ICFAI UNIVERSITY DEHRADUN

ILS

TOPIC – IMPLICATION OF Office Of Profit

Submitted To Submitted By
Anup sir Baidyanath Sharan
Asst. professor B.B.A.LL.B. (Hons.)
THE ICFAI UNIVERSITY 17FLICDDNO1037
DEHRADUN (U.K) Section- A

1 Introduction – | CONSTITUTION
 TABLE OF CONTENT
CONTENT PAGE NO.

1. Introduction……………….………………………………..03 to 04
2. Rationale for the disqualification for holdingan office of profit…….04 to 05
3. Office of profit position in other Countries………………………………..05 to 06
4. Office of profit position in India………………………………………..06 to 09
5. What is an ‘office’…………………………………………………….09 to 10

(a) Definitions…………………………………………………………………..10 to 10
(b) Sonia Issue………………………………………………………..10 to 11
(c) Parliament (Prevention of disqualification) Amendment Act, 2016….

6. Joint parliamentary committee

(recommendation).............................................................
7. Decisions on disqualification of MP and MLA…………………………………
8. Conclusion……………………………………………………………….

2 Introduction – | CONSTITUTION
 Implication of office of profit

1. 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 Reforms proposals[1]. The basic idea was and remains that the legislators should not
be vulnerable to temptations 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 ofParliaments and state legislature respectively.[2]

1. 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]

(b) There is a similar provision in the constitutionfor the disqualification of membership of

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

(c) 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

(1) 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

3 Introduction – | CONSTITUTION
 Legislative Council or Assembly of a State[4].

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 favors or benefits from the executive and who consequently being under anobligationto
executive, might be amenable to its influence.

2. 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 unaffected.[5]The true principle behind this provision in Article 102(1) (a) is that
there should no be any conflict between the duties and the interest of an elected member.[6]

Article 102(1) (a) of the Constitution says that a personshall be disqualified for being
chosenas, 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 executivepowers.

4 Rationale for the disqualification for holding an Office of Profit- | CONSTITUTION

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
favor. The presumption is that if a legislature receives benefits from the Executiv 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
theyarereceiving favors and benefits from it.

3. “Office of Profit”position in other Countries-

InUnitedKingdom(U.K) thelawevolvedinEngland in the context of struggle between the Crown and
the House of Commons which was not the case herein India. The House of Commons is qualification
Act,1957 (re enacted in 1975) replaced disqualification for holding ‘an office of profit under the
Crown’ by disqualification attached to the holding The conflict of constitutional duties.

Under section 1 of the House of Commons is qualification Act,1975,the

disqualifying offices fall into six categories:

1. A great variety of judicial offices, listed in schedule 1 of the Act. The principle is that no
person may hold full-time judicial office and be a practicing politician.

2. Employment in the civil service of the Crown, whether in an established or temporary

capacity, whole time or part time. The disqualification extends to members of the civil service
of Northern Ireland and the diplomatic service. Civil servants who wish to standforelectionto
Parliament are required by civil service rulestoresign beforebecomingcandidates.

 Membership of the regular armed forces of the Crown;

 Membership of any police force maintained by a police authority, or the National Criminal
Intelligence Service, or the National Crime Squad.

 Membership of thelegislature of anycountry or territory outside the Common-wealth, except

the Republic of Ireland. It is likely that members of a legislature other than that of the Irish
Republic would be debarred by their status as aliens from membership of the Commons.

 A great variety of disqualifying offices arising from chairmanship or membership of

commissions, boards, administrative tribunals, public authorities and undertakings; in a

5 “Office of Profit”position in other Countries- | CONSTITUTION

 few cases, the disqualification attaches only to a particular constituencies. As
these offices cover such a wide range, each office is specified by name. The schedule may
be amended by Order in Council made following a resolution approved by the House of
Commons. This power obviates the need for amendment by statute as and when new offices
are created.

 In the United States Article 35 of the U.S. Constitution mentions the phrase and defines it thus:

"An office to which fees, a salary or other compensation is attached is ordinarily

an office of profit."

 IntheAustralianConstitution section44prescribes certain disqualifications which render a

person incapable of being chosen or of sitting as a member of either House. The section is as
follows:

(iv) Holds any office of profit under the Crown, or any pension payable during the pleasure of the
Crownout of any of the revenues of the Commonwealth: or

But sub-section (iv) does not apply to the office of any of the Queen’s Ministers of State for
the Commonwealth, or of any of the Queen’s Ministers for a State, or to the receipt of pay,
half-pay, or a pension by any person as an officer or member of he Queen’s navy or army, or to
the receipt of pay as an officer or member of the naval or military forces of the
Commonwealth by any person whose services are not wholly employed by the
Commonwealth.

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 inter‐ pret 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.

6 “Office of Profit”position in other Countries- | CONSTITUTION

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. VyricherlaPradeep Kumarevandanother[9]theSupremeCourt

after examining a catena of authorities, it was opined:

 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.

 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 Agadi Sanganna
Andanappa[11] 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 theremuneration;
“(4) what are the functions of the holder and
“(5) The Government exercise any control over the performance of those functions?”[12]

The Supreme Court has justified this judgment and applied it incase of Surya Kant Roy v.
Imamul Hai Khan[13]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
case[14]and observed that the Government did not pay the remunerationnor did the holder
of the office perform his functions for the Government and, therefore, he could not be
said to hold an officeunder 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 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

7 “Office of Profit”position in other Countries- | CONSTITUTION

 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 others[16]it was held that the a
Manager of a School run by a Committee of Management formed under the provisions of
the argah 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 are gahendowment.
Further in case of Gurugovinda Basu v. Sankari Prasad[17] 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. ayanand Sahay &Ors[18]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 monthsaily allowance at the rate of Rs. 150/- per day for the period
spent outside the headquarters besides traveling expenses as prescribedaily 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 river. 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 '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

8 “Office of Profit”position in other Countries- | CONSTITUTION

 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
Councilthepetitioneris entitled to:-

1. Honorarium of Rs. 5,000/- per month;

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

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

4. Body Guard and night escort.

5. Free accommodation and medical treatment facilities to her and family members.
6. 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 traveled 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.

But this contention of petitioner is not maintainable because Supreme Court in case of ivya
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 .
9 “Office of Profit”position in other Countries- | CONSTITUTION
 5. What is an ‘office’:-
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.
Bater[24]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 Surana[25]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. Guest[27], where Lord Wright has opined –

(a) Definistion-

"The word 'office' is of indefinite content. Its various meanings cover four columns of the new
English ictionary, 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. vs. 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.”

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.

(b) Sonia Issue

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Congress President Sonia Gandhi was a member of Lok Sabha. She was appointed as the Chairperson
of National Advisory Council by the UPA government. She also held several posts under the
government. Complaints were registered against her, nd she chose the safe route of resignation.
So that she couldcontinueherimpressionofbeingthestatueof sacrifice and morality.

The list of holders of office of profit is too long. Complaintsagainstmorethan40MP’sareregistered

in the Election Commission. Lok Sabha Speaker Somnath Chatterjee himself comes within the
purview of disqualification. Hundreds of member of different state legislature hold offices of profit,
somehoworthe other.

(c) Parliament (Prevention of disqualification) Amendment Act, 2006 –

India had the Parliament (Prevention of is qualification) 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 is qualification) Act, 1959. By virtue of section 3 of the said Act, certain offices
did not disqualifytheirholders frombeingmembersof either house. But due to above controversy by the
Parliament (Prevention of is qualification) Amendment Act, 2006 excludes 45 posts held by
Members of Parliament fromthe operationof Article 102 with retrospective effect from 1959.[31]

Recently in 2009, In the case of Consumer Education and Research Society V. Union of
India,[32] 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.”

6- Joint parliamentary committee (recommendation) [33]

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.’TheCommitteesuggestedthe
definitionof “office-of-profit” as: -

 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.

 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.

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  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. [34]

7. Decisions on disqualification of MP & MLA.

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 Commis‐ sion and his decision
shall be final. The Election Com‐ mission 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.

8. 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

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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
legislaturecould exemptanypost to come under the preview of ‘office of profit’ by makinglaws
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 thelaws.

9. Bibliography -
1. Prof. M.P. JAIN, INDIANCONSTITUTIONAL LAW, Sixth Edition,
(LexisNexis Butterworths Wadhwa Nagpur,2010)
2. Kafaltiya, Anand Ballabh; DEMOCRACY AN ELECTION LAWS,
(Deep & Deep Publication Pvt. Ltd., 2003)
3. V.N. Shukla; Constitution of India; 10th Edition, Eastern Book Company
4. Dr. D.D, Basu, Introduction to the Constitution of India; 19th Edition; Wadhwa Nagpur.
5. P.M Bakshi, THE CONSTITUTIONOF INDIA; 17th Edition(2006)
6.Dr. Parnajape, N.V, INDIAN LEGAL AN CONSTITUTIONAL HISTORY,
(CLA,Reprient Edition, 2002)
Websites –
1. http://en.wikipedia.org/wiki/Office of profit
2. http://jurisonline.in/2010/03/office-of-profit/
3. http://www.hindu.com/2006/04/14/stories/

1. Dr. Parnajape, N.V. INDIAN LEGAL AN CONSTITUTIONAL

HISTORY,(CLA,Reprient Edition, 2002), p.278
2. Dr. M. P. JAIN INDIAN CONSTITUTIONAL LAW,Sixth Edn, (2010). P.38
3. P.MBakshi,THECONSTITUTIONOFINDIA. p.113.
4. Dr.M.P.JAIN INDIAN CONSTITUTIONAL LAW, Sixth Edn,(2010). P.33
5. Satrucharla Chandrasekhar Raju v. Vyricherla Pradeep Kumarev and another. AIR1992 SC
1959
6. Ashok Kumar Bhattacharyya v. Ajoy Biswas and Otrs. AIR 1985 SC 211.
7. AIR1954 SC 653.
8. Shivamurthy Swami vs. Agadi Sanganna Andanappa. (1971)3 SCC 870.
9. AIR1992 SC 1959
10. AIR1992 SC 1959 p.1964

11. (1971) 3 SCC 870.

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12. (1971)3 SCC 870, p.875 para.14.
13. AIR1975 SC 1053
14. (1971)3SCC 870.
15. AIR1958 SC 937.
16. AIR1958 SC 52.
17. AIR 1964 SC 254.
18. AIR 2001 SC 2583.
19. 2nd report of joint committee on office of profitof the 14th Lok Sabha at para.13.
20. 2006 (5) SCALE 511.
21. AIR 1975 SC 1067.
22. AIR 1975 SC 1067, p.1069 para.4.
23. Satrucharla Chandrasekhar Raju vs.Vyricherla Pradeep Kumar and another. AIR1992 SC 1959
24. (1922) 2 A.C. 1.
25. (1969) 3SCC 268.
26. [1969]. 2SCR 422.
27. (1942) A.C 561.
28. AIR1968 SC 1495.
29. AIR 2002 SC 742.
30. AIR 1975 SC 1067, p.1069 para.4.
31. Jain, M. P.IN IANdian CONSTITUTIONAL LAW, Sixth Edn, (2010). P.38-39
32. (2009) 9 SCC 648
33. Report of joint committee on office of profit of the 14th Lok Sabha.
34. (1969) 3SCC 268

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