that the
concerned disqualification may have in the constitutional scheme. Radical measures like striking
off the disqualification based on office of Profit are warranted on the grounds that it serves no
purpose in the contemporary political setup and instead leave a wide gap for the aforesaid
provision to be misused by various political parties.

13
Ajay Bhatt v. State of Uttarakhand, 2013 S.C.C. OnLine Utt. 1478.
14
Ramkrishna Hegde v. State of Karnataka, A.I.R. 1993 Kant. 54.
15
Jaya Bachchan v. Union of India, (2006) 5 S.C.C. 266.