CHAPTER – 2

CONSTITUTIONAL PROVISIONS FOR DISQUALIFICATION

OF A MEMBER OF PARLIAMENT

Introduction

Article 102(1)(a) of the Constitution of India recognizes “holding an office of

profit under the government” a ground for disqualification from being a Member of
Parliament (MP) as well as contesting parliamentary elections to be chosen as an
MP. The objective of Article 102(1)(a) is to ensure that the representatives of the
people discharge their assigned functions without fear or favor from the executive. In
order to avoid a conflict between the primary duties of an elected member and the
Parliament, the provisions of the Article stipulate that Members of Parliament who
hold an “office of profit” must be disqualified.

Before proceeding further, it is essential that the meaning of “office of profit”

be understood. 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 Union of India, 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

27
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 Janta 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.

Who holds the authority to make such a choice for the members? A Joint
Committee, consisting of some members from the Rajya Sabha and Lok Sabha, has
been composed in order to regulate the question of which bodies would be a
disqualification for the MP. This is a matter requiring regular assessment, and for this,
the function of the committee is to assume a continuous examination of the
composition and character of various government appointed bodies and account to
both the houses as to which must be disqualified from membership to the Parliament.

28
 The question that arises next is- on what basis does the Committee decide
whether to execute the disqualification of members or not? The answer lies in the
amount and kind of emoluments and allowances. If the member of an advisory body
only gets a regular salary, the disqualification is not attracted. On the other hand, in
cases where the member belongs to an executive and financial body that can exert
power and influence, the disqualification is attracted. Hence, the nature and function
of the body that the member is a part of also plays a consequential role in determining
the competency of a person to be a member of the Parliament.

As has been mentioned before, in certain cases, after evaluation of facts and
circumstances, the President might decide that the disqualification of an MP will not
be necessary due to the facts and reasoning of that particular case. For such instances,
the Legislature had enacted the Parliament (Prevention of Disqualification) Act, 1950,
1951 and 1953 which specifically exempted certain posts from being disqualified
despite holding a record for holding an office of profit. All such acts were
consolidated and replaced finally by the Parliament (Prevention of Disqualification)
Act, 1959. Also, the Parliament (Prevention of Disqualification) Amendment Act,
2006 that allowed the Parliament to validly exempt the offices of profit until the
President came to a decision on the disqualification of the Members of Parliament has
pervasive repercussions. Such a doing would effectively mean disregarding a given
constitutional provision, for the exercise of the power will theoretically rest with the
President under Article 103, however, in practice, be governed at the instance of the
Parliament. Also, effectively, this would mean that no member of the government will
ever get disqualified and that would be a serious transgression of Article 102(1)(a)
and Article 103 of the Constitution of India, which is not a desirable outcome with
respect to the present political circumstances.

Constitutional Provisions

The Constitution of India lays down certain fundamental disqualifications

which militate against an individual entering the Houses of Parliament. In light of the
rapidly changing political, economic and social circumstances, the Constitution left
any additional disqualification conditions to the collective wisdom of the Parliament.

29
The basic disqualifications which the Constitution enumerates are described as
follows :

Art. 84. Qualification for membership of Parliament

“A person shall not be qualified to be chosen to fill a seat in Parliament unless he-

(a) is a citizen of India, and makes and subscribes before some person authorised
in that behalf by the Election Commission an oath or affirmation according to
the form set out for the purpose in the Third Schedule;
(b) is, in the case of a seat in the Council of States, not less than thirty years of age
and, in the case of a seat in the House of the People, not less than twenty five
years of age; and
(c) possesses such other qualifications as may be prescribed in that behalf by or
under any law made by Parliament”

Provisions under Other Countries

(A) England- The disqualifications for membership of the two Houses are
different and are governed by separate statutes.

1. House of Lords.- At present the only persons disqualified are- aliens,

infants, bankrupts, persons convicted of treason and felony and persons
expelled from the House permanently by a sentence of the House of
Lords, acting in its judicial capacity. As per House of Lords Act 1999,
hereditary peers are also disqualified from sitting and voting in the House
of Lords.1

The disqualification of women2 has been partially removed by the enactment of the
Life Peerages Act, 1958, which empowers the Crown to confer life peerage on any
person (including a women) by virtue of such person will rank as baron and also be
entitled to sit and vote in the House of Lords.

1
See HOOD PHILLIPS and JACKSON on CONSTITUTIONAL AND ADMINISTRATIVE LAW,
8th Edn. 2001 Chap. IX, “House of Lords’, Para 9.013 at p. 179.
2
Viscount Rhondda’s case, (1922) AC 339.

30
 2. House of Commons.- the disqualification for membership of the House of
Commons are laid down by common law as well as statutes. The principle
categories of the persons disqualified are- (a) aliens; (b) infants; (c)
lunatics and idiots; (d) bankrupts; (e) English and Scottish peers; (f)
persons convicted of treason and felony; (g) persons having been
disqualified for having been guilty of corrupt practices at elections; (h) a
returning officer at an election; (i) the holders of certain offices or places
of profit3. A person is disqualified for membership of the House of
Commons, if he falls in to any of these categories: (1) LORDS
SPIRITUAL: as a consequence of the House of Commons (Removal of
Clergy Disqualification) Act, 2001, Lords Spiritual have been added to the
list of those disqualified; a bishop who is not a Lord Spiritual member of
the House of Lords is not disqualified; (2) Judicial Officers; (3) Civil
Servants; (4) Members of regular armed forces of the Crown; (5) Members
of any police force; (6) Members of the legislature of any country outside
the commonwealth apart from the members of the legislature of Republic
of Ireland since they are considered as aliens; (7) all the members of the
Commission, tribunals; (8) Holders of various offices such as
Ambassadors, High Commissioners, the Comptroller and Auditor-General,
Judges, Advocates, Parliamentary Commissioners, Chairman of the
Statutory Tribunals and Councils, Governor of British Broadcasting
Corporation and registration officers at election. There are certain officers
who are disqualified for particular constituencies.4

The position relating to ‘offices of profit’ has been revolutionised by the enactment of
the House of Commons Disqualification Act, 1957, 19755 and deserves a special
treatment. This Statutes replaces all previous statutes relating to this subject and forms
and exhaustive code as to the offices or places of profit, the holders of which
disqualified themselves for membership of Parliament, by enumerating them. It will

3
See CONSTITUTIONAL AND ADMINISTRATIVE LAW By A.W.BRADLEY and K.D. EWING,
13th Edn. 200, Chap. IX, “Composition and Meeting of Parliament”, at p. 169.
4
See CONSTITUTIONAL AND ADMINISTRATIVE LAW By HOOD PHILLIPS AND JACKSON,
8th Edn. 2001,Chap. X, “THE HOUSE OF COMMON”, Para 10.007 at pp.205-206.
5
HALSBURY, 4th Edn.,Vol. 34, pp. 423-440

31
no longer be necessary to apply precedents and common law principle to determine
whether an office constitute an ‘office of profit’. The following classes of persons are
disqualified by the Act-

(i) A person who holds any of the Judicial offices enumerated in Part I of the
First Schedule to the Act;6
(ii) Any person employed in the civil services of the Crown, whether in an
‘established capacity’ or not and whether for whole or part of his time.7
(iii) Any member of the regular armed forces of the Crown;8
(iv) Any member of the public police forces;9
(v) A member of the Legislature of any country or territory outside the
commonwealth. Members of the legislature of the Legislatures of any
country outside the Commonwealth apart from members of such
Legislatures would Generally be disqualified as aliens, but this provision
disqualifies those with dual nationality;10
(vi) A member of any of the Commissions or Tribunals specified in part II of
the First Schedule;11
(vii) Holders of the offices mentioned in Part III of the first Schedule. These
officers are disqualified either because they are appointed by the Crown or
because offices is incompatible with membership of the House of
Commons.12
(viii) The holders of political offices in the excess of the numbers specified in
Sec. 2(1) of the Act. This means that ministers as a class are not exempted
from disqualification, not more than 95 ministers shall be entitled to sit
and vote in the House at any one time. The maximum numbers of
ministers who are not disqualified will be maintained by the order of their
appointment as ministers, so that any minister who is appointed after the
6
See para 1110 of Vol. 34 of HALSBURY’S LAWS OF ENGLAND, 4 th Edn.
7
Para 1107, Ibid.
8
Ibid.
9
Ibid.
10
See HOOD PHILLIPS and JACKSON on CONSTITUTIONAL AND ADMINISTRATIVE LAW,
8th Edn. 2001 Chap.X, “HOUSE OF COMMON “, para 1010.007 at p.205
11
For the list of bodies who are disqualified, see para 1111 of Vol. 34 of HALSBURY’s LAWS OF
ENGLAND, 4th Edn.
12
Ibid., para 112

32
 quota is filled up will be disqualified from sitting or voting unless the
number of sitting members is reduced by death or resignation.13
If, apart from an election petition, a question is raised that as disqualified
persons has been elected, the question shall be determined by the House. 14 If
the House holds to be disqualified his election is void and he must vacate his
seat but the House may order that any particular case of disqualification shall
be disregarded.15 If it is alleged otherwise than by an election petition that any
member of Parliament or person elected to be a member is or has become
disqualified for membership whether by vocation, status or incapacity or by
reason of office or service, his right to sit and vote in the House of Commons
may be decided by the House itself. The House does in fact take notice of any
legal disabilities affecting its members and issues writs in the room of
members adjudged to be incapable of sitting. Where it is claimed that a person
purporting to be a member of the House of Commons is or has been
disqualified at any time since his election by reason of office or service under
the House of Commons Disqualification Act, 1975, application may be made
to Her Majesty in Committee of the Privy Council. Disqualification of persons
elected as Member of Parliament on ground subsisting at the time of election
may be determined by an election court on presentation of an election
petition.16
(A) U.S.A- Art. 1, SEC. 6(2) says-
“no nation or Representative shall, during the time for which he was elected,
be appointed to any civil office under the authority the United States, which
shall have been created, or the emoluments whereof shall have been increased
during such time and no person holding any office under the United States,
shall be a member of either House during his continuance in office.”

13
See paras 1114 and 1115 of vol. 34 of HALSBURY’s LAWS OF ENGLAND, 4 th Edn.
14
HALSBUR’s LAWS OF ENGLAND, 4th Edn., vol. 34, para. 1116
15
HALSBURY’s LAW OF ENGLAND, 4th Edn., vol. 34 para. 1116.
16
See HALSBURY’s LAW OF ENGLAND, 4th Edn., 4TH Edn., vol. 34 ‘PARLIAMNET” paras
1117,1118 and 1119.

33
 (a) The first part of the clause disqualifies a member of Congress for
appointment to a federal office which is created, or the emolument of
which are increased17 during his term of membership.
(b) The second part disqualifies the holder of a federal office to become a
member of Congress.

But federal officers may be elected and may take his seat as a member of Congress if
he resigns his office before presenting his credentials to the House.18

(B) Australia.- Section 44-45 of the Australian Constitution Act sets forth the
disqualifications for the membership of the House of Representatives as well as
of the Senate, as follows:
“44. Any person who-
(i) Is under acknowledgement of allegiance, obedience, or adherence to a
foreign power, or is subject or citizen or entitled to the rights or
privileges of a subject or a citizen of a foreign power; or
(ii) “Is attained of treason, or has been convicted and is under sentence, or
subject to be sentenced, for any offence punishable under the law of
the Commonwealth or of a State by imprisoned for one year or
longer”; or
(iii) Is an undercharged bankrupt or insolvent”; or
(iv) Hold any office or profit under the Crown, or any pension payable
during the pleasure of the Crown out of any of the revenues of the
Commonwealth; or
(v) Has any direct or indirect pecuniary interest in any agreement with the
public services of the Commonwealth otherwise than as member and
common with the other members of an incorporated company
consisting of more than twenty five persons;

shall be incapable of being chosen or of sitting as a senator or a

member of the House of Representatives:19

17
Cf. Ex parte Levitt. (1937) 302 US 633.
18
CORWIN, CONSTITUTION OF THE U.S.A., 1953, p. 101.

34
 “but sub section (iv) does not apply to the offices 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 the Queen’s Navy or
Army, or to the receipt of pay as an officer or member of Naval or
Military Forces of the Commonwealth by any person whose services
are not wholly employed by the Commonwealth.”20

(C) Fifth French Republic.-Article 23 of the French Constitution of 1958 says:

“The function of a member of the Government shall be incompatible with the
exercise of any Parliamentary mandate, with the holding of any office, at the
national level in business, professional or labour organisations, and with any
public employment or professional activity.”

One peculiar feature of the provision, as pointed out already [under Art. 75 (5),
ante], is that it not only disqualifies or unseats a members of parliament by reason
of his having accepted an office of profit, business under the Government and the
like, but also for being appointed a minister.

Art. 84- Scope - It is not necessary to travel to clause (a) and (b) of Art. 84 in the
matter of citizenship and of age of the presidential candidate, Article 58(1)(a) and (b)
having made a scientific provision in that behalf – “Baburao Patel v. Dr. Zakir
Hussain”.21

Art. 84 or Art. 173(a) of the Constitution does not refer to any rule-making
power of the Election Commission – “P.N. Vallarsu v. Election Commission of
India”.22

It was not the intention of the Parliament to make literacy or knowledge of the
Constitution of implicit in Art. 84(a) or (173)(a) as a qualification for a person to be

19
Author’s SELECT CONSTITUTIONS OF THE WORLD, 2nd Edn., pp. 156-157.
20
See Sec.45, quoted on p.4984.
21
AIR 1968 SC 904: (1969) 2 SCR 133: (1968) 2 SCA 632 : (1968) 2 SCWR 10: (1968) 2 SCJ 490.
22
AIR 1987 Mad. 6: 1985 Writ. LR 677.

35
elected to parliament - “Baljeet Singh v. Election Commission of India”.23

Provision in Art. 84- Whether excluded by Art. 58

The acceptance of the nomination-paper of a candidate for Presidential

election is neither illegal not contrary to law on the ground that he did not subscribe to
an oath under Art. 84 (a) read with Art. 58(1)(c), as the specific provisions in Art.
58(1)(a) and Art. 58(1)(b) exclude application of Art. 84(a) and Art. 84(b) – “Baburao
Patel v. Dr. Zakir Hussain”.24

Art. 84(b)- Onus to prove disqualification as to age

Uploading the High Court’s finding that on the date of scrutiny the first
appellant/elected candidate was less than 30 years of age and was not qualified under
Art. 84(b) of the Constitution, it was further held that the onus if proof of the fact that
on the date of scrutiny of nominations the first appellant/elected candidate was less
than 30 years of age or was not having the qualifying age was on the election
petitioner. But where the election-petitioner has already proved various admissions
made by the first appellant/elected candidate, the onus in that case shifts to the latter
to prove that he was over 30 years – “Thiru John v. The Returning Office”.25

Disqualification & Doctrine of Thrown Away Votes

Where there are only two candidates in the held for a single seat and one of
them was under a statutory disqualification under Art. 84(b), the votes cast in favour
of the disqualified candidate should be regarded as thrown away, even if the voters
who had voted for him were unware of the disqualification, and the candidate
securing the next highest number of votes should be declared elected – “Viswanatha
v. Konappa”.26

23
AIR 2001 Delhi 1 (8).
24
AIR 1968 SC 904: (1969) 2 SCR 133: (1968) 2 SCA 632 : (1968) 2 SCWR 10: (1968) 2 SCJ 490
25
(1977) 3 SCC 540
26
(1969) 2 SCR 90: 39 ELR 192

36
Election of President or Vice-President- Applicability of Third Schedule

“The argument that a candidate contesting a Presidential election must take the
oath as prescribed by Art. 84(a) and since the respondent/returned candidate has not
taken such oath, his election is unconstitutional, is untenable, unasmuch as the Third
Schedule to Constitution does not prescribe any form of oath for person who desires
to contest a Presidential election” – “Charan Lal Sahu v. GainiZail Singh”.27

There is nothing in Form III-A in the Third Schedule to the Constitution,

prescribed for oath or affirmation to be made by a candidate for election to the
Parliament, under Art. 84(a) of the Constitution, requires the Returning Officer to be
in a particular position, sitting or standing, at the time of administering oath to such
candidate. In the absence of a specific provision in the Constitution or in the Act that
a Returning Officer must remain in a sitting position at the time when oath or
affirmation is made by a candidate, it cannot be said that there was violation of Article
84(a) of the Constitution so as to form a ground for setting aside the election under
sec 100(1)(d)(iv) of the R.P. Act( 1951) – “Ali SinghaniBhagwandasMadhav Singh v.
Rajiv Gandhi”.28

Oath or affirmation prescribed by Art. 84- When not necessary

The oath or affirmation prescribed by Art. 84(a) in case of election to

Parliament is not necessary for eligibility for election as President by virtue of Art.
58(1)(c) – “Baburao Patel v. Dr. Zakir Hussain”.29

It is held that as the Third Schedule does not prescribe any form of oath for a
person who desire to contest a Presidential election and consequently any such
candidate for Presidential election cannot take oath in any of the forms prescribed by

27
AIR 194 SC 309.
28
AIR 1991 All. 145:
29
AIR 1968 SC 904: (1969) 2 SCR 133: (1968) 2 SCA 632 : (1968) 2 SCWR 10: (1968) 2 SCJ 490.

37
the Third Schedule, the failure to take oath under Article 84(a) would not render the
Presidential election unconstitutional – “Charan Lal Sahu v. GainiZail Singh”.30

Art. 99. Oath or affirmation by members

“Every member of either House of Parliament shall, before taking his seat,
make and subscribe before the President, or some person appointed in that behalf by
him, an oath or affirmation according to the form set out for the purpose in the Third
Schedule”

Authorisation of persons for administering oath- Scope of

The notification issued by the Election Commission authorising the Consul-

General in New York as the person before whom an oath for the purpose of Art. 173
(a) of the Constitution may be taken by M.G. Ramchandran, the Respondent No. 4,
cannot be treated as a Rule – “P.N. Vallacrask v. Election Commission of India”.31

Administering oath while sitting on chair- Whether valid

The oath administered by the returning officer to the respondent cannot be said
to be improper merely because he was sitting on the chair wile administering to oath,
nor the election can be set aside on this ground – “VejhuraniThakurdaJhamandas v.
Sabir Shaikh”.32

Disqualification of members

“Art. 101. Vacation of seats

1. No person shall be a member of both Houses of Parliament and provision shall

be made by Parliament by law for the vacation by a person who is chosen a
member of both Houses of his seat in one House or the other

30
AIR 194 SC 309.
31
AIR 1978 Mad. 6: 1985 Writ. LR677.
32
AIR 1996 Bom.356.

38
 2. No person shall be a member both of Parliament and of a House of the
Legislature of a State and if a person is chosen a member both of Parliament
and of a House of the Legislature of a State, then, at the expiration of such
period as may be specified in rules made by the President, that persons seat in
Parliament shall become vacant, unless he has previously resigned his seat in
the Legislature of the State
3. If a member of either House of Parliament
a) becomes subject to any of the disqualification s mentioned in clause
(1) or clause (2) of Article 102, or
b) resigns his seat by writing under his hand addressed to the Chairman or the
Speaker, as the as may be, and his resignation is accepted by the chairman or
the Speaker, as the case may be, his seat shall thereupon become vacant;
Provided that in the case of any resignation referred to in sub clause (b), if
from information received or otherwise and after making such inquiry as he
thinks fit, the chairman or the Speaker, as the case may be, is satisfied that
such resignation is not voluntary or genuine, he shall not accept such
resignation
4. If for a period of sixty days a member of either House of Parliament is without
permission of the House absent from all meetings thereof, the House may
declare his seat vacant; Provided that in computing the said period of sixty
days no account shall be taken of any period during which the House is
prorogued or is adjourned for more than four consecutive days.”

“Art. 102. Disqualifications 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;
b) if he is of unsound mind and stands so declared by a competent court;
c) if he is an undischarged insolvent;

39
 d) if he is not a citizen of India, or has voluntarily acquired the citizenship of a
foreign State, or is under any acknowledgement of allegiance or adherence to
a foreign State;
e) if he is so disqualified by or under any law made by Parliament

Explanation.- For the purposes of this clause a person shall not be deemed to hold an
office of profit under the Government of India or the Government of any State by
reason only that he is a Minister either for the Union or for such State

2. A person shall be disqualified for being a member of either House of

Parliament if he is so disqualified under the Tenth Schedule”

Scope of Article 102

Art. 102 postulates the same set of disqualifications for a person seeking to be
elected as a members of Parliament, as well as for an elected member to continue as
such. It provides for pre-existing as well as supervening disqualification – “Election
Commission v. Saka Venkata Rao”.33
In view of section 10 of the Representation of People. Act, 1951 (as
substituted by Act 47 of 1966), the holding of an office in a company, in the capital of
which the Government has not less than 25 percent share, is not covered by the
disqualification laid down in Arts. 102(1)(a) and 191(1)(a) of the Constitution, as,
otherwise, this provision will be redundant – “Abdul Khuddus Anwar &ors”.34

Art. 102-Object of
“It is well settled that the object of enacting Art. 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 government 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

33
AIR 1953 SC 210: (1953) SCR 1144.
34
AIR 1969 SC 744: (1969) 1 SCC 466: 1969 Lab I C 1139: (1969) 2 SCJ 343.

40
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” – “Biharilal Dobray v. Roshan Lal
Dobray”.35
These Articles have been incorporated in order to eliminate or reduce the risk
of conflict between the duty and interest amongst the members of the Legislature and
to ensure that the Legislature does not contain persons who have received benefits
from the Executive and who consequently being under an obligation might be
amenable to its influence – “Saturcharla Chandrasekhar Raju v. Vyricherla Pradeep
Kumar Dev & Author”.36

The object of enacting provisions like Art. 102(1)(a) and Art. 191(1)(a) of the
constitution of India is that a person who is elected to Parliament or a Legislature
should be free to carry on his duties fearlessly without being subjected to any kind of
government pressure –“Ashok Kumar Bhattacharya v. Ajay Biswas”.37

Sub-clause (a) ‘office of profit’

An “office of profit is an office capable of or yielding pecuniary gain.38 The

expression office of profit is only an office which yields income or profit. Generally
it is understood that an office means a position to which where certain duties are
attached. An office of profit involves two elements namely that these should be such
an office and that it should carry some remunerations. It is not the same as holding a
part under the Government and, therefore, for holding an office of profit under the

35
(1984) 1 SCC 551: Ashok Kumar Bhattacharya v. Ajay Biswas, AIR 1985 SC 211: (1985) 1 SCC
151: (1985) 2 SCR 50; Saturcharla Chandrasekhar Raju v. Vyricherla Pradeep Kumar Dev & Author.
1992 4 SCC 404: AIR 1992 SC 1959.
36
1992 4 SCC 404: AIR 1992 SC 1959.
37
AIR 1985 SC 211: (1985) 1 SCC 151:: (1985) UJ (SC) 7: (1984) 2 MCC 285: (1985) 1 Cur. CC 339:
(1985) 2 SCR 50: 1985 Cur. Civ. LJ(SC) 316.
38
See Preamble of Parliament (Prevention of Disqualification) Act, 10 of 1959.

41
Government, a person need not be in the service of Government.39 It means an office
which yields income or profit.40”
Recently Supreme Court considered the entire law on the subject and held
thus:
“An office of profit is an office which is capable of yielding profit or
pecuniary gain. Holding an office under the Central or State Government to which
some pay, salary, emolument remuneration, or non compensatory allowance is
attached is holding an office of profit. The question whether a person is holds and
office or profit is required to be interpreted in a realistic manner. Nature of the
payment must be considered as a matter of substance rather than of forms.
Nomenclature is not important. In fact, mere use of the word honorarium cannot take
the payment out of the purview of profit, if there is pecuniary gain for the recipient.
Payment of honorarium in addition to daily allowances in the nature of compensatory
allowances, rent free accommodation and chauffeur driven car at State expense, are
clearly in the nature of remuneration and a source of pecuniary gain and hence
constitute profit.”
For deciding the question as to whether one is holding an office of profit or
not, what is relevant is whether , is the office is capable of yielding profit or pecuniary
gain or not whether the person actually obtained monetary 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. If the office
carries with it or entitles the holder to any pecuniary gain other than reimbursement of
out of pocket expenses, then the office will be an office of profit for the purpose of
Article 102(1) (a).
“When the officer carries with it certain emoluments or the order of the
appointment states that the person appointed is entitled to certain emoluments, then it
will be an office of profit, even if the holder chooses not to receive or draw such
emoluments. What is relevant is whether pecuniary gain is receivable in regard to the

39
Satrucharla Chandrasekhara Raju v.Vyricherla Pradeep Kumar Dev, AIR 19902 SC 1959.
40
Rabindra Kumar Nayak v. Collector, AIR 1999 SC 1120: (1999) 2 SCC 627.

42
office, and not whether pecuniary gain is, in fact, received or received negligible.41
An office of notary does not come within the ambit of office of profit”.42 A medical
Practitioner working as a panel doctor appointed under the Employees State Insurance
Scheme does not hold an ‘office of profit’.43 It was held in that case that an
interpretation of ‘office of profit’ which casts the net so wide that all citizen with
specialities and know how are inhibited from entering elected organs of public
administration and offering semi-voluntary services in para-official, statutory or like
projects run or directed by government or corporation controlled by the State may be
detrimental to democracy itself.
For the purpose of deciding the question of disqualification, so long as any
profit was attached to any office, it did not matter whether the profit has in fact been
appropriated or not and, therefore, there was no distinction for the purpose between
members who drew the allowance, and those who did not. Some offices may be
considered offices of profit even if the actual payment of emoluments attached might
have fallen into disuse.44 In order that an office of may be an office of profit, it is not
necessary that these must be some sort of regularity of income. Neither is it necessary
that there should be actual making of profit by the incumbent; it is enough if the
holder of the office may be reasonably be expected to make profit.45 Profit under
Article 191 of the Constitution Does not necessarily mean any remuneration in cash,
but it certainly means some kind of advantage or gain which can be perceived, the
mere influence which one may gain by his virtue of his position as a member of a
Committee which has no remuneration attached to it is not profit within the meaning
of Art. 191.46 Profit connoted the idea of pecuniary gain. If there is really a gain its
quantum of amount would not be material, but the amount of money receivable a
person in connection the office he holds may be material in deciding whether the
office really carries any profit.47”

41
Jaya Bachchan v. Union of India, AIR 2006 SC 2119; (2006) 5 SCC 266, See also Ravanna Subanna
v. G.S. Kaggerappa, AIR 1954 SC 653; Shivamurhty Swamy Inamdar v. Agadi Sanganna Andanappa,
(1971) 3 SCC 870; Shibu Soren v. Dyanand Sahay, (2001) 7 SCC 425.
42
Nityananda Behra v. State, AIR 1997 Ori 1.
43
Madhukar v. Jaswant, AIR 1976 SC 2283 : (1977) 1 SCC 70.
44
In the matter of Vindya Predesh Legislative Assembly Members, S K Sen, ELR Volume IV, p. 422.
45
Thakur Daoosing v. Venketaramanna Gowda, ELR Volume IV, p. 34.
46
Chander Nath v. Kunwar Jaswant Singh, ELR Volume III, p. 147.
47
Ravanna v. Kaggeerappa, AIR 1954 SC 953 (supra).

43
 Office of profit ....... is not a term of art and its meaning and support are well
understood. The essential characterisation of an office of profit are: (1) it involves an
appointment by State in one form or other; (2) it carries emoluments payable mostly
periodically; (3) it is for a limited period; (4) it is terminable; (5) it is not assignable;
(6) it is not heritable: (7) the holder of the office myst be sui juris.48
Neither the Constitution, Representative of People’s Act, nor the Parliament
(prevention of Disqualification) Act, 1959 as amended by Act 31 of 2006, has defined
“office of profit”. By virtue of the Act, holders of certain office are taken out of the
purview of office of profit.
This expression occurs in the following Articles 58(2); 64; 66(4); 102(1)(a)
and 191 (1)(a). The words ‘under any local or other authority’ which occurs at the end
of Articles 58(2) and 66 (4) are absent in Article 102(1) (a). In the result, though the
holding of an office of profit under an authority subject to the control of the
Government is a disqualification for the office of the President or the Vice President,
it is not a disqualification for membership of the Legislature.49
The following conditions must be satisfied in order to disqualify a person
under sub-cl. (a):
(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.

We may discuss each of the above ingredients separately.

Principle underlying the disqualification

The principle underlying this disqualification is that there should be no

conflict between the duties of a member of the Legislature as such and his private
interest and that the indebtedness of a member to Government is incompatible with

48
Gulab Chand Chordia v. Thakur Narain Singh, ELR Volume VI, p. 397.
49
Abdul Shakur v. Rikhab Chand, AIR 1958 SC 52 (55): 1958 SCR 387.

44
his independence as a representative of the people. What is the legislative end in
disqualifying holders of office of profit under Government? Obviously, to avoid
conflict between duty and interest, to cut out the misuse of official position to advance
private benefit and to avert the likelihood of influencing the Government to promote
personal advantage. This is the mischief to be suppressed.50 The object of this
provision is to secure independence of the members of the Legislature and to ensure
that the Legislature does not contain persons, who have received favours or benefits
from the executive and who. Consequently, being under an obligation to the executive
might to amenable to influences. Putting it differently, the provision appears to have
been made in order to eliminate or reduce the risk of conflict between duty and self
interest among the members of the Legislature.51 In Madhukar’s case (supra) Supreme
Court agreed that the consideration as stated in Deora’s case is important for purity of
elective offices, though it was observe that the importance of principle should not be
exaggerated to scare away men of skill in various fields into socially beneficial
projects. In 1941, and again in 1955, the question was considered by a Select
Committee of the House of Commons,52 which explained that the main considerations
underlying holders of ‘office of profit’, generally, for membership of Parliament
were”-

(1) “Incompatibility of certain non-ministerial offices with membership of the

House of Commons (which must be taken to cover questions of a member’s
relations with and duties to his constituencies)”;
(2) The need to limit the control or influence or the executive government over
the House by Means of an undue proportion of office-holders being members
of the House; and
(3) The essential condition of a certain number of ministers being members of the
House for the purpose of ensuring control of the executive by Parliament.53

50
Madhukar G.E. Pankakar v. Jaswant Chobbildas Rajani, (1977) 1 SCC 70: AIR 1976 SC 2283.
51
See Deora v. Kartar, AIR 1958 Bom 314.
52
(1955-56) HC 349.
53
Cf. May, 16th Edn.,pp.200-10.

45
 As against these, there is a countervailing consideration, namely that the
qualification for membership of the House of Commons should be on as wide a basis
as possible.54

‘Office’

1. It is hardly necessary to point out that in order to be an ‘office of

profit’ it must first be an ‘office’55 which means an employment with
‘fees and emoluments there unto belonging”.56 Office means a position
or place to which certain duties are attached, which, in the present
context, means duties of a public character.57

By ‘office’ is meant the right and duty to exercise an employment or a position

of authority and trust to which certain duties are attached.58 “Membership of
parliament is an office as much as it is a position carrying certain responsibilities
which are of a public character and it has an existence independent of the holder of
the office. Hence a member of parliament holds an office,59 but it is not an office
under the Government.60”

Appointment of a special Government pleader to assist the Government

pleader is not an appointment to an office.61 ‘Office’ is a position or place to which
duties are attached more or less of a public character. A sort of permanent position
held by successive incumbents may be with or without remuneration. It is a right to
position which has certain duties attached to it.62 A paid legal practitioner holds an
office of profit. When a lawyer who has accepted a position on the panel of railway

54
(1955-56) HC 349.
55
Henry v. Galloway, (1933) 148 LT 453 (455); Reade v. Brearley, (1933) 17 TC 687 (693).
56
BLACKSTONE, COMMENTARIES, Vol. II, p.36.
57
Ramappa v. Sangappa, AIR 1958 SC 937 : 1959 SCR 1167.
58
Shrilekha Vidyarathi v. State of U.P., AIR 1991 SC 537.
59
P.V. Narasimha Rao v. State (CBI/SPE). JT 1988 (3) SC 378.
60
Bhagwati Prasad Dixit Ghorewala v. Rajeev Gandhi, AIR 1986 SC 1534 : (1986) 4 SCC 78 ;
Bhanukumar Jain v. Kumar Gupta, AIR 2004 MP 25
61
Kanta Kathuria v. Manak Chand , AIR 1970 SC 694.
62
Pakarti Sudhashan Reddy v. District Collector, AIR 1964 AP 421. See also A. Ramachandran v. A.
Alagirisamy, AIR 1961 MAD 450: Statesman v. Deb. AIR 1968 SC 1495 : (1968) 3 SCR 614
:Madhukar G.E. Pankakar v. Jaswant Chobbildas Rajani. AIR1976 SC 2283 : (1977) 1 SCC 70.

46
pleaders for conducting suits filed against union of India on the terms and conditions
mentioned therein was held as holding an office of profit.63 Though a person have
hereditary right to an office but he has to be appointed by the Government, he holds
an ‘office’ if he has fulfilled the statutory requirements.64 The holding of an office
denotes an office and connotes its holder and this duality implies the existence of the
office as an independent continuity and an incumbent theory for the nonce. 65 A person
who does not hold an “office” is not disqualified. A person who is holding a permit to
ply buses, or a licensed stamp vendor or deed writer66 or shareholder of a transporting
postal articles and mail bags.67 A member of a Government appointed Committee
who draws a fee to meet out of pocket expenses to attend Committee meetings is not
holding an office of profit.68

Hence only holders of employments under the Government are disqualified by

the present sub-clause.69 Membership of the Legislature, thus cannot be deemed to be
an ‘office’ held under the Government.70 Similarly, an exe-Ruler does not hold an
office through the Privy Purse or political pension71 granted to him was ‘profit’.72

2. An office must be held under another person or authority,73 though

there need not to be a relationship of master and servant.74
3. The office must exist independently of the holder if the office.75 There
is no ‘office’ if the employment is only to do a particular work or to
perform specified duties and there is an end of the employment after
that work or duties are over, e.g., in the case of an contract under the
63
Mahadeo v. Shantibhai, (1969) 2 SCR 422 : (1970) 2 SCJ 407. See also Guru Govinda Basu
64
Ramappa v. Sanjappa. AIR 1958 SC 937 : (1959) SCR 1167.
65
Madhukar G.E. Pankakar v. Jaswant Chobbildas Rajani. AIR 1976 SC 2283 : (1977) 1 SCC 70.
66
Yugal Kishore Sinha v. Nagendra Prasad Yadav, AIR 1964 Pat 543 : Banomali Behra v. Markanda
Mahapatra, AIR 1961 Ori 205.
67
Satya Prakash v. Basir Ahmed Quareshi, AIR 1963 MP 316; Bremhma Durr v. Puri Purnanand, AIR
1972 All 340.
68
Shiva Murthy Swami Inamdar v. Agadi Sanganna Andanappa, (1971) 3 SCC 870.
69
See, however the statutory disqualifications in India, imposed under sub-clause (e), below.
70
Bholanath v. Krishna, 6 ELR 87.
71
Harish Chandra v. Man Singh, 5 ELR 129.
72
Daulat v. Maharaja, 6 ELR 87.
73
Ramappa v. Sangappa, AIR 1958 SC 937 : 1959 SCR 1167.
74
Guru Gobinda Basu v. Sankari Prasad, AIR 1964 SC 254 ; (1964) 4 SCR 311 : (1963) 33 Com Cases
1132.
75
Kanta v. Manak Chand, AIR 1970 SC 694 ; (1969) 3 SCC 268 : Jaineswar v. R.O., AIR 1975 Gau
61. (para, 32).

47
 Government, even though the person may be included in a list of
recognised contractors.76

‘Profit’

1. “Actual making of profit by the incumbent is not necessary to make an

‘office of profit’; it is enough if the holder of the office may
reasonably be expected to make a profit out of it.77 But the
disqualification does not relate to the holding of an office to which no
salary is attached nor is there any other profit by way of ‘fee,
allowance, reward, commodities, emoluments, perquisites or other
advantages whatsoever’. ‘profit’ is used in wide sense , and is not
confined to emoluments in the nature of a salary.78 Thus, fees for
attending the meetings of a Committee and travelling allowances and
the like would also come within the scope of the doctrine, excepting
out of-pocket expenses and reasonable subsistence allowances, but not
‘compensation for loss or remunerative time’.79”

But in Ramakrishna Hegde v. State of Karnatka,79 it was held that a member

though he was holding an office (Deputy Chairman of the Planning Commission) it is
not one for profit as the member was not drawing any salary, but only allowances i.e.,
travelling allowance, daily allowance, conveyance allowance, house rent allowance
etc.

But fee for literary articles supplied for publication have been held not to be
‘profit’ in the present context.79

2. ‘Profit’ means any pecuniary gain. The amount of such profit is

immaterial for the present purpose; but fees to reimburse out-of-pocket

76
Gobinda Basu v. Sankari Prasad, AIR 1964 SC 254 ; (1964) 4 SCR 311 : (1963) 33 Com Cases
1132; Kanta v. Manak Chand, AIR 1970 SC 694 : (1969) 3 SCC 268; Jaineswar v. R.O., AIR 1975
Gau 61. (para, 32).
77
Delane v. Hillcoat, (1829) 109 ER 115.
78
Rep. of the Select Committee on Elections, (1956) HC 145-51.
79
Ramakrishna Hegde v. State of Krnatka, AIR 1993 Kant 54.

48
 expenses do not constitute profit for the present purpose, so also
travelling allowances.80

Our Supreme Court has held80 that the Chairman of a Development Committee
who draws ‘fee’ of Rs. 6 per sitting could not be said to ‘hold an office of profit under
the Government’ within the meaning of Section 14 of the Mysore Town
Municipalities Act. 1951. The following observations of the court are to be noted:

“The plain meaning of the expression seems to be that an office must be held
under Government to which any pay, salary, emoluments or allowance is
attached. 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
receivable by a person in connection with the office he holds may be material
in deciding whether the office really carries any profit..... The fee of Rs. 6
which the non-official Chairman is entitled to draw for each sitting of the
Committee he attends, is not meant to be a payment by way of remuneration
or profit, but it is given to his as a consolidated fee for the out-out-pocket
expenses which he has to incur for attending the meetings of the committee.”80

It has been held81 that the question of ‘profit’ or ‘gain’ should be interpreted
reasonably and not divorced from reality. Thus, the mere fact that some part of the
allowances paid to a member of Wage Board, constitutes under the Bombay Industrial
Relations Act was described as daily allowance and another part as ‘honorarium’
would not ipso facto show that the part described as honorarium was a source of
profit. It is for the petitioner to discharge the burden to show that the members’ out-
of-pocket expenses were fully satisfied by the daily allowance and that he honorarium
brings him a pecuniary gain.82 The same principle has been applied where a
‘consolidated allowance’ of Rs. 100 was paid to the Chairman of Panchayat Samiti, in
addition to a daily allowance.83

The question whether a person holds an office of profit is required to be

interpreted in a realistic manner. Nature of payment must be considered as a matter of
substance rather than form. Nomenclature is not important. The mere use of the word

80
Ravanna v. Kaggeerappa, AIR 1954 SC 653 (657); S. Umarao Singh v. Darbara Singh, AIR 1969
SC 262 (265) : (1969) 1 SCR 421; Shivamurhty v. Agadi, (1970) UJSC 334 (para 15).
81
Karbhari v. Shanker, AIR 1975 SC 575 : (1975) 1 SCC 252 (para 10).
82
Karbhari v. Shanker, AIR 1975 SC 575 : (1975) 1 SCC 252 (para 10); S. Umrao Singh v. Darbara
Singh, AIR 1969 SC 262: (1969) 1 SCR 421.
83
S. Umrao Singh v. Darbara Singh, AIR 1969 SC 262: (1969) 1 SCR 421.

49
“honorarium” cannot take the payment out of the purview of profit, if there is a
pecuniary gain for the recipient. Payment of honorarium, in addition to daily
allowances in the nature of compensatory allowances, rent free accommodation and
chauffeur driven car at State expenses are clearly in the nature of remuneration and a
source of pecuniary gains and constitute profit. If the pecuniary gain is “receivable’
even if not actually received, disqualifies the person under this Article.84 In common
parlance the expression “profit” connotes an idea some pecuniary gain. If there is rally
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.85”

On the other hand, it has been held that a lawyer who has to be paid by a State
Railways Rs. 5 for appearing in court for obtaining adjournment in case of absence of
instruction, such payment constituted a ‘profit’ because “a lawyer would, in the
normal course, be attending the courts and if he discharges some duties while so
attending and gets paid for it clearly he derives a profit thereby”86.

In India, apart from the above judicial view87 compensatory allowance for
membership of a public Committee has been excepted by statute, namely, the
Prevention of Disqualification Act (10 of 1959) [see below].

84
Jaya Bachchan v. Union of India, AIR 2006 SC 2119 ; (2006) 5 SCC 266.
85
Shibu Soren v. Dayanand Sahay, (2001) 7 SCC 425 ; AIR 2001 SC 2583.
86
Mahadeo v. Shantibhai, (1969) 2 SCR 422.[This decision is not free from question: who will pay for
the conveyance charges of the lawyer for going to the court from his residence or office?]
87
Ravanna v. Kaggeerappa, AIR 1954 SC 653 (657); S. Umrao Singh v. Darbara Singh, AIR 1969 SC
262 (265) : (1969) 1 SCR 421; Shivamurthy v. Agadi, (1970) UJSC 334 (para 15).

50
 On the other hand, if it is paid as remuneration, it is a ‘profit’, no matter how it
accrues.

Thus the office of an Oath Commissioner, who receives fee for this services, is
an office of profit even though he receives no salary from the Government.88

3. It need not to 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’.89

Provision for rent free accommodation and chauffeur driven car at State
expense also amount to pecuniary gain.90

4. The question is whether the ‘office’ is an office of profit and not

whether the holder for the time being is making profit.91 This is the
principle according to which a member of the House of Commons who
accepts the ‘Stewardship of the Children Hundreds’ is considered to
have accepted an ‘office of profit’ (even though he does not, in fact,
receive any emoluments by virtue of his office), so as to disqualify him
for membership and he has to vacate his seat.

Similarly, where an office is remunerated by a share of profits, it cannot be

said that the person has ceased to hold an office of profit if in any particular year or
years there has been no profit in the business to which the office is attached.92

5. The real question being whether remuneration of any kind is attached

to the office, a voluntary renunciation of salary would not make the
office other than one of profit. On the same principle,

88
Abdul Shakur v. Rikhab Chand, AIR 1958 SC 52 (55) : 1958 SCR 387.
89
Ramappa v. Sangappa, AIR 1958 SC 937 : 1959 SCR 1167.
90
Shibu Soren v. Dayanand Sahay, (2001) 7 SCC 425 : AIR 2001 SC 2583; Jaya Bachchan v. Union of
India, AIR 2006 SC 2119 : (2006) 5 SCC 266.
91
Delane v. Hillcoat, (1829) 109 ER 115.
92
Henry v. Galloway, (1933) 148 LT 453.

51
 “If a person holds an office and the office of profit...... no application
of the income, which he may think proper to make as between himself
and other persons, can for a moment affect his liability as being the
holder of an office of profit.”93
6. The payment, in order to constitute ‘profit’, must be made by reason of
the person’s holding the office.94

It follows from the above, that the disqualification cannot continue after a
person has ceased to hold the office of profit in question.95 On the same principle,
when a person is not paid remuneration for any work, but is given some present or gift
in recognition of his past services96 it cannot be said that he is still holding an office
of profit.

‘Office under the Government’

Another essential condition for the application of the present sub-clause is that
must be an office held ‘under the Government’’. Broadly speaking, an office is held
under an authority if the latter has the power to appoint an remove the holder of the
office. It may be noted in this connection that according to the Privy Council97
ministers of a Province under the Government of India Act, 1935 were ‘officers
subordinate to the Governor’ because to appoint and remove them vested in the
Governor.

It is, accordingly, the power of appointment and removal which determines

whether any office is held under the ‘Government of India’ (or of a ‘State’, as the case
may be). Employees of a statutory body corporate cannot said to be holding their
office under the Government where they are neither appointed nor are removable by
the Government nor are they paid out of the revenues of the Government.98

93
Reade v. Brearley, (1953) 17 TC 687 (693).
94
Stedford v. Beloe, (1930) 16 TC 505 (514); Herbert v. McQuade, (1902) KB 631 (649).
95
Cf. Duncan’s Executers v. Farmer, (1909) 5 TC 417 (422).
96
Cowan v. Seymour, (1919) 7 TC 372 (378); Cooper v. Blackston, (1906) 5 TC 347 (355).
97
Emp. V. Shibnath, AIR 1945 PC 157 (163).
98
Abdul shakur v. Rikhab Chand, AIR 1958 SC 52 (55) : 1958 SCR 387.

52
‘Government’ in this context includes all the three branches of Government –
legislative, executive and judicial, so that persons appointed to the Secretariat of the
Legislature are also officers under the Government. The word “Government” in this
Article should be interpreted liberally so as to include within its scope the Legislature,
the executive and the judiciary. Construing the word “Government” as meaning the
Executive Government only would defeat the very purpose of the provision.99 But an
elected member of the Legislative Council does not hold an office under the State
Government, for his appointed or removal does not lie within the power of the State
Government.100On a harmonious construction of Art.102 (1)(a) and 106, it cannot be
held that a member of Parliament by receiving salary and allowances payable to such
member would be disqualified for being chosen as a member of either House of
Parliament, even if the Parliament is not dissolved, when the member is re-elected101
and it was further held that such an officer is not an officer under the Government, for
his appointment and removal are not by the Government.

What is important is that the person who is sought to be disqualified must have
been appointed or be removable by the Government. In the absence of such power of
the Government over the person in question, an office had under a statutory,
corporation is not an office of profit under the Government within the meaning of Art.
102 (1)(a), whatever may be degree of control exercised by the Government over that
corporation.102
Where a person holds the office of a member of local authority, not y virtue of
appointment by the Government, but ex-officio by virtue of his being elected as a
member of the Legislature, and he can be removed by the Government only on the
passing of a resolution by that local authority, by a specified majority, it could not be
said that he was holding that office ‘under the Government’.

99
Pashupati Nath Sukul v. Nem Chandra Jain, AIR 1984 SC 399 : (1984) 2 SCC 404.
100
Ramnarain v. Ramchandra, (1957) 60 Bom LR 770 (773).
101
Bhagawati Prasad Dixit v. Rajeev Gandhi, AIR 1986 SC 1534 : (1989) 4 SCC 78.
102
Abdul Shakur v. Rikhab Chand, AIR 1958 SC (55) : 1958 SCR 387.

53
 On the other hand an auditor to a statutory corporation (e.g., a ‘Government
owned Company’) who is appointed and removed by the Government even though
he103 is paid out of the funds of the statutory corporation.
Where an appointment to in office is made by the Government and person
holds the office by reason of such appointment, it is immaterial for the present
purpose that Government has no option but to appoint a particular person (e.g., the
heir of a village patel,104 or of a Sarbarakar in Orissa).105 Similarly, where
Government has the power to dismiss an officer it is immaterial for the present that
such dismissal is not at the pleasure of the Government but has to be made under
statutory grounds.106
107
In Shivamurthy Swami v. Veerabhadrappa Veerappa, declared the test to
be applied ass to office of profit under 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 function of the holder? Does he perform the function for the
Government, and (5) Does the Government exercise any control over the performance
of those function. In a subsequent case, the court summarise the principles to be
considered whether a person holds an office of profit under the Government. The
principle are: (1) the power of the Government to appointment 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 officer
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 function to it by government may suggest that the statute
intended it to be a statutory corporative of the Government. But it is not conclusive on

103
Shivamurthy v. Agadi, (1970) UJSC 334 (para. 15).
104
Raghunath v. Kishore, AIR 1958 Ori 260 (264).
105
Hoti lal v. Raj Bahadur, AIR 1959 Raj 227 (230).
106
See, however, the statutory qualifications in India, imposed under sub-cl. (e) below.
107
Shivamurthy Swami v. Veerabhadrappa Veerappa,, (1971) 3 SCC 870.

54
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. (4) the true test of determination of the said
question depending upon the degree of control the Government has over it, the extent
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 of view of the
Government.108 For determination of the core question, i.e., the person is holding an
office of profit under the Government, each case has to be judged in the light of the
relevant provision of the Statute, and its own peculiar facts, keeping in view the object
of enacting Arts. 102 (1)(a) and 191 (1)(a), namely that there should not be any
conflict between duties and interest of an elected member to answer that the
legislative concerned does not contain persons who receives benefit from his
executives and may on that account be under its obligation and thus amenable to its
influence while discharging there legislative function.109 In Satrucharla’s case (supra)
it was observed that since under these provisions [i.e., Arts. 102 (1)(a) and 191 (1)(a)]
the right to contest being taken away on the ground of holding office of profit, such a
ban on candidature must have a substantial and reasonable nexus to the object that is
to be achieved namely the elimination of possibility of misuse of the position. It must
be from this point of view that the right to appoint and right to remove the holder of
office in many cases becomes an important and decisive test.
In Madhuker G.E. Pankakar v. Jaswant Chobbildas Rajan, 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 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.

108
Satrucharla Chandrasekhar Raju v. Vyrichoda Pradeep Kumar Dec, (1992) 4 SCC 404 : 1992
(Supp-1) SCR 408 ; AIR 1992 SC 1959.
109
See Shibu soren v. Dayanand Sahay (2001) 7 SCC 425 : AIR 2001 SC 2583.

55
Certain aspects appear to be elementary. For holding of an office of profit under the
Government, one need not in the service of the Government and there need be no
relationship of master and servant. Similarly we have to look at the substance, not the
forms. Thirdly, all the relevant factors stressed by the court, as determinative of the
holding of anc “office” under the Government need not to be conjointly present. The
critical circumstances, not the total factors, prove decisive. A practical view not
pedantic basket of tests should guide in arriving at a sensible conclusion.110
“The person whether a person holds an office of profit should be interpreted
reasonably having regard to the circumstances of the case, and the turn with which
one is concerned, as also the class of persons whose case we are dealing and not
divorced from reality.”
While Arts. 102 (1)(a) and 191 (1)(a) qualify a person holding any office of
profit under the Government of India or Government of any State. Arts. 58(2) and
(66(4) which deals disqualification of the President, Vice-President Disqualify any
person holding any office of profit under Government of India or Government of
State, or under any local or under other authority subject to the control of the
Government. Thus, there is a conscious and deliberate omission of the words “ office
of profit” under any local or other authority subject to the control and authority of the
said Governments which listing the disqualification for membership of House of
Parliament and membership of Legislative assembly.111
The disqualification of a person who holds an office of profit does not cease on his
submitting an unqualified resignation of his office, but only when the resignation is
accepted by the proper authority.112 A person merely receiving an allowance without
holding an office is not disqualified.113 A chairman of municipality who does not
receive any allowance or remuneration is not holding any office of profit.114 But a

110
See also Guru Gobind Basu v. Sankari Prasad Gosal, AIR 1964 SC 254 : (1964) 4 SCR 311; Abdul
Shakur v. Rikhab Chand, AIR 1958 SC 52: (1958) SCR 387; Kona Prabhakara Rao v. M. Seshagiri
Rao. (1982) 1 SCC 442; D.R. Guru Shantappa v. Abdul Khuddus Anwar, (1969) 1SCC 466: (1969) 3
SCR 425; Ashok Kumar Bhattacharya v. Ajay Biswash, (1985) 1 SCC 151 : (1985) 2 SCR 50.
111
Srikant v. Vasantrao, AIR 2006 SC 918 : (2006) 2 SCC 682. See also Abdul Shakur Rikhab Chand
Jain, ELR Vol. XIII, p. 149.
112
Ram Murthy v. Semba Nadar, ELR Vol. II p. 330; Bholanath v. Krishna Chandra Gupta, ELR Vol.
VI, p. 105; Daultaram v. Maharaja Ananda Chandra, ELR, Vol. VI, p. 87.
113
Pandit Harish Chandra v. Raj Man Singh,ELR, Vol. V, p.129.
114
Harnam Singh v. Jawala Prasad, ELR, Vol. xiii, p. 332.

56
chairman or President of Municipality who receives an honorarium and is under the
control of Government so far appointment, removal etc. holds an office of profit.115
The Parliament (Prevention of Disqualification) Act, 1959 without defining “office of
profit under the Government” declares that in so far as office of profit under the
Government of India or Government of any State shall not be disqualified for being
chosen as, or being a member of Parliament. The said act repealed. The Parliament
(Prevention Disqualification) Act, 1951, and the Prevention of Disqualification Act,
1953. Only very few offices were exempted under the repealed Statues. Act of 1959
was Amended by Act (20 of 1992). Later the Parliament (Prevention of
Disqualification) Amendment Ordinance was promulgated in 1993 (Ordinance of 29
of 1993) and later passes as an Act of Parliament (Act 54 of 1993). Many more
offices were added to the list in the schedule. After the decision in Jaya Bachchan
case116 it was found that more than 40 members would be disqualified on the ground
that members are holding offices of profit under the Government. Hence to avoid such
disqualification, Parliament (Prevention of Disqualification) Amendment Act (Act 31
of 2006) was passed. Section 3 of the Act was amended certain additional offices
were added to the schedule to protect it from disqualification with retrospective effect
from 4-4-1959,i.e., the date of parent Act.
The legislative has wide power to declare by law what office of office of profit
held under Government shall not disqualify. It was held in Bhagwandas v. State of
Haryana.117 “It must be remembered that Art. 191 (1)(a) of the Constitution gives a
wide power to the State Legislature to declare by law whether office or offices of
profit under the Government shall not disqualify the holder thereof from being chosen
or for being a member of the State Legislative. Classification of such offices for the
purpose of removing the disqualification has thus been left primarily to legislative
discretion. It follows that so long as this exemptive power is exercised reasonably and
with due restraint and in a manner which does not drain out Art. 191 (1)(a) of its real
content or disregard any constitutional guarantee or mandate the court will not
interfere.”

115
Hakikat Ullah v. Nathu Singh, ELR, Vol. VI, P. 10.
116
Jaya Bachchan v. Union of India, AIR 2006 SC 2119 : (2006) 5 SCC 266.
117
Bhagwandas v. State of Haryana, AIR 1974 SC 2355 (1975) 1 SCC 249.

57
For the same reason, where a person, in fact, holds an office by virtue of an
appointment by the Government, any defect in the order of appointment is immaterial
for the purpose of determining whether he is ‘holding’ an ‘office of profit.’118
If the foregoing conditions are satisfied, it is not further required that the appointment
must be ‘Government Servant’ in the strict sense of them.
The source of payment for the office may also be taken into consideration, but it is
‘not always a decisive factor’.119 Thus the following offices as regards which
Government have no power of appointment and removal, have been held not to be
offices or profit under the Government, even though the holders of the offices are
directly or indirectly paid out of Government revenues:
(a) The vice Chancellor of a University.120
(b) The teacher of Government-aided-School.121

Where a person performs functions for the Government (e.g., quashi judicial) or the
Government exercises control over the exercise of his powers or functions, it may be
predicated that his office is held ‘under the Government’;122 of course, whether such
office carries ‘profit’ is a separate question.123

Office under Statutory Corporation :-

(A) England.- “In England, the test to determine whether an employee holds ‘ an
office of profit’ under the Crown is whether he may be said to be a servant of the
Crown. Hence, in the case of employees of statutory corporations and other public
bodies, the determining criterion is whether the corporation itself may be regarded as
an agent or servant of the Crown.”

(a) The statute which creates the corporation is, of course, the primary guide. Thus, if
it states that the corporation (e.g., the Central Land Board) is to exercise its

118
Hoti Lal v. Raj Bahadur, AIR 1959 Raj 227 (230).
119
Abdul Shakur v. Rikhab Chand, AIR 1958 SC 52 (55) : 1958 SCR 387; Ramappa v. Sangappa, AIR
1958 SC 937: 1959 SCR 1167. [But such person have been excepted by Sec. 3 (j) of the Parliament
(Prevention of Disqualification) Act, 1959.]
120
Hansa Mehta v. Indubhai, (1951) 52 ELR 171.
121
Krishnappa v. Narayan Singh, 7 ELR 294.
122
Karbhari v. Shanker, AIR 1975 SC 575 : (1975) 1 SCC 252 (para. 4).
123
Tamlin v. Hannaford, (1949) 2 All ER 295.

58
 functions ‘on behalf of the minsters’, it is obviously an agent of the
Government,124 Or a ‘new Government Department’.125
(b) If the statute does not give any such express answer, the fact that the corporation
is made a distinct legal entity (e.g., the British Transport Commission), prima
facie leads to the conclusion that it is not an agent or servant of the Crown. But
this is not conclusive, and a statutory corporation may nevertheless be regarded as
an agent or servant of the Crown-
(i) If it exercises functions of a governmental character, that is, functions
which, but for the corporation, have been performed by the Crown
(e.g., making treaties and implementing treaties and other international
agreements). Hence, the Custodian of Enemy Property is a servant of
the Crown.126
(ii) If the corporation has no substantial discretion in the exercise of its
powers but has to act under the direction of the Crown. 127 The power of
appointment and removal by the Crown is one of the incidents to be
taken into consideration in this context, but it is the degree of control
exercised by Crown which offers the primary test as to whether the
corporation is a ‘servant’ or not.128

(B) India.- 1. As has been evident already, a simpler test have been applied by our
Supreme Court, namely, that of appointment and removal of the employee in question
by the Government. If the Government has this power, “the office is an ‘office of
profit’ within the meaning of the Article. Even though the employee is paid out of the
funds of the corporation.129 On the other hand, if the Government does not possess
the power, whatever control the Government may have over the employee in other
matters, would not suffice for this purpose.130”

124
Tamlin v. Hannaford, (1949) 2 All ER 295.
125
Fitzwilliams Wentworth Estate v. Minister of Town & Country Planning, (1951) 1 KB 203 (211).
126
Bank Voor Handell v. Hungarian Administrator, (1954) 1 All ER 969 (982).
127
Bank Voor Handell v. Hungarian Administrator, (1954) 1 All ER 969 (989).
128
Bank Voor Handell v. Hungarian Administrator, (1954) 1 All ER 969 (982).
129
Guru Gobinda Basu v. Sankari Prasad, AIR 1964 SC254 (258); (1964) 4 SCR 311; (1963) 33 Com
Cases 1132.
130
Abdul Shakur v. Rikhab Chand, AIR 1958 SC 52 (55); 1958 SCR 387.

59
 This theory of separate of juristic entity of a statutory corporation or a
‘Government company’ has been carried to its logical extreme to hold that when an
undertaking is transferred to a Government Company, the employees of the
Department who continue in the service of the company cease to hold offices of profit
under the Government within the meaning of Art. 191(a), even though no
arrangement of regulation is made, terminating the services of those employees under
the Government and their names continue to appear in the Official Civil List. 131 For
the same reason, an office in an ‘aided’ educational institution does not constitute a
disqualification under this clause.132

Employees of statutory body cannot be said to “hold office of profit under the
Government”, since they are neither appointed nor removed by the Government.
Their employment do not require the sanction of Government.133 A Clerk in Coal
India Ltd., a fully owned by Central Government is not holding an office under the
Government.134

Various commissions are constituted under constitution such as Planning

Commission, Finance Commission and Backward Classes Commission etc. These
Commission are constituted in discharge of executive powers, but not set up under
any constitutional obligation. Hence employment as Vice- Chairman of Planning
Commission is not an office of profit under the Central Government.135

On the other hand, an Auditor to a statutory Corporation (a’ Government

owned Company’) who is appointed and removed by the Government and is under the
control of a Government official holds an office of profit under the Government even
though he is paid out of the funds of the statutory corporation.136

2. The expression ‘office of profit under the Government’ in this Article is wider than
the expression ‘post or service under the Government’ in Arts. 309-14, because while

131
Gurushanthappa v. Abdul, AIR 1969 SC 744 (747); (1969) 3 SCR 425; (1969) 1 SCC 466.
132
Gopala v. Poul, AIR 1961 Ker 242.
133
Ashok Kumar Bhattacharya v. Ajay Biswas, AIR 1985 SC 211; (1985) 1 SCC 151.
134
Pradyut Borrdoloi v. Swapan Roy, AIR 2001 SC 296; (2001) 2 SCC 19.
135
Subbaih v. Ramakrishana Hegde, AIR 1994 Kant. 35.
136
Guru Gobinda Basu v. Sankari Prasad, AIR 1966 SC254 (258).

60
the relationship of master and servant is essential for the application of Arts. 309-14,
there need not be any such relationship for attracting Art. 102(1)(a) or 191(1)(a).137

The dictum of Guru Gobindas’ case (supra) was reiterated in Madhukar G.E.
Panikakar v. Jaswant Chobbildas Rajani,138 wherein it held that there need not be any
relationship of master and servant and several factors which the determination of the
holding of “an office” need not be conjointly present. The critical circumstances, not
the total factors, prove decisive. A Practical view, not pedantric basket of tests, should
guide in arriving at a sensible conclusion. It was held in that case that a panel of
lawyers for legal aid to the poor or a body of doctors enlisted for emergency service in
an epidemic outbreak charged with responsibilities and paid by government cannot be
a pile of office of profit. An insurance medical officer is not a government servant
(under the Maharashtra Municipalities Act, 1965), but he is more than a private doctor
with a contractual obligation, for he undertakes certain functions which are regulated
by law. Such a medical practitioner, though paid by the government is not an officer
of profit under the government. Likewise a teacher in an aided school is also not
holding an office of profit under the government merely because the school receives
grant from government.139

When a person is appointed to a post by the State Government and holds that
office during the “pleasure of the State” is an office of profit under Government, since
it means he could be dismissed at any time though the office was erected by an Act of
Legislative, i.e., Jharkhand Area Autonomous Council.140 A hereditary village officer,
though his right to office is based on heritage, he holds his office by virtue of an
appointment made by Government and hence he holds an office of profit under the
government. His works are controlled by State and also removed by it and same case
allowance is also paid out of government revenue.141 A vice- Chancellor of
University, a legislator is not holding office of profit under the Government service

137
Yugal v. Nagendra, AIR 1964 Pat 543(547).
138
Madhukar G.E. Panikakar v. Jaswant Chobbildas Rajani, (1977) 1 SCC 70.
139
Krishanappa v. Narayan Singh, ELR Vol. VII, p. 294.
140
Shibu Soren v. Dayananand Sahav, AIR 2001 SC 2853; (2001) 7 SCC 425.
141
Ramappa v. Sanjappa, AIR 1958 SC 937; (1959) SCR 1167.

61
the government has no power to appoint or dismiss them.142 A person occupying the
part of chairman of a one man commission to which post is conferred the rank of a
Minister of Cabinet and towards which budgetary provisions are made under a new
head of account of defray day to day expenses including pay is an office of profit
under the government.143 While considering whether there is disqualification of a
candidate being holder of an office of profit, 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.”144

The object of these Articles is to maintain the independence of members of the

legislature from any sort of Government control or influence. When, therefore,
Government has a say in the matter of appointment145 or removal of a person, he
should not be allowed to sit in the Legislature, even though by such appointment, the
relationship of master and servant is not constituted between such person and the
Government.146

The office must be actually held by the person

The verb ‘holds’ in sub-cl. (a) makes it abundantly clear that the person, in order to be
disqualified, must have joined the office in question and has been holding it at the
relevant date, which is the date of nomination of the candidate for election and the
date of security of the nomination paper.

142
Jyoti Prasad v. Kalka Prasad, AIR 1962 SCC 128; Ram Narain v. Ram Chandra, AIR 1958 Bom 25;
Bhagwati Prasad Dixit v. Rajeev Gandhi, AIR 1986 SC 1534; (1986) 4 SCC 78.
143
Rajashkharan v. Vatal Nagraj, AIR 2002 SC 742; (2002) 2 SCC 704.
144
Satrucharla Chandrasekhar Raju v. Vyricherla Pradeep Kumar Dev, AIR 1992 SC 1959; (1992) 4
SCC 404.
145
Gurushanthappa v. Abdul, AIR 1969 SC 744 (747); (1969) 3 SCR 425; (1969) 1 SCC 466.
146
Guru Gobinda Basu v. Sankari Prasad, AIR 1966 SC 254 (258).

62
Holding of Office- Whether

It cannot be said that a teacher’s in a Basic Training School amounts to

holding an office - “VelusamiThevar v. Raja Nainar”.147

The office of a Pramukh of ZilaParishad in Rajasthan is not an office under the

State Government within the meaning of Art. 102(1)(a) of the Constitution – “Ramlal
v. VishveshwarNath”.148

In any event the membership of Parliament is not an office under Government

and thus a Member of Parliament does not hold an office under the Government –
“Bhagwati Prasad Dixit ‘Ghorewala’ v. Rajeev Gandhi”.149

However, this view was subsequently reversed in the following judgment

“Though in the Constitution the word ‘office’ has not been used in the
provisions relating to Members of Parliament and Members of State Legislature, in
other Parliamentary enactments relating to members of Parliament the word ‘office’
has been used. Having regard to the provisions of the Constitution and the R.P, Act,
1981 as well as the Salary, Allowances and Pension of Members of Parliament Act,
1954, it can be said that Membership of Parliament is an office inasmuch as it is a
position carrying certain responsibilities which are of a public character and it has an
existence independent of the holder of the office. An MP thus holds an office” - “P.V.
Narsimha Rao v. State (CBI/SPE)”.150

Holding any office of profit under the Government- Whether

The Mohatmin (manager) of Madarsa Durga Khwaja Sahib Akbar is neither

appointed by the Government of India, nor is removable by the Government of India
nor is he paid out of the government so as to attract disqualification as contemplated

147
AIR 1960 Mad. 201: 21 Ele. LR 338.
148
AIR 1968 Raj. 249.
149
(1986) 4 SCC 78: (1986) 2 SCJ 553 (564): AIR 1986 SCC 1534.
150
AIR 1998 SC 2120: 1998 Cri .LJ 2930 :1998 AIR SCW2001: 1998(1) SCJ 529: 1998(4) SCC 626:
1998 (3) JT 318:1998 SCC (Cri) 1108:1998 (4) Supreme 1.

63
in Art. 58(2) or Art. 102(1) of the Constitution - “Abdul Shankur vs. Rikhad
Chand”.151

Even assuming that a contract for transport of postal articles and mall bags is
the holding of an office of profit under the Government, where such a contract is
entrusted to company, a shareholder of that company cannot be said to hold an office
of profit, as contemplated by Art. 102. Such a person cannot be construed as entrusted
to perform the duties of a postal officer or an employee under the government
pertaining to the carriage of postal article and mail bags - “Satya Parkash vs. Bashir
Ahmed”.152

Mere being on the panel of doctors under the Employee’s State Insurance Act.
1948 the petitioner is held not holding an office of profit under the State Government
– “Madhukar G.E. Pankakar v. J.C. Rajni”.153

Where the candidate was neither appointed as Chairman of the Corporation

nor was removable by the Government from the post, and even his compensatory
allowances were paid from the funds of the corporation and not from the coffers of
the Government, he cannot be said to be a person holding any office of profit under
the Government – “Kona Prabhakar Rao v. M. Seshagiri Rao”.154

As the appellant was neither appointed nor was removable by government and
even his compensatory allowances were paid from the funds of the Travel and
Tourism Corporation (A.P.) Private Limited and not from the coffers of the
Government, in his capacity as the part-time Chairman of the Corporation, he cannot
be said to be person holding any office of profit under the Government – “Kona
Prabhakra Rao v. M. Seshagiri Rao”.155

151
(1958) SCR 387: AIR 1958 SC 52: 1958SCJ 329: 1958 SCA 279: (1958) 1 Andh. WR (SC) 88:
(1958) 1 Mad. LJ (SC) 88.
152
AIR 1963 M.P. 316: 1963 MPLJ 614: 1963 Jab. LJ 747.
153
(1977) 1 SCC 70.
154
AIR 1981 SC 658: (1980) 4 SCC : 1980 UJ (SC) 715.
155
(1982) 1 SCC 442.

64
 The accountant-in-charge of Agartala Municipality does not hold office of
profit under the Government of Tripura and is not disqualified from being a member
of Parliament - “Ashok Kumar Bhattacharyya v. Ajay Biswas & Ors”.156

Jaya Bachchan vs Union of India and Ors157

“Facts of the case: The government of UP, by Official Memorandum dated

14.7.2004, appointed the petitioner as the Chairperson of the Uttar Pradesh Film
Development Council and Sanctioned to her the rank of a Cabinet Minister with the
Facilities. The benefits to which she became entitled, as a consequence, are:

1. Honorary of Rs. 5,000 per month;

2. Daily allowance @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 and residence, one P.S., and 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 house and hospitality
while on tour.”

“After obtaining the opinion of the Election Commission as required by the

Article 103(2) of the Constitution of India, the President of India in exercise of
powers conferred under clause (1) of the Article 103 had decided that the petitioner
stands disqualified for being a Member of Rajya Sabha on and from 14th July 2006 on
her appointment by the Government of UP as Chairperson of the U.P. Film
Development Council terming the same as ‘office of Profit’ under the government of
Uttar Pradesh.”

156
AIR 1985 SC 211: (1985) 1 SCC 151: 1985 UJ (SC) 7: (1984) 2 MCC 285: (1985) 1 Cur. CC 339:
(1985) 2 SCR 50: 1985 Cur. Civ. LJ (SC) 316.
157
Writ petition (civil) 199 of 2006

65
 The Petitioner Challenged the both the said decisions of the President of India as
well as the opinion of the Election Commission rendered by it to the President of
India.

Petitioner Contention

The petitioner relied on the decision in “Umrao Singh Vs. Darbara Singh”158
and “Divya Prakash Vs. Kultar Singh Rana and Anr”.159 and also referred to
“Biharilal Dobur Vs. Roshan Lal Bobur”160 and contending 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 or
other facilities from the State Government.”

Court Observation

1. “It is not in dispute that the Council is not an autonomous body or statutory
corporation, that the council has no budget of its own, and that all its expenses
are met by the department of the State Government administratively in- charge
of it. Similarly, the fact that petitioner was appointed as Chairperson of the
council, conferring on her rank of the Cabinet Minister entitling her all the
remuneration and benefits, also not disputed.”
2. “Clause (1) (a) of the Article 102 provides 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 of India or the
Government Of any State, than an office declared by Parliament by law not to
disqualify its holder. The term ‘holds and office of profit’ not defined, has
been the subject matter of interpretation, in several decisions of Supreme
Court. An office of profit is an office which is capable of yielding a profit or
pecuniary gain. Holding an office under the Central or State Government, to
which some pay, salary, emolument, remuneration or non-compensatory

158
(1969) 1 SCR 421
159
(1975) 1 SCR 264
160
(1984) 1 SCR 551

66
 allowance is attached, is ‘holding an office of profit’. The question whether a
person holds an office of profit is required to be interpreted in a realistic
manner. Nature of the payment must be considered as a matter of substance
rather than of form. Nomenclature is not important. In fact, mere use of the
word ‘honorarium’ cannot take the payment out of the purview of profit, if
there is pecuniary gain for the recipient. Payment of honorarium, in addition to
daily allowances in the nature of compensatory, rent free accommodation and
chauffeur driven car at State expense, are clearly in the nature of remuneration
and a source of pecuniary gain and hence constitute profit. For deciding the
question as to whether one is holding office of profit or not, what is relevant is
whether the office is capable of yielding a profit or pecuniary gain and not
whether the person actually obtained a monetary gain. If ‘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. It the
office carries with it, or entitles the holder to, any pecuniary gain other than
reimbursement of out of pocket/actual expenses, the office will be an office of
profit for the purpose of Article 102 (1) (a).” This position of law stand settled
for over half a century commending from the decision of “Ravanna Subanna
Vs. G.S.Kaggeerapa”161, “Shivamurthy Swami Inamdar Vs. Agadi Sanganna
Anadanappa” 162 and “Shibu Soren Vs. Dyanand Sahay and Ors”.163
3. Learned Counsel for the petitioner has also referred to “Biharilal Dabray Vs.
Roshanlal Dabray”164 and contended “that it was held that when a candidate is
appointed in an honorary capacity without any remuneration even though post
carries remuneration, he cannot be said to be holding an office of profit and
thus was not disqualified under Article 191 (1) (a) of the Constitution. In
Biharilal Dabray’s case (supra) it was held that respondent was holding an
office of profit under the State Government and his nomination was rightly

161
AIR 1954 SC 653
162
1971 (3) SCR 870
163
2001 (7) SCC 425
164
(1984) 1 SCC 551

67
 rejected by the Returning Officer. In that case, the only question was whether
the post the respondent holding was one under the State Government or not.”
4. “A careful examination of the decision relied upon by the learned counsel on
behalf of the petitioner shows that each of those cases turned on its own facts
and did not lay down any proposition of law contrary to what has been laid
down in a series of decisions starting from Ravanna Subanna to Shibu Soren.
It is well settled that where the office carries with it certain emoluments or the
order of appointment states what the person appointed is entitled to certain
emoluments, and then it will be an office of profit, even if the holder of the
office chooses not to receive/draw such emoluments. What is relevant is
whether a pecuniary gain ‘receivable’ in regard to the office and not whether
pecuniary gain is, in fact received or received negligibly.”

Judgement

The Apex court held that in this case, the office carried with it a monthly
honorarium of Rs. 5000/-, entertainment expenditure of Rs. 10,000-, staff car with
driver, telephones at offices and residence, free accommodation and medical
treatment facilities to self and family members, apart from other allowances etc. that
these are pecuniary gain, cannot be denied. The fact that the petitioner is affluent or
was not interested in benefits/facilities given by the State Government did not, in fact
receive such benefits till date, are not relevant to the issue. In accordance with this
view, the question whether petitioner actually received any pecuniary gains or not is
of no consequence. The Apex court found no merit in the writ petition and the same
was, accordingly, dismissed.”

“Offices not covered Under the Definition “Office of Profit”

According to the section 3 of The Parliament (Prevention of Disqualification)

Act, 1959 any Person Holding the following offices shall not be disqualify from being
chosen as, or for being member of Parliament :

(i) Any office held by a Minister, Minister of State or Deputy Minister for the
Union or for any State, whether ex Officio or by name,

68
(ii) The office of a leader of the Opposition in Parliament,
(iii) The office of Deputy Chairmen, Planning Commission,
(iv) The office of each leader of recognised party and recognised group in the
Parliament,
(v) The office of Chief Whip, Deputy chief Whip in Parliament or of a
Parliamentary Secretary,
(vi) The office of Chairperson of:-
(a) the National Commission for Minorities Constituted under section 3 of
the National for Minorities Act (1992),
(b) the National Commission for Schedule castes and Schedule Tribes
constituted under the clause (i) of Article 338 of the Constitution,
(c) National Commission for Women constituted under the section 3 of the
National Commission for Women Act (1990),
(vii) The office of a member of any force raised or maintained under the National
Cadet Corps Act (1948), the Territorial Army Act (1948), or the Reserve and
Auxiliary Air Forces Act (1952),
(viii) The office of a member of a Home Guard constituted under any law for the
time being in force in any State,
(ix) The office of sheriff in the city of Bombay, Calcutta or Madras,
(x) The office of chairman or member of the syndicate, executive committee,
council or court of a university or any other body connected with a university,
(xi) The office of a member of any delegation or mission sent outside India by the
Government for any special purpose:
(xii) The office of chairman or member of a committee (whether consisting of one
or more members), set up temporarily for the purpose of advising the
Government or any other authority in respect of any matter of public
importance or for the purpose of making an inquiry into, or collecting statistics
in respect of any such matter, if the holder of such office is not entitled to any
remuneration other than compensatory allowance;
(xiii) The office of chairman, director or member of any statutory or non-
statutory body other than any such body as is referred to in clause (h), if the

69
 holder of such office is not entitled to any remuneration other than
compensatory allowance, but excluding ;
(a) The office of chairman of any statutory or non-statutory body specified
in Part I of the Schedule,165
(b) The office of chairman or secretary of any statutory or non-statutory
body specified in Part II of the Schedule and
(c) The office of deputy chairman of the non- statutory body specified
in Part III of the Schedule];
(xiv) The office of village revenue officer, whether called a lambardar, malguzar,
patel, deshmukh or by any other name, whose duty is to collect land revenue
and who is remunerated by a share of, or commission on, the amount of land
revenue collected by him, but who does not discharge any police functions.”

Besides the number of Offices given under section 3 of the Parliament

(Prevention of Disqualification) Act, 1959 a list of offices are also given in the
Schedule contained in the said Act. According to the Section 3(i) excluding the office
of Chairmen of any Statutory or non Statutory body specified in Part 1of the Schedule
and the Offices the Chairman or Secretary of any statutory or non statutory body
specified in Part 2 of the Schedule offices under the various bodies those are comes
under the Central or State Governments are also out of the purview of the “Office of
Profit”

Bodies under the Central Government (Part 1 of the Schedule)166

1. Air India International Corporation established under section 3 of the Air

Corporations Act (1953),
2. Air Transport Council constituted under section 30 of the Air
Corporations Act (1953),
3. Board of Directors of the Export Risks Insurance Corporation Ltd,
4. Board of Directors of the Heavy Electricals Ltd,
5. Board of Directors of the Hindustan Cables Ltd,

165
Subs. by Act 20 of 1992, s.2, for certain words and letters.
166
See section 3 (j) of the The Parliament (Prevention of Disqualification) Act, 1959

70
 6. Board of Directors of the Hindustan Insecticides Ltd,
7. Board of Directors of the Hindustan Machine Tools Ltd,
8. Board of Directors of the Hindustan Shipyard Ltd,
9. Board of Directors of Hindustan Chemicals and Fertilizers Ltd,
10. Board of Directors of the National Coal Development Corporation
(Private) Ltd,
167
11. Board of Directors of the National [Industrial] Development
Corporation Ltd,
12. Board of Directors of the National Instruments Ltd,
13. Board of Directors of the National Small Industries Corporation Ltd,
14. Board of Directors of the Neyveli Lignite Corporation (Private) Ltd,
15. Board of Directors of the Sindri Fertilizers and Chemicals Ltd,
16. Board of Directors of the State Trading Corporation of India Ltd,
17. Central Warehousing Corporation estd. u/s 17 of Agricultural,
18. Produce (Development and Warehousing) Corporations Act (1956),
19. Coal Board established under section 4 of the Coal Mines (Conservation
and Safety) Act (1952),
20. Coal Mines Labour Housing Board estd. u/s 6 of the Coal Mines Labour
Welfare Fund Act (1947),
21. Commissioners for the Port of Calcutta,
22. Committee for the allotment of land in the township of Gandhidham,
23. Company Law Advisory Commission estd. u/s 410 of Companies Act
(1956),
24. Cotton Textiles Fund committee estd. under the Textile Funds Ordinance
(1944),
25. Dock Labour Board Bombay, estd. under the Bombay Dock Workers
(Regulation of Employment) Scheme, 1956 made under the Dock
Workers (Regulation of Employment) Act (1948),

167
Ins. by s.3 and the Second Schedule, ibid.

71
 26. Dock Labour Board, Calcutta, estd. under the Calcutta Dock Workers
(Regulation of Employment) Scheme, 1956, made under the Dock
Workers (Regulation of Employment) Act (1948),
27. Dock Labour Board Madras, estd. under the Madras Dock Workers
(Regulation of Employment) Scheme, 1956, made under the Dock
Workers (Regulation of Employment) Act (1948),
28. Forward Markets Commission estd. u/s 3 of the Forward Contracts
(Regulation) Act (1952),
29. Indian Airlines Corporation estd. u/s 3 of the Air Corporations Act (1953),
30. Industrial Finance Corporation of India estd. u/s 3 of the Industrial
Finance Corporation Act (1948),
31. Licensing Committee estd. u/rule 10 of the Registration and Licensing of
Industrial Undertakings Rules (1952), made under the Industries
(Development and Regulation) Act,
32. Mining Boards estd. u/s 12 of the Mines Act, 1952 (34 of 1952),
33. National Co-operative Development and Warehousing Board estd. u/s 3
of the Agricultural Produce (Development and Warehousing) Corporations
Act (1956),
34. Rehabilitation Finance Administration estd. u/s 3 of the Rehabilitation
Finance Administration Act (1948),
35. Tariff Commission estd u/s 3 of the Tariff Commission Act (1951),
36. Trustees of the Port of Bombay,
37. Trustees of the Port of Madras,
38. Trustees or Commissioners of any major port as defined in the Indian
Ports Act (1908), other than the Port of Calcutta, Bombay or Madras.

Bodies under the State Government (Part 1 of the Schedule)168

Andhra Pradesh

(i) Agricultural Improvement Fund Committee estd. u/s 3 of the Hyderabad

Agricultural Improvement Act (1952),
168
See section 3 (j) of the The Parliament (Prevention of Disqualification) Act, 1959

72
(ii) Co-operative Agricultural and Marketing Development Fund Committee,
(iii) Livestock Purchasing Committee,”

Assam

(i) Adhi Conciliation Boards estd. u/s 2A to the Assam Adhiars Protection and
Regulation Act (1948),
(ii) Assam Evacuee Property Management Committee estd. u/s 12 of the Assam
Evacuee Property Act (1948),
(iii) Assam Text Book Committee.

Bihar

(i) Mining Board for Coal Mines Text Book and Education Literature
Committee,

Bombay

(i) Allocation Committee (Allopathic) under the Employees’ State Insurance

Scheme,
(ii) Allocation Committee (Ayurvedic) under the Employees' State Insurance
Scheme,
(iii) Board to conduct over-all supervision of the business and affairs of the
Narsinggiriji Mills, Sholapur,
(iv) Bombay Housing Board estd. u/s 3 of the Bombay Housing Board Act(1948),
(v) Bombay State Electricity Board estd. u/s 5 of the Electricity (Supply)
Act(1948),
(vi) Bombay State Electricity Consultative Council constituted under section 16 of
the Electricity (Supply) Act(1948),
Medical Service Committee under the Employees' State Insurance Scheme,
(vii) Pharmaceutical Committee under the Employees' State Insurance Scheme,
(viii) Regional Transport Authority for Ahmedabad, Aurangabad, Bombay, Nagpur,
Poona, Rajkot and Thane estd. u/s 44 of the Motor Vehicles Act(1939),

73
(ix) Saurashtra Housing Board estd. u/s 3 of the Saurashtra Housing Board Act
(1954),
(x) State Transport Authority estd, u/s 44 of the Motor Vehicles Act(1939),
(xi) Vidarbha Housing Board estd. u/s 3 of the Madhya Pradesh Housing Act
(1950).

Kerala

(i) Board of Examiners constituted u/rule 8 of the Travancore-Cochin Boiler

Attendants Rules (1954),
(ii) Panel of Assessors appointed u/rule 63 of the Travancore-Cochin Boiler
Attendants Rules (1954),
(iii) Panel of Assessors appointed under the Travancore-Cochin Economiser Rules
(1956).

Madhya Pradesh

(i) Madhya Pradesh Housing Board estd. u/s 3 of the Madhya Pradesh Housing
Board Act (1950),
(ii) Mahakoshal Housing Board.

Tamil Nadu

(i) Committee to Select Books for Study for S.S.L.C. Examination. Landing and
Shipping Frees Committees for Minor Ports,
(ii) Local Committee estd. under regulation 10A of the Employees' State
Insurance (General) Regulation (1950),
(iii) Madras Board of Transport.
(iv) Tamil Nadu Electricity Board estd. u/s 5 of the Electricity (Supply) Act
(1948),
(v) Madras State Electricity Consultative Council estd. u/s 16 of the Electricity
(Supply) Act (1948),
(vi) Port Conservancy Boards,
(vii) Port Trust Boards of Minor Ports,

74
(viii) State Board of Communications,
(ix) Text Books Committee,

Karnataka

(i) Board of Management, Mysore Iron and Steel Works, Bhadravathi,

(ii) Board of Management of Industrial Concerns.

Orissa

(i) Appeal Committee under the Board of Secondary Education,

(ii) Orissa Board of Communications and Transport,
(iii) Regional Transport Authority estd. u/s 44 of the Motor Vehicles Act (1939),
(iv) State Transport Authority estd. u/s 44 of the Motor Vehicles Act (1939).

Punjab

(i) Punjab State National Workers (Relief and Rehabilitation) Board,

Rajasthan

(i) City Improvement Trust, Kota, estd. under the City of Kota Improvement Act
(1946),
(ii) Excise Appelate Board, Ajmer,
(iii) Rajasthan State Electricity Board constituted under section 5 of the Electricity
(Supply) Act (1948),
(iv) Urban Improvement Board, Jaipur.

Uttar Pradesh

(i) Government Cement Factory Board,

(ii) Local Committees for Agra, Kanpur, Lucknow and Saharanpur constituted u/s
25 of the Employees' State Insurance Act (1948),
(iii) Sub-Committee to select books for Educational Expansion Department,

75
(iv) U.P. Sugar and Power Alcohol And Labour Housing Board estd u/s 10 of the
Uttar Pradesh Sugar and Power Alcohol Industries Labour Welfare and
Development Fund Act (1950).

West Bengal

(i) Licensing Board established under the regulations made under rule 45 of the
Indian Electricity Rules (1956),
(ii) West Bengal Housing Board established under the West Bengal Development
Corporation Act (1954).

Bodies in Union Territories

(i) Delhi Development Authority established u/s 3 of the Delhi Development Act
(1957),
(ii) Delhi Electricity Power Control Board established u/s 5 of the Bombay
Electricity (Special Powers) Act (1946) as applied to Delhi.
(iii) Delhi State Electricity Council established u/s 16 of the Electricity (Supply)
Act(1948).

Part II

Bodies Under The Central Government 169

1. Advisory Committee for the Air-India International Corporation constituted

u/s 41 of the Air Corporations Act (1953),
2. Advisory Committee for the Indian Airlines Corporation constituted u/s 41 of
the Air Corporations Act (1953),
3. Central Silk Board appointed u/s 4 of the Central Silk Board Act (1948),
4. Coffee Board appointed u/s 4 of the Coffee Act (1942),
5. Coir Board appointed u/s 4 of the Coir Industry Act (1953),
6. Development Council for Acids and Fertilizers constituted u/s 6 of the
Industries (Development and Regulation) Act (1956),

169
See section 3 (j) of the The Parliament (Prevention of Disqualification) Act, 1959

76
7. Development Council for Alkalis and Allied Industries constituted u/s 6 of the
Industries (Development and Regulation) Act (1951),
8. Development Council for Bicycles constituted u/s 6 of the Industries
(Development and Regulation) Act (1951),
9. Development Council for Drugs, Dyes and Intermediates constituted u/s 6 of
the Industries (Development and Regulation) Act (1951),
10. Development Council for Food Processing Industries constituted u/s 6 of the
Industries (Development and Regulation) Act (1951),
11. Development Council for Heavy Electrical Engineering Industries constituted
u/s 6 of the Industries (Development and Regulation) Act (1951),
12. Development Council for Internal Combustion Engines and Power Driven
Pumps constituted u/s 6 of the Industries (Development and Regulation) Act
(1951),
13. Development Council for Light Electrical Engineering Industries constituted
u/s 6 of the Industries (Development and Regulation) Act (1951),
14. Development Council for Machine Tools constituted u/s 6 of the Industries
(Development and Regulation) Act (1951),
15. Development Council for Non-ferrous Metals including alloys constituted u/s
6 of the Industries (Development and Regulation) Act (1951),
16. Development Council for Oil-baded and Plastic Industries constituted u/s 6 of
the Industries (Development and Regulation) Act (1951),
17. Development Council for Sugar Induaiy constituted u/s 6 of the Industries
(Development and Regulation) Act (1951),
18. Development Council for Textiles made of artificial silk including artificial
silk yarn constituted u/s 6 of the Industries (Development and Regulation) Act
(195),
19. Development Council for Textiles made of artificial silk including artificial
silk including artificial silk yarn constituted u/s 6 of the Industries
(Development and Regulation) Act (1951),
20. Development Council for Textiles made of wool including woollen yarn,
hosiery, carpets and druggets constituted u/s 6 of the Industries (Development
and Regulation) Act (1951),

77
 21. Durgah Committee, Ajmer, established u/s 4 of the DurgahKhwajaSaheb Act
(1955),
22. Indian Central Arecanut Committee,
23. Indian Central Coconut Committee established u/s 4 of the Indian Coconut
Committee Act (1944),
24. Indian Central Cotton Committee established u/s 4 of the Indian Cotton Cess
Act (1923),
25. Indian Central Jute Committee,
26. Indian Central Oilseeds Committee established u/s 4 of the Indian Oilseeds
Committee Act (1946),
27. Indian Central Sugarcane Committee,
28. Indian Central Tobacco Committee,
29. Indian Lac Cess Committee established u/s 4 of the Indian Lac Cess Act
(1930),
30. Rubber Board established u/s 4 of the Rubber Act (1947),
31. Tea Board established u/s 4 of the Tea Act (1953).

Bodies Under State Governments

(i) Andhra Pradesh Market Committee established u/s 4 of the Hyderabad

Agricultural Market Act No. II of 1339.
(ii) Market Committee established u/s 4 of the Madras Commercial Crops Markets
Act, 1933.

Bihar

(i) Bihar State Board of Religious Trusts,

(ii) Bihar Subai Majlis Awqaf,
(iii) Bodh Gaya Temple Advisory Committee established u/s 15 of the Bodh Gaya
Temple Act (1949),
(iv) Bodh Gaya Temple Management Committee established u/s 3 of the Bodh
Gaya Temple Act (1949).

78
Kerala

(i) Administration Committee for Coir Purchase Scheme,

(ii) Malabar Market Committee established u/s 4A of the Madras Commercial
Crops Markets Act (1933),
(iii) Tapioca Market Expansion Board.

Tamil Nadu

(i) Area Committee for Hindu Religious and Charitable Endowments established
u/s 12 of the Madras Hindu Religious and Charitable Endowments Act (1951),
(ii) Madras State Waqf Board established u/s 9 of the Waqf Act (1954).

Punjab

(i) State Marketing Board constituted under section 3 of the Patiala Agricultural
Produce Markets Act, 2004.

Whether Part-time Correspondent/Staff Artist of Air holds an office of profit

A person cannot be said to have been holding an office of profit under the
Government of India, when empowering on part-time basis as a staff Artist/Part-Time
Correspondent in the All India Radio, and therefore, is not disqualified for being
chosen as a Member of Parliament. Held that acceptance of the nomination-paper of
such a person cannot be said to be improper - “Brahma Dutt v. Nand Family”.170

A Government Servant- Whether holds office of profit after resignation

As per the facts of the case, the appellant was holding the post of an
Investigator as a temporary government servant in the U.T. of Dadra and Nagar
Haveli. His appointment was subject to the condition that before resigning the post, he
shall have to remit one month’s notice pay before he could be relieved from Service
vide/clause 6 of his appointment order with a view to file nomination-paper by 27th
November, 1984, the appellant submitted his resignation from the post on 21st

170
AIR 1972 All. 340.

79
November, 1984 by tendering along with the letter a demand-draft for one month’s
salary on the plea that his resignation was covered by Rule 5(1)(a) of the C.C.S.
(Temporary Service) Rules and on 24th November handed over the records, files,
registers etc. No specific reference to clause 6 of his appointment-order was, however,
made therein. The administration informed on 26th November that his resignation
would take effect only on expiry of one month from the date of his resignation as per
rule 5(1) of the C.C.S. (Temporary Service) Rules. The appellant then on 27th
November stated that his resignation had been submitted in pursuance of clause 6 of
his appointment order, to which the Administration reiterated on 21st December that
his resignation would take effect only on expiry of one month from 21st November i.e.
the date of his resignation, and returned the demand-draft.

On the facts of the case, and in view of the election-petitioner’s failure to discharge
the burden of proof otherwise, held to be a government servant from 10:00 A.M. on
24th November, 1984 before he submitted his nomination-paper on 24th November,
1984 - “Sitaram JivyabhaiGavall v. Ramjibhai P. Mahala”.171

“In view of the provision of the Bengal Municipal Act, 1932 as extended to
Tripura, it is clear that the State Government does not exercise any control over
offices like Accountant-in-charge and that an Accountant-in-charge continues to be an
employee of the Municipality, though his appointment is subject to the confirmation
by the Government. Just by reason of this condition an employee of a local authority
does not cease to be an employee of the Municipality and does not become an
employee of the Government” - “Ashok Kumar Bhattacharyya v. Ajay Biswas
&Ors”.172

Disqualification-Material time for the purpose of

The date of commencement of disqualification in the case of a person for

being chosen as a member should be date of his election i.e. the date of declaration of

171
(1987) 2 SCC 262: AIR 1987 SC 1293.
172
AIR 1985 SC 211: (1985) 1 SCC 151: 1985 UJ (SC) 7: (1984) 2 MCC 285: (1985) 1 Cur. CC 339:
(1985) 2 SCR 50: 1985 Cur. Civ. LJ (SC) 316.

80
the result of the election according to section 67A of the Representation of the People
Act, 1951, and such date is to be the focal point of time in an inquiry into any alleged
disqualification - “V.C. Shukla v. Purshottam Lal Kaushik”.173

Disqualification-whether

Petitioner, Smt. Hans Raj Mehta was appointed Vice-Chancellor of the

University of Baroda by the Government of Baroda before Baroda was merged with
Bombay. She received an honorarium of Rs. 500/- per month, a car-allowance and
free furnished house from the funds of the University. It was held that even though the
petitioner received her allowances from the funds of the State direct, as she was
appointed by the Government of Baroda, and was liable to be removed by the
Government, she was disqualified under Art. 102(1)(a) of the Constitution for being
chosen as a member of the Parliament - “HansaJivraj Mehta v. Indubhai Amin”.174

Where the last date for filling nomination was 9/1/69 and the result of the
election was declared on 11/2/69, but the returned candidate had been convicted on
11/1/69 and was later acquitted by the appellate court on 30/9/69. Held that while
pronouncing the judgement on 27/10/69, the High Court was right in holding that the
returned candidate was not disqualified and that the election was not void on the
ground - “Manni Lal v. Parmal Lal”.175

“In any event the membership of Parliament is not an office under the
Government so the fact that the Lok Sabha had not been dissolved on the date on
which the election was held would not amount to a disqualification in the case of the
respondent who was a member of the Lok Sabha, for being a candidate at the next
general election” - “Bhagwati Prasad Dixit ‘Ghorewala’ v. Rajeev Gandhi”.176

“But having regard to the provisions of the Constitution, the Representation of

the People Act, 1951 and the Salary, Allowance and Pension of Members of

173
(1981) 2 SCC 84: AIR 1981 SC 547: (1981) 2 SCR 637.
174
(1952) 1 Ele.LR 171 (Ele. Tr. Baroda)
175
AIR 1971 SC 330: (1971) 2 SCJ 260: (1971) 2 SCA 213: (1971) 1 SCR 798: (1970) 2 SCC 462.
176
(1986) 4 SCC 78: (1986) 2 SCJ 553 (564): AIR 1986 SCC 1534.

81
Parliament Act, 1954, it can be said that membership of Parliament is an office
inasmuch as it is a position carrying certain responsibilities of public character and it
is has an existence independent of the holder of the office.” However, holding of such
office is saved from incurring disqualification by the law made by the Parliament
under clause (a) of Art. 102 - “P.V. Narsimha Rao v. State (CBI/SPE)”.177

Office of Chairman of Interim Council of Jharkhand Area Autonomous Council

having been constituted by the State Govt. under the Jharkhand Area Autonomous
Council Act and the State Government having complete control over such Council
under the Act is an office of profit and the candidate holding such office is held
disqualified for being elected as a member to the Council of States, under Art 102(a)
of constitution - “Daya Nand Sahay v. Shibu Soren”.178

Decision on questions as to disqualifications of members

Provisions under other Constitutions

(A) England. - Either House of Parliament has the right to provide for its due
composition and to decide questions as to the legal qualifications of its
members.
(a) If it is alleged that any candidate who has been elected is disqualified, his
right to sit and vote in the House of Commons must be decided by the
House itself.

As regards disqualifications arising under the House of Commons Disqualifications

Act,1957, 1975, the House itself has been empowered to give relief in proper cases,
where disqualification is alleged in the House. Apart from this, the Act gives a right to
any person to seek a declaration by an application to the Crown that a member of the
House is disqualified under the Act. Application shall then be referred to the judicial
committee Act, 1833. As regards disqualification under the Act, this is an alternative
method to an election petition, though without time limit. The judicial committee may

177
AIR 1998 SC 2120: 1998 Cri .LJ 2930 :1998 AIR SCW2001: 1998(1) SCJ 529: 1998(4) SCC 626:
1998 (3) JT 318:1998 SCC (Cri) 1108:1998 (4) Supreme 1.
178
AIR 2001 Pat, 79.

82
direct an issue of fact to be tried in the High Court whose decision shall be final. A
declaration may not be made however, if an election petition is pending or has been
tried or if the House of Commons has directed that the disqualification shall be
disregarded.179 This jurisdiction of Privy Council is, however limited to
disqualifications incurred under the House of Commons Disqualification Act, 1957.

(b) Since the Parliamentary Election Act, 1868, replaced by the Representative of
the People Act, 1949, cases of election disputes (as distinguished from
questions relating to disqualifications of members where the election is not
disputed by a petition under these Acts) are determined not by the House but
by two Judges of the High Court who are appointed to hear election petitions.
The Judges report their decision to the House and the House then passes
orders for giving effect to the decisions. [see, further, under Art. 324 post].
The distinction is clearly brought by the following observations in Anson’s
Law and Custom of the Constitution.180

“The House has given over to the Law Courts the right to determine
controverted elections: that is to say, which are called in question on the ground that a
candidate, otherwise properly qualified for a seat, has been, returned in an informal
manner, or by reasons who are not entitled to vote, or by votes procured through
improper inducements. But it retains the right to pronounce at once on the existence
of legal disqualifications in those returned to Parliament, and will declare a seat to be
vacant, if members returned is subject to such disqualifications, without awaiting for
the return to be questioned by persons interested in the matter.”181

(B) U.S.A.- Under Art. I. Sec.5 (1) or the American Constitution, similarly-
‘Each House shall be the judge of the elections, returns and disqualifications
of its own members”.

179
See HOOD PHILLIPS AND JACKSON ON CONSTITUTIONAL AND ADMINISTRATIVE
LAW, 8th Edn. 2001,Chap. X, “THE HOUSE OF COMMONS’, para 10.013. at p. 207. See also
CONSTITUTIONAL LAW AND ADMINISTRATIVE LAW by A.W. BRADLEY and K.D. EWING,
13th Edn. 2003, Chap IX, “Composition and Meeting of Parliament’ at p. 172.
180
ANSON’s LAW AND CUSTOM OF THE CONSTITUTION ,1922, VOL. II, PP.181-82,
HALSBUR’s 4th Edn. Vol. 15. Paras, 573, 930.
181
Michael Davitt’s case, (18882) 137 CJ 140; Wenslydale Peerage case, (1856) 140 Hans 3.

83
 Hence the power to decide both election disputes and question relating to the
disqualification of members belongs to each House of Congress. In exercising
this power each House acts as Judicial Tribunal, having the power, to summon
witnesses 182 and to punish them for perjury.183
(C) Japan,- The Japanese Constitution, similarly [Art. 55], gives to each House
the power to judge disputes relating to disqualification of its members; but a
special majority of two-third of the members present is required to unseat a
member.
(D) West Germany. - Art. 41 of the West German Constitution of 1949 says:

“(1) The Scrutiny of elections is the responsibility of the Bundestag. It also

decides whether a deputy has lost his seat in the Bundestag.

(2) Against the decision of the Bundestag an appeal can be made to the
Federal Constitutional Court.
(3) Details will be regulated by a Federal law.”
(E) France.- Art. 8 of the Constitution of the Fourth French Republic Provided:
“Each of the two chambers shall be judge of the eligibility of its members and
of the regularity of their election.”
Under the Constitution of 1958, the matter is left to be dealt with by an
organic law(Art.25).
(F) Australia.- Section 47 of the Australian Constitution Provides :
“Until the Parliament otherwise provides, any question respecting the
qualification of a senator or of a member of the House of Representative, or
respecting a vacancy in either House of the Parliament, and any question of a
disputed election to either House, shall be determined by the House in which
the question arises.”
According to this provision, thus, question as to disqualification of a member
as well as election disputes are determined by the House itself
(D) Canada.- Section 33 of the British N.A. Act provides:

182
Barry v. U.S., (1929) 279 US 597 (616)
183
Loney, in re, (1980) 134 US 372.

84
 “If any question arises respecting the qualification of a Senator or vacancy in
the Senate the same shall be heard and determined by the Senate.”
Sec. 41 provides:

“Until the Parliament of Canada otherwise provides, all laws in force in the
several Provinces....relating to the following matters or any of them namely,-the
qualifications and disqualifications of persons to be elected or to sit or vote as
members of the House of Assembly or Legislative assembly in the several
Provinces.....the trial of controverted elections, and proceeding incident thereto, the
vacating of seats of members....shall respectively applies to elections of members to
serve in the House of the Commons for the same several Provinces.

Indian position

“Article 103 of Indian Constitution

(i) If any question arises as to whether a member of either House of Parliament

has become subject to any of the disqualifications mentioned in clause ( 1 ) of
Article 102, the question shall be referred for the decision of the President and
his decision shall be final.
(ii) Before giving any decision on any such question, the President shall obtain the
opinion of the Election Commission and shall act according to such opinion.”

Article 103: Decision of dispute as to disqualification of members

Contrary to the English practice, the decision of questions as to whether a duly

elected member has become disqualified, is left to the President who, however, is
required to act according to the opinion of the Election Commission. The President’s
decision is final and the courts shall have no jurisdiction to question the validity of the
Presidents’ decision, except on the ground that he has acted otherwise than according
to the opinion of the Election Commission, for ‘finality’ can attach only to intra vires
exercise of the power, when a power is limited by conditions. The word ‘Shall’ in Cl.
(2) of the Present Art. Also indicates that the President’s obligation to act according to

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the opinion of the Election Commission is absolute. It is also to be noted that there is
nothing in the present Article, corresponding to the provision it Article 74 (2), ante.

Cl. (1): Question as to disqualification

1. That a question for the application of the Claus are-

(i) That a question as to disqualification has arisen. The Clause however, does not
lay down where, by whom and in what manner the question should arise. 184 It
is not necessary that is should arise in the Legislature itself. It also does not
indicate the proper method for referring such question to President or
Governor as the case may be. But in deciding such question, the President or
the Governor neither consult his council of ministers nor decide the matter
himself. “He has to forward the question to the Election Commission for his
opinion and act according to the opinion received. Though the matter is
decided by the Election Commission, it is announced in the name of the
President or the Governor. The Election Commission holds and enquiry before
giving an opinion.185 The power conferred under this Article cannot be
regarded as a power of removal of a member of Parliament by the
President.186”
(ii) That question must be referred to the opinion of the President. It does not,
however, say that some other authority must receive the complaint, hold an
inquiry and then refer it to the decision of the President. If any such question
arises in any manner, it has tobe decided by the President alone and the courts
shall have no jurisdiction to determine it.187
(iii) Though the ultimate decision it that of the President, the Constitution has
practically left it to the Election Commissioner, to whom the complaint is
forwarded by the President, to try the complaint, arrive at its decision and then
pronounce it in the name of the President.188

184
Brindaban v. Election Commissioner, AIR 1965 SC 1892: (1965) 3 SCR 53.
185
See Ramakrishna Hegde v. State, AIR 1993 Kant 54.
186
Narsimha Rao v. State (CBI/SPE), AIR 1998 SC 2120
187
Brindaban v. Election Commissioner, AIR 1965 SC 1892: (1965) 3 SCR 53.
188
Ibid.

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 ‘Has become’. - Is has been held by the Supreme Court,189 that the words ‘has
become’ in Arts. 103 (1) and 192 (1) indicate that the scope of these Articles is
restricted to post election disqualifications, so that the question whether a member
was disqualified at the time of election cannot be referred to the President or the
Governor under either of these Articles. Such a question may be raised only in an
election petition, under Sec. 100(1) (a) of the Representation of the People Act, 1951,
as amended in 1956.

Cl. (2): Opinion of the Election Commission

1. When a question as to the disqualification of a member is referred to the

President, he is bound to obtain the opinion of the Election Commission on the
question, and is bound to give his decision in accordance with such opinion.190
The Government has no discretion in the matter.191
It was held that “on a conjoint reading of the two clauses of Art. 192, that
over a question of the type mentioned in the first clause is referred to the
Governor alone meaning thereby is raised before the Governor, and the
Governor alone must decide it, but this must be taken after obtaining the
opinion of the Election Commission and the decision which is made final is
that decision which the Governor nor has taken in accordance with the opinion
of the Election Commission. In effect and substance, the decision of the
Governor must depend on the opinion of the Election Commission and none
else, not even the Council of Ministers. Thus the opinion of the Election
Commission is decisive since the final order would be solely based on that
opinion.192 It was further held in that case that the Election Commission acts in
a quashi-judicial capacity while adjudicating the question as disqualification
and principle of natural justice have to be followed including the rule against
bias. In that case, it was contended that Chief Election Commissioner was
disqualified to participate in the decision because Subramaniam Swamy’s wife
was engaged as counsel in a case filed by Seshan. Supreme Court directed that

189
Election Commission of India v. Saka Venkata Rao, (1953) SCR 1144.
190
Election Commissione v. Ranga, AIR 1978 SC 1609
191
Ibrahim v. Election commission, AIR 1957 All 292.
192
See Election Commission of India v. Dr. Subramania Swamy, AIR 1996 SC 1810.

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 a decision be taken by the other two members of the Commission and in case
of differences of opinion; Chief Election Commission may decide the case on
the Principle of doctrine of necessity.
A peculiar question arose in K. Venketachalam v. A. Swamickon. 193 In that
case, a disqualified person got elected and no election petition was filed. Long
after the period of limitation to file an election petition, a writ petition under
Art. 226 to declare that the election of the successful candidate as void. It was
held that High Court could declare the election void as he had no basic
constitutional or statutory qualification to stand for election and directed that
the Government should recover the penalty under Art. 193 (Article 104). It
was observed that Art. 226 is couched in the widest possible terms and unless
there is a clear bar of jurisdiction of the High Court, its power under Art. 226
can be exercised when there is an act which is against any provision of law or
violating of constitutional Provision and when recourse cannot be had to the
provision of the Representation of the People Act for appropriate rating.
Judicial Review is maintainable against the decision of the President or
Governor if it is based on no evidence whatsoever regarding the alleged
disqualification or when the decision is perverse. 194
2. Under the Provisions of the Representation of the People Act, 1951, the
Election Commission has to make an inquiry into the facts causing the
disqualification alleged and, for that purpose, he may require the respondent to
furnish information on matters relevant to the inquiry.195

Before seeking for an action under Art.103 (2), there should be specific plea of
disqualification and unless it is alleged that the person complained of ha incurred any
one of the disqualification by or under law made by Parliament, no further action
would be contemplated under Art.103 (2).196

193
AIR 1999 SC 1723 : (1999) 4 SCC 526.
194
Kihota Holluhan v. Zochillhu, AIR 1993 SC 412: see also Haja Shariff K.S. v. His Excellency the
Governor of Tamil Nadu, AIR 1985 Mad 55.
195
Election Commission v. Ranga, AIR 1978 SC 1609: (1978) 4 SCC 181.
196
Madras Citizen Progressive Council v. President of India, AIR 1995 Mad 16.

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 Analogous provision. - The provisions of Art. 192 relating to the State
Legislatures are exactly similar.

While the decision of questions are relating to disqualifications of members of

Parliament is vested in the President, the decision of election disputes is to be made
by such authority as is prescribed by Parliament, under Art. 329 (b), post.

Art. 103 of the Constitution will be applicable only if the member incurs the
disqualification after he becomes the member of the Parliament and not if he was
disqualified after to be chosen as member of the Parliament or he was not qualified to
be chosen to fill a seat in the Parliament - “G.Y. Bhandare v. E.J.J. Sequeira”.197

When an elector submitted a petition to the President of India under Articles

84, 101-104 of the Constitution alleging that the returned candidate has become
subject to the disqualification mentioned in Article 102(1) and the President sought to
the opinion of the Election Commission under Art. 103(2), it was held that the
President acted both in the exercise of Constitutional authority and in the discharge of
his Constitutional Commission “Election Commission of India v. N.G. Ranga”.198

“A writ petition seeing direction to the President of India to forward the

representation of the petitioner, pertaining to disqualification of Dr. Manmohan
Singh, M.P. and to obtain opinion of the Election Commission as per Art. 103 was
held not maintainable, as, interalia, no specific plea of disqualification was made in
the petition against the said M.P” - “Madras Citizens Progressive Council v. President
of India”.199

Question of qualification or disqualification- Role of Courts

Role of courts is limited to questions of disqualification or disqualification of

candidates, and elected representatives as clearly laid down in the relevant statute.
Qualification or otherwise in the background of education qualification is not a field

197
AIR 1972 Goa 11.
198
(1978) 4 SCC 181.
199
AIR 1995 Mad. 16.

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where courts have any role to play -“Baljeet Singh v. Election Commission of
India”.200

Disqualification incurred by chairman of Interim Council of Jharkhan Area

Autonomous Council as a candidate for election to the Council of States, cannot be
held to be removed by Parliament (Prevention of Disqualification) Act, 1959 on the
ground the Chairman of Interim Council enjoyed status of Minister, as the Jharkhand
Area Autonomous Council Act nowhere provides that Chairman enjoys status of
Ministers - “Daya Nand Sahay v. Shibu Soren”.201

Office of Profit Legal Options

“To constitute an ‘office of profit’ under Article 102 (1) (a) of the Constitution,
there are three conditions are to be satisfied that :

(i) There should be an office to which an appointment is made,

(ii) It should be an office of profit,
(iii) The office should be one under the Govt.

However, the Parliament (Prevention of Disqualification) Act 1959 specifies

certain offices, which will not come within the purview of the disqualification, and
several offices have been added after the enactment of the law.”

Article 103 says "If any question arises as to whether a member of either house of
Parliament has become subject to any of the disqualifications mentioned in Article
102, the question shall be referred for the decision of the President and his decision
shall be final. Before giving any decision on any such question, the President shall
obtain the opinion of the Election Commission and shall act according to such
opinion."

200
AIR 2001 Delhi 1 (8).
201
AIR 2001 Pat. 79.

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 In the case of Jaya Bachchan, President A.P.J. Abdul Kalam acted on the advice
of the Commission to disqualify her as a member of the Rajya Sabha since she held
the post of chairperson of the Uttar Pradesh Film Development Council.

Shibu Soren case :

The Supreme Court in the Shibu Soren case has made it clear that even if the
holder of office does not draw salary, he or she will be deemed to hold an office of
profit if the office carries some remuneration or pecuniary benefits. Now about 40
Members of Parliament, including Congress president Sonia Gandhi (she has resigned
both as Member of Parliament as well as chairperson of the National Advisory
Council) are reported to attract such a disqualification since they are stated to hold an
`office of profit.'

The option before the government to get over this difficulty is to amend the
provisions of the PPD Act to bring in more offices under its ambit. Such an
amendment can be brought about either through an ordinance (since both the Houses
of Parliament have been adjourned sine die) or through a Bill once Parliament
resumes its sitting.

Former Attorney General Soli Sorabjee says as a result of the resignation of

Ms. Sonia Gandhi the proposed ordinance may not be promulgated.

If it were, it would be prima facie unconstitutional because there is no

compelling urgency. Besides there was no reason to adjourn Parliament sine die in the
midst of its legislative work unless it was for the collateral purpose of paving the way
for promulgating an ordinance in order to save some top members including Ms.
Gandhi from incurring disqualification.

The aforesaid action is also in breach of constitutional morality.

Former Election Commissioner G.V.G. Krishnamurthy says by resigning Ms.

Sonia Gandhi has become a role model and other MPs who attract such a
disqualification must follow suit to uphold democratic principles.

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 He says the PPD Act can be amended either through an ordinance or a Bill to
include more offices to the list specified in the Act but giving retrospective effect to
such an amendment would violate the basic structure of the Constitution and will
damage the democratic process and the rule of law.

Art. 104. “Penalty for sitting and voting before making oath or affirmation
under Article 99 or when not qualified or when disqualified

If a person sits or votes as a member of either House of Parliament before he

has complied with the requirements of Article 99, or when he knows that he is not
qualified or that he is disqualified for membership thereof, or that he is prohibited
from so doing by the provisions of any law made by Parliament, he shall be liable in
respect of each day on which he so sits or votes to a penalty of five hundred rupees to
be recovered as a debt due to the Union Powers, Privileges and Immunities of
Parliament and its Members”

Review

Analyzing the above facts and arguments, It seems like they revolves around
seeking an answer to the question of whether the issue of ‘office of profit’ is really
worth expending a substantial amount of literature on. The rather amusing panic
caused among the politicians regarding the scope of the amendment to the law is
indicative of how they seem to have forgotten that their foremost duty is to serve the
very people who have elected them to function as full time representatives. However,
paying heed to the matter at hand, the failure of Members of Parliament to regard and
duly follow the norms of membership to the Parliament got unwittingly exposed when
it came to the fore that the provisions of the Constitution have been continually
violated all these years, until only Jaya Bachchan, a well known personality, got
disqualified at the behest of the Congress. To elucidate the profit-making tactics of the
Members of Parliament further, the illustration of the MPLADS and cash-for-query
scam that are indicative of contemporary Indian politics revolving around power and
undue influence should suffice. The underlying purpose of this article is to prompt
one to ponder about the differences in the rights of the Parliament and the President to

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govern the rules of membership to the Parliament. The suggestion this article seeks to
give is that any provision in the Constitution of India will stand over and above any
other law, rule or Parliamentary legislation of our country. No member of the
Parliament can hold an office of profit, as is defined under Article 102(1)(a), the
violation of which will be a clear sign of disqualification from the Parliament. The
President has a superior discretion in terms of exempting the disqualification and the
Parliament does not hold the authority to reverse that decision through legislation.
Based on the aforementioned original law and the subsequent amendment, what the
chief concern should be is to exercise the disqualification of the MPs in a non-
discriminatory manner and award the same liabilities to every member who holds an
office of profit. Since the developments regarding this topic are fairly recent, it will be
interesting to note the different kinds of intricacies that shall arise in the newer cases
in due course of time. Eventually, a comparative study of numerous cases of
disqualification of MPs before and after the amendment will draw a detailed analysis
of the relationship between the Parliament and Constitution of India that is guiding
the current political system in our country.

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