1

OFFICE OF PROFIT
ELECTION LAW PAPER

SUBMITTED TO:

Dr. Faizanur Rahman (Ass. Prof.)

Faculty of Law
Jamia Millia Islamia

SUBMITTED BY:

Sameeksha Kashyap
Roll No. 48
Semester VIII, Fourth Year
Faculty of Law
Jamia Millia Islamia
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Acknowledgement

I would like to express deep gratitude to my teacher, DR. FAIZANUR

RAHMAN, for giving me the opportunity to research on such an interesting
topic and for guiding me towards the completion of this paper.

This project would not have been completed on time without the help
provided to me by the staff of Jamia Millia Islamia University’s library and
therefore, I would like to express my gratitude to them as well.
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CONTENTS

1. Introduction ……………………………………………………..04

2. Meaning of the term ‘office’…………………...……………..…06

3. Judicial determination of the meaning and

scope of the term ‘office of profit’ ………………………………07

4. Conclusion……………………………………………...………..11

5. Bibliography…………………………………………………….12
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Introduction

The concept of ‘office of profit’, one of the disqualifications for Legislators, finds its genesis in
British Parliamentary Model. The disqualification gained legislative sanctity when it was first
enacted in the English Act of Settlement of 1701. Under this law, "no person who has an office
or place of profit under the King, or receives a pension from the Crown, shall be capable of
serving as a member of the House of Commons."1

Accordingly, when India became a sovereign-democratic Republic and decided to opt for a
parliamentary form of government, the Constitution makers engrafted the doctrine of separation
of powers within the Constitution so as to ensure that the three organs of the government will be
able to function efficiently and freely, without hindering the functioning of another. The essence
of disqualification under the office of profit law is that if legislators hold an ‘office of profit’
under the government, they might be susceptible to government influence, and may not
discharge their constitutional mandate fairly. The intent is that there should be no conflict
between the duties and interests of an elected member. Hence, the office of profit law simply
seeks to enforce a basic feature of the Constitution- the principle of separation of power between
the legislature and the executive.2

In India, the concept made its appearance for the first time in the Act of 1909, which embodied
the Morley-Minto Reforms proposals. In the Indian Constitution, Art.102 and Art.191 deals with
disqualification of members of Parliaments and state legislature respectively.

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;”

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

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

1 Sruthi Radhakrishnan, The Hindu Explains: Office of profit, THE HINDU (28/04/20,
23:36)https://www.thehindu.com/news/national/the-hindu-explains-office-of-profit/article22480152.ece.

2 Vibor Relhan, Explained: Law on holding an ‘Office of Profit, PRS (28/04/20, 23:44)
https://www.prsindia.org/theprsblog/explained-law-holding-%E2%80%98office-profit%E2%80%99.
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The Bhargava Committee on Offices of Profit, constituted under the Chairmanship of Pt. Thakur
Das Bhargava in 1954, recommended enactment of the Parliament (Prevention of
Disqualification) Act. The Act was passed in 1959 and presently governs the law on offices of
profit in India. By virtue of section 3 of the said Act, certain offices did not disqualify their
holders from being members of either house. 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.

Under the Representation of People Act too, holding an office of profit is grounds for
disqualification.

The legislation, however, does not define the term ‘office of profit’ and neither the Constitution
or any other statute. The main source for understanding what constitutes an office of profit is
judicial rulings. Apart from the Judiciary, Joint Committee on Offices Profit has also contributed
in defining the term. The object of this paper is to understand the meaning of the term and also to
ascertain the tests, evolved through judicial rulings, that determine whether a person holds a
office of profit or not.
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Meaning of the term ‘office’

The term office has neither been defined in the Constitution of India nor in the Representation of
People Act.

In case of Great Western Railway Company v. Bate3 ROWLATT J. defined the word ‘office’
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 Kathuria v. Manak Chand Surana4 a
Constitution Bench of the Supreme Court accepted the definition of Rowlatt justice and applied
the test holding that a Special Government Pleader holds an office of profit.

In the case of Mcmillon v. Guest5, LORD WRIGHT of the House of Lords observed that-
"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." This observation was referred to in the case of Mahadeo v. Shantibhai and Ors.6
where the question arose whether appointment of a person on the panel of lawyers by Railway
Administration can be held to be an office and is that office one for profit? In the aforesaid case
the 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 Ors7 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, the Supreme Court finally accepted the test propounded by the Lord Wright in the case of
M.V. Rajashekaran and Ors. vs. Vatal Nagaraj and Ors.8 and held that the petitioner-
appointed by the Karnataka government to a one man commission for studies of the problems of
the Kannadigas in the Border areas of Kerala, Maharashtra, Andhra Pradesh, Goa and Tamil
Nadu’s- is holding an office of profit.

3 (1922) 2 A.C. 1.
4 (1969) 3SCC 268.
5 (1942) A.C 561.
6 (1969) 2 SCR 422.
7 AIR1968 SC 1495.
8 AIR 2002 SC 742.
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Judicial determination of the meaning and scope of the term ‘office of profit’

The Supreme Court in India has ventured to define the meaning and scope of the term ‘office of
profit’, that is, determining whether an office is a office of profit or not, in a number of its
rulings.

The Supreme Court in case of Ravabba Subanna v. G. S. Kaggeerappa9 upheld the test that the
remuneration, which a person 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. The Court further, observed --“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…".

While considering whether there is disqualification of a candidate being holder of an office of

profit, the Supreme Court in the case of Chandrasekhar Raju v. Vyricherla Pradeep Kumar
Dev and another10 held that emphasis ought to be on the nature and to appreciate the same, the
test is whether the government has power to appoint and dismiss the employee who is being
chosen as a legislator. A creator of a registered society where the government has same control
over the composition of its governing body and of sanctioning of posts, and funds for the
activities of society also came from government revenue was held that it is not an office of profit
on the ground that the government has “direct” control over teachers themselves and as a teacher,
cannot be subjected to any kind of pressures from the government.

In Shivamurthy Swami v. Veerabhadrappa Veerappa11, the Supreme Court declared the tests
to be applied to determine whether an office is an “office of profit” under the state government .
The tests are :
(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? Does he perform the function for the
Government; and
(5) Does the Government exercise any control over the performance of those functions?

The Supreme Court has justified this judgment and applied it in case of Surya Kant Roy v.
Imamul Hai Khan12. 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
9 AIR1954 SC 653.
10 AIR1992 SC 1959.
11(1971) 3 SCC 870.
12 AIR1975 SC 1053.
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of profit. The Court noticed 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 M.Ramappa v. Sangappa and Ors.13Supreme Court observed that 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 by the Government, and that there is no one else under whom
their offices could be held." The Court further laid down that it need not be a payment in money,
where lands are allotted to the officer by way of remuneration for services rendered or he is
authorised to deduct his remuneration from the Government revenue collected by him, the office
held by him is an ‘office of profit’.

The following conditions were laid down in the case of Abdul Shakur v. Rikhab Chand14 must
be satisfied in order to disqualify a person under sub-cl. (a) of Article 102(1) and Article 191(1):

(a) There must be an office;

(b) Such office must be an office of ‘profit’;
(c) It must be under the Government of India or the Government of a State;
(d) Such office must not be excluded from the operation of this sub-clause by law made by
Parliament;
(e) Such office must actually be ‘held’ by such person.

In case of Guru Govinda Basu v. Sankari Prasad15, the Supreme Court said that the office
under the government does not necessarily mean 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.

In Madhuker G.E. Pankakar v. Jaswant Chobbildas Rajan16, the question arose whether the
appellant, a doctor in a Municipality of Maharashtra was holding an office of profit under the
Government. It was held: ‘the core question that comes to this from the survey of panorama of
case-law is as to when we can designate a person gainfully engaged in some-work having a
nexus with the Government on holder of an “office of profit’ under the Government with setting

13 AIR1958 SC 937.
14 AIR 1958 SC 52 (55): 1958 SCR 387.
15 AIR 1964 SC 254 : (1964) 4 SCR 311.
16 1976 AIR 2283.
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of disqualification for candidature for municipal or like election. The holding of an office
denotes an office as an independent continuity and an incumbent thereof for the nones.

In Shibu Soren vs. Dayanand Sahay & Ors17, the Apex Court propounded that in common
parlance the expression “profit” connotes an idea of some pecuniary gain. If there is really some
gain, its label-honorarium, remuneration or salary – is not material. “Not the quantum of the
amount may always be material to determine the issue. Indeed ‘honorarium’ is a concept
different than salary or remuneration and its payment cannot constitute an ‘office of profit’
unless there is some pecuniary gain for the recipient. It is the substance and not the 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 person concerned, in connection
with the office he holds, gives to him some pecuniary gain, other than as ‘compensation’ to
defray him out of pocket expenses, which may have the possibility to bring that person under the
influence of the executives, which is conferring that benefit to 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.18 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,

An office is deemed to be an office of profit if it is capable of yielding an emolument,

remuneration, profit or pecuniary gain, regardless of whether the person exercises that ability in
order to actually obtain the profit or not. This was explained in the case of Jaya Bachchan v
17 AIR 2001 SC 2583.
18 2nd report of joint committee on office of profit of the 14th Lok Sabha at para.13.
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Union of India19, wherein the Supreme Court ruled that the criteria of “holding an office of
profit” will be satisfied when any form of emoluments, remuneration or salary is appended to an
office under the Central/State government. As is elucidated in the case, the understanding of
whether a member does hold an ‘office of profit’ is a subject matter of interpretation. However,
this interpretation must be made in a realistic manner. The use of the word ‘honorarium’ to imply
that no residential, medical or reimbursing benefits are ever actually received despite their
availability is an argument not accepted under the ambit of Article 102(1)(a). As long as the
pecuniary gain” is “receivable” in connection with the office, it becomes an office of profit,
irrespective of whether such pecuniary gain is actually received or not. This decision is taken by
the President and his decision is uncontested and final. The decision-making process is
supplemented by the opinions of the Election Commission which the President is bound to
follow. The advice of the Council of Ministers is not taken into consideration to this effect.

Another popular instance of disqualification is that of Sonia Gandhi which brewed controversy
amongst various political parties and leaders of India. It was famously called the “second
renunciation”, for it was the second time in about two years that she was forsaking her power at
the behest of the distressed party workers. On one hand where the Telugu Desam Party president
N. Chandrababu Naidu believed that Sonia Gandhi had no other option but to resign, the Janata
Dal (U) and the Maharashtra Congress leaders welcomed the decision and backed it thoroughly.
Further, once declared disqualified, the Member of Parliament from that very instance holds a
non-exempt office of profit which means that under no circumstances is the order passed for
disqualification exempted or reversed by the Parliament. The Member of Parliament is labeled as
holding an office of profit even before the final disqualification actually takes place. An
‘intervening time gap’ shall not be acknowledged or encouraged between the holding of an office
of profit and his disqualification from the office on the same grounds. It must not be assumed
that during the time gap between the announcement of disqualification of the Member of
Parliament and the execution of the disqualification, the Parliament is free to reverse the order of
disqualification through legislation. This is solely because any constitutional provision shall
always prevail over a parliamentary legislation. According to the provisions of the Constitution,
such a disqualification is irrevocable and binding, violation of which would mean derogation of
the constitutional norm over a legislative norm.

Conclusion

The true test to be applied to determine whether a person holds an office of profit or not depends
upon the

19 2006 (5) SCALE 511.

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● extent of control the government exercises,

● whether the government has power to appoint or dismiss,
● whether the salary paid out of the government fund or not, and
● that 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.

The main objective of disqualification is to avoid the conflict between the functionaries of state.

The 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. There must not be any conflict between the duties discharged by the person in
their legislative and executive capacity. Though our constitution has 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.

Bibliography

Statutes referred:
● The Constitution of India, 1950.
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● The Representation Of The People Act, 1951.

● Parliament (Prevention of Disqualification) Act, 1959.

Websites Referred:
● https://www.prsindia.org
● https://www.thehindu.com/news/national/the-hindu-explains-office-of-
profit/article22480152.ece
● https://indiankanoon.org/doc/364149/
● https://shodhganga.inflibnet.ac.in/bitstream/10603/216090/5/05_chapter%202.pdf