Project

SCOPE OF

“OFFICE OF PROFIT”

Roll No. –38034

Semester – VIII

B.A.LL.B.(Hons.)

Faculty of Law, University of Allahabad

1
 ACKNOWLEDGMENT

Any attempt at any level cannot be satisfactorily completed without the support and guidance of

learned people. I would like to express my immense gratitude to Prof. Mr. B.P. Singh and Ms.

Rashmi Thakur for their constant support and motivation that has encouraged me to come up with

this project.

I am also thankful to all other members of the Faculty of Law, University of Allahabad, who have

rendered their whole hearted support at all times for the successful completion of this project.

I would also like to thank my friends and classmates, who gave me support while working on this

project, without help of whom I could never have been able to do it.

Last, but not least, I thank my parents for unconditional support and encouragement to pursue my

interests, especially my father who helped me at different level and guided me over different topics,

while working on the project.

TABLE OF CONTENTS

Topic Pg. No

Acknowledgement….............................................................................................................................2

Table of Contents…..........................................................................................................................3-4

List of Cases…...................................................................................................................................5-6

Chapter 1: Introduction.

1.1 Introductory..........................................................................................................................................7

1.2 Rationale behind the Concept...............................................................................................................7

1.3 Office of Profit and Constitution..........................................................................................................8

1.4 Research Methodology…...................................................................................................................9

1.5 Objective of the Project.......................................................................................................................9

1.6 Mode of Citation..................................................................................................................................9

1.7 Literature Survey…..............................................................................................................................9

1.8 Chapterization Planning........................................................................................................................9

1.9 Research Question.............................................................................................................................10

Chapter 2: Concept of Office of Profit

2.1 Introductory........................................................................................................................................11

2.2 Meaning of Office of Profit.................................................................................................................11

2.3 Essential Characteristics of Office of Profit........................................................................................12

2.4 Reasons for the Prohibition for Holding Office of Profit.....................................................................13

 Division of Power.
 Avoidance of Conflict of Interest

2.5 Powers of the President vis-a-vis the Election Commission.................................................................15

Chapter 3: Brief History of Concept of Office of Profit

3.1 Introductory........................................................................................................................................17
 3.2 Historical Development......................................................................................................................17

3.3 India and Office of Profit.....................................................................................................................18

Chapter 4: Criteria to Determine Disqualification

4.1 Introductory........................................................................................................................................20

4.2 Conditions for Disqualification.....................................................................................................20-29

 Office
 Profit
 Office under the Government
 Statutory Exceptions in India
 The Office must be actually held by the Person.

Chapter 5: Conclusion and Suggestions.................................................................................30-31

Bibliography.......................................................................................................................................32
 LIST OF CASES

1. Chand Chordia v. Thakur Narian Singh and Others, ELR Vol. VI at 397.

2. Abdul Shakur v. Rikhab Chand, AIR 1958 SC 52(55).

3. Hotilal v. Rajbahadur, AIR 1959 Raj 227

4. M.V. Rajasekharan v. Vatal Nagaraj, (2002) 2 SCC 704

5. Biharilal Dobray v. Roshan Lal Dobray, (1984) 1 SCC 551

6. Shibu Soren v. Dayanand Sahay, (2007) 1 SCC 425.

7. Ramappa v. Sangappa, AIR 1958 SC 937

8. Shrilekha Vidhyarthi v. State of U.P, AIR 1991 SC 537

9. Kanta Kathuria v. Manak Chand Surana, (1969)3 SCC 268

10. Great Western Railway Company v. Bater 8 tax Cases 231

11. McMillan v. Guest, (1942)1 All E.R. 606,H.L.

12. P. V. Nirasimha Rao v. State (CBI/SPE), JT 1988 (3) SC 537.

13. Bhagwati Prasad Dixit Ghorewala v. Rajeev Gandhi, AIR 1986 SC 1534

14. Mudhalkar G.E. Pakankar v. J.C. Rajani, (1977) 1 SCC 70.

15. Ravanna Subanna v. G. S. Kaggeerappa, AIR 1954 SC 653

16. Delane v. Hillcoat, (1829) 109 ER 115

17. Umrao Singh v. Darbara Singh, AIR 1969 SC 262

18. Jaya Bachchan v. Union of India, AIR 2006 SC 2119

19. Mualana Abdul Shakur v. Rikhab Chand, AIR 1958 SC 52

20. Guru Gobind Basu v. Sankari Prasad Ghosal, AIR 1964 SC 254.
21. Akula Ram Mahto v. Rajendra Mahto, (1999) 3 SCC 541

22. Pradyut Bordoloi v. Swapan Roy, (2001) 2 SCC 19.

23. Shivamurthy Swami v. Veerabhadrappa Veerappa, (1971)3 SCC 870.

24. Bhagwati v. Rajeev, AIR 1985 SC 1534.

25. Sitaram v. Rajilabai, AIR 1987 SC 1293.

26. Pashupati v. Nem, (1984) 2 SCC 404.

27. Union of India v. Sankalchand, AIR 1977 SC 2328.

28. Satrucharla Chandrasekhar Raju v.

Vyricherla Pradeep Kumar Dev, (1992) 4 SCC 404.

29. Mrs Sonia Gandhi’s Case, 2006.

 CHAPTER 1

INTRODUCTION

1.1 Introductory: Most parliaments of the world besides requiring certain general exceptions,

regard particular categories of persons as ineligible usually because the posts that they hold are

termed to be incompatible with the office of member. Down the ages certain qualifications and

disqualifications have become an inherent part of the law for selection of the members of the law

making body of any country. These conditions of eligibility usually reflect a legitimate concern of

the people to select suitable candidates democratically.

In democratic systems across the world, there are constitutional provisions and legislations, putting

a certain bar on elected representatives from holding „Offices of Profit‟. The inherent idea is to

ensure that personal and pecuniary interests will not come in the way of the objective and effective

discharge by the legislators of their onerous responsibilities. At the same time, it has to be born in

mind that in democratic polities, parliamentarians and legislators, besides their varied roles as

elected representatives, are also expected to aid and advice public institutions and trusts so as to

help these institutions function efficiently for the well fare and well being of the people and the

country at large. When they discharge such responsibilities, they are, in fact, aiding and assisting in

securing the larger public interests. It is against this backdrop that in all democratic systems, they

are provided with certain perks and perquisites for functional necessity to discharge such duties

efficaciously.

1.2 Rationale behind the Concept: The rationale behind the principle of „office of profit‟ is that

the holder of a public offices should not get influenced by any consideration whatsoever while

discharging his various responsibilities. An elected representative is the repository of the

confidence and trust of his constituents. That being so, it is imperative that they do not corrode

their varied roles. It is but natural, therefore, that members are expected to act according to the
 highest standard of probity, accountability, honesty and integrity in the exercise of their public

duties. The concept of office of profit has to be understood in this background.

1.3 Office of Profit and Constitution: In our country too, „Office of Profit‟ has been dealt with in

the Constitution and the law. Though the „Office of Profit‟ has been dealt with in the Constitution

and the Law. Though the „Office of Profit‟ has not been defined as such, legislation has exempted

several „Offices‟ from the ambit of „Office of Profit‟. Like every text has a context, every law

originates in historical setting, in repose to the demand of time. Law cannot be static; it has to be

dynamic, responding to the changing needs of time, without losing the spirit of the law. The

constitutional and legal provisions governing the „Office of Profit‟ in India have also to be seen in

this wider context.

Article 102 and 191 of the Constitution provide for the disqualification of a person for being chosen

and for being a member of the Legislature. However, these Articles empower the Parliament and

the State Legislature to declare by law that a particular office will not disqualify its holder. In

pursuance of Article 102, Parliament enacted the Parliament (prevention of Disqualification) Act,

1959. This Act declares that the offices listed in its various sections do not qualify their holders.

The basic problem that arises in the context of office of profit is that this term has not been defined

anywhere. In the absence of the clear definition, it becomes difficult to determine whether a

particular office is an office of profit or not. It is interesting to mention here that neither the

English law nor the Indian law has attempted to define it. A catena of case decided by the English

courts, the Indian courts and the Tribunals have analysed in clear terms the hitherto undefined term

„Office of Profit‟. As these cases arose under varied circumstances, each decision of the court and

tribunal laid emphasis on one or a set of factors. Thus no definition of the term is available, much

of the obscurity of the law on this subject has been removed through these decisions. In this project

researcher is trying to explore the scope of the law on the office of profit and explain it in more
 clear terms. By tracing the history and recent developments through plethora of decisions of the

Supreme Court regarding what constitutes the concept of Office of Profit.

1.4. Research Methodology: My main research methodology is analytical legal research, i.e. the
systematic exposition, analysis and critical evaluation of legal rules and their interrelationships. I
also use elements of comparative, institutional and reform-orientated research methodologies. To
achieve the aforementioned objective the scope of the researcher was confined only to the
secondary data collection obtained from books, articles and internet.

1.5. Objective of the Project: The objective of the Project is to analyze the scope of Office of
Profit under the Constitution of India. To provide a detailed look at decisions of the Supreme Court
regarding what determines an Office of Profit.

1.6 Mode of Citation: The researcher has followed a uniform mode of citation throughout this
project.

1.7 Literature Survey/Sources: The researcher has collected the primary data in the form of
information collected from different sources like Teachers, students studying Constitutional Law
etc. Secondary sources of data have also been consulted. Help has been taken from:

 Literature in the form of books and articles,

 Legal Provisions-their aim and objective as well as work,

 Decisions of the Supreme Court, High Courts and Tribunals, analysis, effect or result
of the Decisions

1.8 Chapterization Planning: The Study has been divided into various chapters:-

 Chapter 1 deals with Introduction wherein the researcher gives brief introduction to
the topic of office of profit.

 Chapter 2 deals with the Scope of Office of Profit under Indian Constitution.

 Chapter 3 deals with History of Concept of Office of Profit.

 Chapter 4 deals Criteria to Determine Disqualification of Persons holding Office of

Profit.
  Chapter 5 concludes the project by summarizing the project and also gives some
suggestions.

1.9 Research Questions: Researcher has formulated the following research questions to be looked
into and have tried to find answers for it:

1. What is Office of Profit? What is the Scope of Office of profit?

2. Explain by Giving the Brief History of Development of Concept of Office of Profit?

3. What is the Criteria for Determining the Disqualification of persons Holding Office of
Profit?
 CHAPTER 2

CONCEPT OF OFFICE OF PROFIT

2.1 Introductory: The Constitution of India adopted the concept of office of profit as a ground for

disqualification for being chosen and for being a member of the House. Article 102(1)(a) says that

a person who holds any office of profit under the Government of India or the Government of any

State shall be disqualified and he is not eligible to be chosen as a member of Parliament or to

continue as one unless such office has been declared by Parliament by law not to disqualify the

holder. Article 191(1)(a) contains an analogous provision in respect of State Legislatures. It is very

interesting to note that although the concept of office of profit is about five centuries old and a

huge body of case law has grown up on the subject, the term „office of profit‟ has nowhere been

defined in precise terms. Neither law makers nor the lexicographers have attempted to give a

comprehensive definition and the term office of profit acquire different shades of meaning

depending contexts and facts and circumstances of the cases. Perhaps the concept defies any

single, inclusive definition.

The purpose of these two Articles is to ensure that the Legislature does not contain persons who

have received benefits from the executive and who consequently being under the obligation might

be amenable to its influence1.

2.2 Meaning of office of profit: An „Office of Profit‟ is an office capable of or yielding pecuniary

gain2. The expression office of profit is only an office which yields income or profit. The term

office of profit has not been defined in the Constitution or the Representation of the Peoples Act,

1951 or Parliament (Prevention of Disqualification) Act, 1959. By virtue of the Act, holders of

certain offices are taken out of the purview of office of profit. This expression occurs in the

1
Satrucharla Chandrashekhar raju v. Vyricherla Pradeep Kumar Dev, (1992) 4 SCC 404, Pg. 419-420.
2
Preamble of Parliament (Prevention of Disqualification) Act, 10 of 1959 as amended by Act of 31 of 2006.
 following Articles 58(2)3, 59(2)4, 645, 66(4)6, 102(1)(a)7 and 191(1)(a)8. The words „under any

local or other authority‟ which occur at the end of Articles 58(2) 9 and 66(4)10 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 legislature.11 The courts, tribunals and other

authorities have laid down some broad criteria in this regard.

2.3 Essential Characteristics of Office of Profit: It has been held in Gulab Chand Chordia v.

Thakur Narian Singh and Others12, that office of profit is not a term of art and its meaning and

import are well understood. The essential characteristics of an office of profit are:

i. It involves an appointment by the state in one form or the other,

ii. It carries emoluments payable mostly periodically,

3
Art 58(2): Qualification for election as President- A person shall not be eligible for election as President if he holds
any office of profit under the Government of India or the Government of any State or under any local or other
authority subject to the control of any of the said Governments.
4
Art 59(2): Conditions of President’s office-The President shall not hold any other office of profit.
5
Article 64: The Vice-President to be ex officio Chairman of the Council of States-The Vice-President shall be ex
officio Chairman of the Council of States and shall not hold any other office of profit:
Provided that during any period when the Vice-President acts as President or discharges the functions of the President
under article 65, he shall not perform the duties of the office of Chairman of the Council of States and shall not be
entitled to any salary or allowance payable to the Chairman of the Council of States under article 97.
6
Article 66(4): Election of Vice-President- A person shall not be eligible for election as Vice-President if he holds any
office of profit under the Government of India or the Government of any State or under any local or other authority
subject to the control of any of the said Governments.
7
Article 102(1)(a): Disqualification for Membership- A person shall be disqualified for being chosen as, and for
being, a member of either House of Parliament- If he holds any office of profit under the Government of India or the
Government of any State, other than an office declared by Parliament by law not to disqualify its holder
8
Article 191(1)(a): Disqualification of Membership: A person shall be disqualified for being chosen as, and for being,
a member of the Legislative Assembly or Legislative Council of a State- If he holds any office of profit under the
Government of India or the Government of any State specified in the First Schedule, other than an office declared by
the Legislature of the State by law not to disqualify its holder
9
Article 58(2): Qualification for Election as President: A person shall not be eligible for election as President if he
holds any office of profit under the or the Government of any State or under any local or other authority subject to the
control of any of the said Governments.
10
Article 66(4): Election of Vice-President: A person shall not be eligible for election as Vice-President if he holds
any office of profit under the Government of India or the Government of any State or under any local or other
authority subject to the control of any of the said Governments.
11
Abdul Shakur v. Rikhab Chand, AIR 1958 SC 52(55).
12
ELR, Vol. VI at 397. See also Durga Das Basu, Commentary on the Constitution of India, 8 th Edition-2008, Vol. 4,
Lexis Nexis Butterworths Wadhwa Nagpur at pg 4999.
 iii. It is for limited period,

iv. It is terminable,

v. It is not assignable,

vi. It is not heritable,

vii. The holder of the office must be sui juris.

Infact, the Rajasthan High Court has held in Hotilal v. Rajbahadur13, that it is not necessary that

there must be a fixed pay attached to office; if the holder can charge any fee or remuneration for

exercising the functions of the office, he holds an office of profit.

Though the Parliament (Prevention of Disqualification) Act, 1959 lists the offices excluded from

the scanner of disqualification, it does not declare what offices shall invite disqualification, as

such. The Sardar Swaran Singh Committee, set up to suggest amendments to the Constitution, in

1976, recommended in its report that Articles 102(1)(a) and 191(1)(a) be amended so as to provide

that a person shall be disqualified for being chosen as, or for being the member of either House of

Parliament or either House of a State Legislature if he holds any office of profit under Government

declared by Parliament or by the State Legislature in respect of its members by law to disqualify its

holders for such membership14.

2.4 Reasons for the Prohibition for Holding Office of Profit are:

 Division of Powers: the underlining principle on which the office of profit clause is based is

the separation of powers between the executive and the legislature, which is important in a

democracy. Members of Parliament/State Legislature should not hold executive offices

because that will prejudice the impartial discharge of their essential function of keeping a

13
ELR Vol. XV at 55.
14
Swaran Singh Committee Report, (1979) 2 SCC. (Jour) at pg. 50-51.
 watchful eye on the executive, and holding it accountable to the public. This is an

unexceptionable principle15.

 Avoidance of Conflict of Interest: The old time disqualification, arising out of the

possibility of conflict of interests between one‟s own interests and that of public service, has

led to the insertion as a disqualification in the holding of any office of profit16.

In the case of M.V. Rajasekharan v. Vatal Nagaraj17, the Supreme Court laid down that the very

object of providing the disqualification under Article 191 of the Constitution was that the person

elected to the Legislative Assembly or the Legislative Council should be free to carry on his duty

fearlessly without being subjected to any kind of governmental pressure. The court therefore was

required to find out as to whether their existed any nexus between the duties discharged by the

candidate and the Government, and that a conflict was bound to arise between impartial discharge

of such duties in course of his employment with the duties which he was required to discharge as a

member of Legislature, on being elected.

In Biharilal Dobray v. Roshan Lal Dobray18, the Supreme Court had stated that if a person is

holding an office which brought him remuneration and the Government had a voice in his

continuance in that office, there was every likelihood of such person succumbing to the wishes of

Government. The respondent was employed as an assistant teacher in a Basic Primary school, run

and managed by Zila Parishad. By virtue of U.P Basic Education act 1972, he become employed

under the Board of Basic Education, set up under the Act. He filed his nomination for election to

15
Praful Bidwai, “ Only the First Step to Change”, Frontline, Vol. 23, Issue 7, April 8-21, 2006.
16
Prof. K.T. Shah, Member of Constituent Assembly, Constituent Assembly Debates; Official Report, Vol. VIII, Lok
Sabha Secreteriat, New Delhi(1999), pg. 569.
17
(2002)2 SCC 704. The question before the court was whether the Constitution of a One-man Commission- whose
Chairman-cum-only member of the Commission was accorded the status of Minister of cabinet rank by the
Government of Karnataka to study the problems of the Kannadigans in the border areas of south Indian states,
amounted to an office of profit, as per Article 191(1)(a).
18
(1984) 1 SCC 551.
 the State Legislative Assembly, during his tenure as the assistant teacher, which was rejected by

the returning officer for the reason that he was holding an office of profit under the State

Government. The Court held that the respondent was holding office of profit under the State

Government, at the time of nomination, and thus upheld the rejection of his nomination.

However in recent case of Shibu Soren v. Dayanand Sahay19, the Supreme Court cautioned that

the consequences of disqualifying a candidate, on the ground of him holding an office of profit at

the relevant time, have to be taken into account. That is, the right to contest an election is at stake,

and have to be a Member of the Legislature is indeed a very important right in a democracy. A ban

on the candidature must have a substantial and reasonable nexus with the object sought to be

achieved, namely elimination of or in any event reduction of possibility of misuse of the position

which the legislator concerned holds or had held at the relevant time. The question before the court

was whether the Chairmanship of the Interim Jharkhand Area Autonomous Council Act was an

office of profit under the State Government. There was no doubt that the post was “an office”

independent of its holder. On the question whether it reaped profit, it was held that it did, and

therefore invited disqualification under Article 102(1)(a). The grant of “honorarium” and other

perquisites was not in the nature of gratuitous payments, voluntary donation or compulsory

allowance. Thus, this was capable of “bringing about a conflict between duty and interest of the

appellant as the Member of Parliament”.

2.5 Powers of the President vis-a-vis the Election Commission: Article 103(1) of the

Constitution provides that „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(1), the

question shall be referred for the decision to the president of India and his decisions shall be final‟.

Article 103(2) further lays down that „before giving any decision on any such question, the

President shall obtain the opinion of the Election Commission and shall act according to such
19
(2007) 1 SCC 425.
 opinion‟. Since the constitution does not provide for definite criteria to determine the office of

profit, the National Commission to Review the Working of the Constitution recommended that a

suitable constitutional amendment be made to empower the Election Commission to identify and

declare the various offices of profit under the Central and State Government to be offices of Profit

for the purposes of being chosen and for being, a member of the appropriate Legislature20.

20
Report of the National Commission to Review the Working of the Constitution, Volume-I, Chapter 4, “Electoral
Processes and Political Parties”, Para 4.23.3.
 CHAPTER 3

BRIEF HISTORY OF CONCEPT OF OFFICE OF PROFIT

3.1 Introductory: The origin of the law regarding the disqualification of a holder of an office of

profit, relates back to English Act of Settlement of 1700. The Act was subsequently re-enacted as

the Succession to the Crown Act, 1707. The was done obviously to prevent the Government of the

day from exercising influence over Members of Parliament by appointing them to sinecure posts

created for the purpose. A select committee of the House of Commons was setup to look into the

matter since various difficulties has arisen on the question of office of profit. It made certain

recommendations in 194121 and summarised the gradual development of law.

3.2 Historical Development: There can be traced the genesis and gradual development of the three

chief principles which by the beginning of the eighteenth century had become, and have since been,

and should still be the main considerations affecting the law on this subject. These in order of

historical sequences are:

i. Incompatibility of certain non-ministerial offices with membership of the House of

Commons. Which must be taken to cover questions of member‟s relation with, and duties

to, his constituents.

ii. The need to limit the control or influence of the executive Government over the House by

means of an undue proportion of office holders being members of the House, and

iii. The essential condition of certain number of ministers being member of the house for the

purpose of ensuring control of the executive by Parliament.

It is these three principles which form the basis of Indian law on office of profit. The Act of 1707

was the first attempt to establish these principles in an Act of Parliament in England. Taking into
21
H. C. Paper 120 of 1941. Quoted in A. R. Mukherjee, Parliamentary Procedure in India 17(1983).
 account the recommendation of the committee, the House of Commons Disqualification Act, 1957

was enacted. Before the passing on this, the law on disqualification on membership of the House of

Commons through holding certain offices was exceedingly complicated. Now the position id

greatly simplified. Section 1(4) of House of Commons amended Act of 1975 reads, “except as

provided by this Act, a person shall not be disqualified for membership of the House of Commons

by reason of his holding an office or place of profit under the Crown or any other office or place.”

The provision of the Act for disqualification of the holders of certain offices, which involved

disqualification under the former statutory provisions before 1957, although certain anomalies

have been removed, and the former provisions disqualifying pension holders and government

contractor are abolished. The main effect of the Act has been to replace the large number of

statutory and common law provisions on disqualification by a single simple code22.

3.3 India and Office of Profit: India itself has the long history on office of profit. The Committee

on Office of Profit, 1955 has described this history23. This committee after examining the issues

relating to the office of profit submitted its report in 1955. It recommended firstly that a new bill

should be passed incorporating their suggestions and secondly that frequent scrutiny should be

made by Standing Parliamentary Committee in respect of those offices of profit which had eluded

their attention or which would come into existence in future.

As a result the Parliament(Prevention of Disqualification) Act, 1959 was passéd which superseded

all the previous enactments. Also a Joint Committee on office of profit was constituted by

Parliament to scrutinize the list of offices of profit from time to time. The function of this

committee is to undertake a continuous scrutiny of composition and character of various

government appointed bodies and report to both Houses as to the membership of which of these

22
Eriskine May, The Law, Privilages, Proceedings and Usage of Parliament, pg. 45(1976).
23
Committee on Office of Profit(Bhargava Committee), 1955
 bodies ought or ought not to disqualify a person from membership of parliament. This committee

in its discussion on office of profit came to the following conclusion24:

Broadly speaking there are five categories of offices from the point of view of emoluments,

which may be deemed to be office of profit, namely-

i. Where a person is appointed to an office of profit and takes remuneration, which may,

when set against expenses of loss incurred by not being able to follow his ordinary

avocation, be less.

ii. Where a person is appointed to an office of profit even though he does not take

remuneration.

iii. Where a person is appointed to an office of profit although the payment of

remuneration may have fallen into disuse.

iv. Where a person is appointed to an office of profit, which is not financed by

Government funds.

v. Where a person is appointed to an office which may not give any advantage by way of

monetary gain but is an office which carries with it honour, influence or patronage.

24
Id Para. 36.
 CHAPTER 4

CRITERIA TO DETERMINE DISQUALIFICATION

4.1 Introductory: For the purpose of deciding the question of disqualifications, so long as any profit

was attached to any office, it did not matter whether the profit has infact been appropriated or not

and, therefore, there was no distinction for the purpose between members who drew the

allowances 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 disuse25. In Shibu Soren’s case the

Supreme Court, after a detailed perusal of all the precedents, summarised that, in order to attract

disqualification, “a person must not only be holding an office but that office must be an office of

profit and should be under the Government and should be an office other than an office declared by

the competent legislature by law, not to disqualify its holder”.

4.2 Conditions for Disqualification: The following conditions must be satisfied in order to

disqualify a person under Article 102(1)(a):

i. There must be an office.

ii. Such office must be an Office of „profit‟.

iii. It must be under the Government of India or the Government of a State.

iv. Such office must not be excluded from the operation of this sub-clause by a law made by

Parliament.

v. Such office must actually be „held‟ by that person.

We may discuss each of the above ingredients separately:

i. Office: Office means a position or place to which certain duties are attached, which, in the present

context, means duties of public character26. By office is meant the right and duty to exercise an

25
In the matter of Vindhaya Pradesh Legislature Assambly Members, S.K. Sen, ELR Vol. IV, Pg. 34.
26
Ramappa v. Sangappa, AIR 1958 SC 937
 employment or a position of authority and trust to which certain duties are attached 27. Membership

of Parliament is an office in 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 office28, but it is not an office under the Government29.

In the landmark case of Kanta Kathuria v. Manak Chand Surana30, the Supreme Court was

called upon to decide whether the High Court decision disqualifying Mrs. Kanta Kathuria, as a

Member of Rajasthan Legislative Assembly, on the alleged ground that she was holding the office

of profit, namely that of a Special Government Pleader, before during and after elections, was

correct or not. Mrs Kathuria had received travel allowances and incidental charges, besides

remuneration for each date of hearing. The High Court held that the post was an office of profit.

During pendency of appeal to the Supreme Court the Rajasthan Legislative Assembly Members

(Prevention of Disqualification) Act 1969, was enacted to exempt the office of Special

Government Pleader as one of profit. On appeal, the Supreme Court, by 3:2 majority held that Mrs

Kathuria was not holding an office of profit. The court, in coming to this decision, relied on the

observations of Justice Rowlatt in the English case of Great Western Railway Company v.

Bater31, which was approved by the House of Lords in McMillan v. Guest32. Justice Rowlatt laid

down the following tests. The office should be:

 A subsisting, substantive, permanent position.

 In existence independent from the person who filled it.

 Filled in succession by successive holders.

27
Shrilekha Vidhyarthi v. State of U.P, AIR 1991 SC 537.
28
P. V. Nirasimha Rao v. State (CBI/SPE), JT 1988 (3) SC 537.
29
Bhagwati Prasad Dixit Ghorewala v. Rajeev Gandhi, AIR 1986 SC 1534.
30
(1969) 3 SCC 268.
31
8 Tax Cases 231.
32
(1942) 1 All E. R. 606, H.L.
 If the appointee undertakes an aggregate of activities to be done, without the creation of a post,

then the question of an office would not arise. The Court opined that Mrs Kathuria‟s engagement

as Special Government Pleader did not amount to an appointment of office, emphasising that the

word office in Article 191(1)(a) denotes an office which exists independently of the holder. Also,

since the State Legislature may declare an office of profit not to disqualify its holder is proved. The

Court also held that the Rajasthan Legislative Assembly Members (prevention of Disqualification)

Act had retrospective operation.

In Mudhalkar G.E. Pakankar v. J.C. Rajani33, the Supreme Court held that for holding an office

of profit under the Government, one need not be 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 form.

Thirdly all the several factors determinative of holding an office under Government need not be

conjointly present. The critical circumstances, not the total factors, prove decisive. A practical

view, not a pedantic basket of tests, should guide in arriving at sensible conclusions.

ii. Profit: 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 34. 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.

Section 2(a) of the Parliament (Prevention of Disqualification) Act, 1959 defines compensatory

allowances to mean any sum of money payable to the holder of an office by way of daily

allowances(such allowances not exceeding the amount of daily allowances to which a member of

Parliament is entitled under the Salaries and Allowances and Pension of Members of Parliament

33
(1977) 1 SCC 70.
34
Delane v. Hillcoat, (1829) 109 ER 115.
 Act, 1954), any conveyance allowance, house rent allowance or travelling allowance for the

purpose of enabling him to recoup any expenditure incurred by him in performing the functions of

that office. Compensatory allowances may also, for instance, include the personal expenditure

incurred by the holders to attend meetings of the committee.

Ravanna Subanna v. G. S. Kaggeerappa35, was the first decision of the Supreme Court, which

explained what makes an office one of profit. In deciding whether the office of the Chairmanship

of Taluk Development Committee was one of profit or not, the court held that the plain meaning of

the expression seems to be that of 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 money

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 that the chairman was entitled to held not to be

remuneration or profit, but out-of-pocket expenses incurred for attending the meetings of the

committee.

In Umrao Singh v. Darbara Singh36, the Supreme Court held that the payment of a monthly

consolidated allowance instead of all other allowances to carry out official activities and journeys

concerning the Panchayat Samiti whose Chairman the respondent was, including attending of

meetings, supervision of plans, projects, schemes and other works and also for the discharge of all

lawful obligations and Government directives, did not make the office one of profit. The Court

categorically stated that the allowances paid were not salary, remuneration or honorarium. It was

clearly an allowance paid for the purpose of ensuring that the chairman of a Panchayat Samiti did

not have to spend money out of his pocket for the discharge of his duties.

35
AIR 1954 SC 653.
36
AIR 1969 SC 262.
 In the case of Jaya Bachchan v. Union of India37, a petition was filed by Mrs. Jaya Bachchan in

the Supreme Court challenging her disqualification, following a complaint preferred by a Congress

party activist to the President of India, alleging that Mrs Bachchan, by virtue of her post as the

chairperson of the Uttar Pradesh film Development Council, was holding an office of profit under

the State Government, which members of Parliament are prohibited from holding, under the

Constitution of India. The President first obtained the opinion of the Election Commission of India,

as per Article 103(2) of the Constitution, and then gave his decision disqualifying actress-turned

Member of Parliament from the Rajya Sabha for holding an office of profit under State

Government. The Supreme Court observed that as member of the U.P Film Development Council,

she was entitled to monthly honorarium, entertainment expenditure, staff car with driver, telephone

facility, free accommodation, medical treatment and other allowances which are pecuniary gains

and thus her disqualification is proper. The court also observed that nomenclature was not

important. In fact, mere use of the word honorarium could not take the payment out of the purview

of the profit. For deciding the question as to whether one is holding an 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 the monetary gain.

It may be summarised that office of profit denotes an office that yields a profit or from which a

man is reasonably expected to make profit. It is not necessary that profit should be actually made 38.

Profit does not mean any remuneration in cash, but it definitely denotes some kind of gain, benefit

or advantage that is perceivable. If consideration is paid in the form of remuneration i.e.,

attendance fee or suiting fee, it is deemed to be profit in as much as it does not cover any actual

expenses39.

37
AIR 2006 SC 2119.
38
V. N Shukla, Constitution of India, 10th Edition-2004, Eastern Book Company, Lucknow at pg 376.
39
Subhash C. Kashyap, Parliamentary Procedure, Vol. 2, Edition-2000 University Law Publishing Co. Pvt. Ltd., New
Delhi at pg. 2133.
iii. Office under the Government: The next criteria which need consideration is as to what

constitutes an office under the Government. An office is held under an authority if the latter has the

power to appoint and remove the holder of the office. It is, accordingly the power of appointment

which determines whether any office is held under the „Government of India‟ or of State as the

case may be. Employees of Statutory body corporate cannot be said to be holding their office under

the Government where they are neither appointed nor removable by the Government nor are they

paid out of the revenues of the Government even though the corporation itself may be under the

control of Government40. Government in this context includes all the three branches of

Government-legislative, executive and judiciary41.

Mualana Abdul Shakur v. Rikhab Chand42, was one of the earliest decisions of the Supreme

Court which delved into the test of appointing authority. In that case, the appellant was appointed

the manager of a school run by a Durgah Committee that was constituted under the Durgah

Khwaja Saheb Act 1955. The administrator of the Durgah made the appointment. The appellant

was paid a monthly salary of Rs 100. The question arose as to whether this appointment could

disqualify the appellant to be a Member of Parliament, in light of Article 102(1)(a). The respondent

contended the appellants disqualification because as per the 1955 Act, members of the Durgah

Committee, and the Administrator was appointed by the Central Government, which could also fix

the Administrator‟s salary. However, the court held that the appellant is neither appointed by the

Government of India nor is removable by the Government of India nor is he paid out of the

revenues of India. The power of the Government to appoint a person to an office of profit or to

continue him in that office or revoke his appointment at their discretion and payment from out of

Government revenues are important factors in determining whether that person is holding an office

of profit under the Government though payment from a source other than Government revenue is

not always a decisive factor. But the appointment of the appellant does not come within this test.
40
Abdul Shakur v. Rikhab Chand, AIR 1958 SC 52(55).
41
Hotilal v. Rajbahadur, AIR 1959 Raj 227.
42
AIR 1958 SC 52.
 The court went on to add that the appellant was the servant of a statutory body, which acts within

the powered conferred by the Statute.

In Guru Gobind Basu v. Sankari Prasad Ghosal43, the Supreme Court held that the position of

the appellant as the auditor of Government companies, namely, Hindustan Steel Ltd., and

Durgapur Projects Ltd., was an office of profit within the meaning of Article 102(1)(a). The

appellant was appointed as the auditor of the Central Government, in consultation with the

Comptroller and Auditor General of India. As per the Indian Companies Act, 1956, he was also

removable by the Central Government and the Comptroller and Auditor General of India could

exercise full control over him. The court said that the power to appoint, dismiss and give directions

as to the manner in which the duties of the office are to be performed, and the power to determine

the question of remuneration need not co-exist in a given case. Nevertheless, it held, in the instant

case, all these factors were present. The court also drew a distinction between Maulana Abdul

Shakur’s case, though it relied on the tests laid down in that decision. In the instant case, the

appointment of the appellant, his continuance in the office, his remuneration etc was decided by

the Central Government, with regard to the two companies, whose 100% of shares were held by

the Government.

To determine whether the person holds an office under the Government, there are several tests,

which are ordinary applied44. These are:

 Whether the Government makes the appointment;

 Whether the Government has the right to remove or dismiss the holder of the office;

 Whether the Government pays the remuneration;

 Whether the functions performed by the holder are carried on by him for the Government

and

43
AIR 1964 SC 254.
44
Shivamurthy Swami v. Veerabhadrappa Veerappa, (1971)3 SCC 870.
  Whether the Government has control over the duties and functions of the holder.

In Akula Ram Mahto v. Rajendra Mahto45, the question before the Court was whether the posts

of Khalahi and a Meter reader in the Bokaro Steel plant belonging to the Steel Authority of India

Ltd (SAIL) could invite disqualification under Article 191(1)(a) read with Section 10 of the

Representation of People act 195146. The court held that it could not do so. The Shares of SAIL are

owned by the Central Government. However the Chairman and the Board of Directors were

appointed by the President of India, and also the removal, appointment and remuneration of

workers was determined by SAIL, and the functions of Bokaro Steel Plant or SAIL cannot be the

function of Government. Therefore, the non-executive posts of a Kalashi and Meter Reader did not

fall under the control of the Central Government, and the power of appointment and removal was

not exercised by the Central Government. Hence, those non-executive posts were held not to be

offices of profit.

Pradyut Bordoloi v. Swapan Roy47, the respondent was the employee of the Tirap Colliery,

North Eastern Coal fields under Coal India Ltd., in the post of Grade I Clerk. 100% share capital of

Coal India Ltd., was owned by the Central Government, and the company was within the meaning

of Section 617 of the Companies act, 1956. On the question whether this could invite

disqualification, it was not to disqualify the holder under Article 191(1)(a). The Government of

India exercised no control on the appointment, removal, service conditions and functioning of the

respondent. While the court concluded that the office was one of profit, it was not under the

Government of India, and the position of clerkship cannot bring any influence or pressure on him

in his independent functioning as a Member of Legislative Assembly. The respondent was also not

a managing agent or a manager or a secretary under the Government, and hence the

disqualification under Section 10 of the Representation of People Act was also not attracted.

45
(1999) 3 SCC 541.
46
Section 10 of the Representation of People Act, 1951: Disqualifies the Managing Agent, Secretary or Manager of any
company, in the capital of which the appropriate Government has not less than 25% shareholding.
47
(2001) 2 SCC 19.
iv. Statutory Exceptions in India: ‘other than an office declared..........’ Even though an office is

an office of profit according to the foregoing tests, the holder of such office will not be disqualified

if parliament so declares. Under this clause, Parliament enacted the Parliament (Prevention of

Disqualification) Acts 1950, 1951 and 1953. All these Acts have now been replaced by the

Parliament Prevention of Disqualification) Act, 1959. The Act of 1959 exempts following offices

from any disqualification from being chosen as for being a Member of Parliament:

 Any office held by Minister, Minister of State or deputy Minister for the Union or for any

State, whether ex-officio or by name;

 Offices of whips in Parliament and of Parliamentary Secretaries;

 Offices of Members of Forces in the National Cadet Corps;

 Territorial Army, Reserve or Auxiliary Air Forces;

 Offices of Members of the Home Guards formed in the States;

 Offices in Sheriffs of Bombay, Calcutta and Madras;

 Offices of Chairman or Members of the Universities or Bodies connected therewith;

 Offices of Members of Delegations or Missions sent abroad;

 Offices of Chairman or Members of Committees set up for advising the Government or for

any enquiry, etc., if no remuneration other than compensatory allowances is paid;

 Offices of chairman, Directors and Members of Statutory or Non-Statutory bodies other than

those included in the schedule, when no remuneration other than compensatory allowance is

payable; and

 Offices of Village Revenue Officers not discharging any police functions and paid by a share

of their collections.

A Member of Parliament does not hold office under the Government 48. A Government servant

where resignation is effective before scrutiny of nomination is no longer an officer49. However, on

48
Bhagwati v. Rajeev, AIR 1985 SC 1534.
 the other hand, the Comptroller and Auditor General though he is assigned an independent status

by the Constitution, is an office of the Union Government 50. The Judges of the Supreme Court and

High Courts are not Government Servants in so far as they hold a Constitutional office51.

Nevertheless, they hold their office „in connection with the affairs of the Union‟ under Article

360(4)(b) and are therefore holding office under the Union Government, even though not under the

control of that Government52. Therefore, if one looks at the list of offices exempted, it seems

sufficient. It covers those offices that need exemption because of the nature of their job.

v. The Office must be Actually held by the Person: The verb „holds‟ in Sub-clause (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 scrutiny of the nomination paper.

49
Sitaram v. Rajilabai, AIR 1987 SC 1293.
50
Pashupati v. Nem, (1984) 2 SCC 404.
51
Union of India v. Sankalchand, AIR 1977 SC 2328.
52
Durga Das Basu, Shorter Constitution of India, 1988 at pg. 316.
 CHAPTER 5

CONCLUSION AND SUGGESTIONS

The object of the rules governing the disqualification is to secure the independence of Members of

Parliament from private interests. In practise, this concern raises the difficult problem of how to

judge whether a given influence upon a given individual is too great. There is also the risk that

particularly well-qualified people who would be useful to the country may be prevented from

standing for election.

The true test for determining whether a person holds an office of profit depends upon the degree of

control the government has over it, the extent of control exercised by various other bodies or

committees, its composition, the degree of its dependence on the government for its financial needs

and the functional aspect namely whether the body is discharging any important governmental

function or just some function which is merely optional from the point of view of government53.

D.D. Basu opines that the real test is whether there is any possibility of conflict between duty and

personal interest and not whether the function of the office is big or small54.

Unfortunately, in the recent controversy, the issue never reached the Supreme Court where the status

of various posts such as Chairpersonship 55 of the National Advisory Council could have been

judicially tested. In other cases, law was quickly amended so as to get around the problem.

Furthermore, there was no debate on the crux of the issue which was to protect the independence

and impartiality of the legislature.

53
Satrucharla Chandrasekhar Raju v. Vyricherla Pradeep Kumar Dev, (1992) 4 SCC 404.
54
D.D. Basu, Constitutional Law of India, (2003) p. 743
55
Mrs. Sonia Gandhi’s Case: A Petition was filed by the Telugu Desam Party against President of the Congress Party,
Mrs. Sonia Gandhi on the ground that the Chairperson ship of the National Advisory Council of the Congress was an
office of profit. This led to her voluntary resignation as a Member of the Lok Sabha. The Election Commission, by
May 8, 2006, received more than thirty petitions referred by the President, seeking the disqualification of nearly forty
odd Members of the Parliament.
While the entire controversy surrounding the amendment to the Parliament (Prevention of

Disqualification) Act may be largely political, it cannot be denied that by including more

Government offices under the scanner of exemption from disqualification, the constitutional

mandate of healthy Parliament/State Legislature does not augur well for a democratic setup such as

ours and directly hits at the very root of the concept of division of powers.

However it would be improper to disregard the observations of Justice V.R. Krishna Iyer in

Madhulkar’s case56, when he said that keeping in mind the multifarious dimensions of the State‟s

function, it may not be entirely feasible to keep out of elective posts doctors, lawyers, non-officials,

scientists etc.

The amendment passed by the Government has diluted the spirit of the Indian Constitution. It has

struck at the very root of parliamentary system of governance. It is violative of the basic structure.

The rule relating to holding of double positions has been eliminated, which in turn leads to

concentration of power in few hands. De Lome57 once said, “It is the fundamental principle with

English lawyers that parliament can do everything but make a woman a man and a man a woman.”

If this were to be true of India, our Constitution would lose its meaning. It would be very sad day in

the history of this country because we all know that absolute power corrupts absolutely.

56
Madhulkar G.E. Pakankar v. J.C. Rajani, (1977) 1 SCC 70.
57
De Lome, as quoted by A. V. Dicey, An Introduction to the Study of the Law of the Constitution, Edition-1973 at
pg. 43.
 BIBLIOGRAPHY

Books Referred:

1. Achary, P. D. T, Law and Practice Relating to Office of Profit, 1st Edition-2006,

Bharat Law House, Delhi.

2. Basu Durga Das, Commentary on the Constitution of India, Vol. 4, 8th Edition-2008,

LexisNexis Butterworths Wadhwa Nagpur.

3. Jain M.P, Indian Constitutional Law, 5th Edition-2009, Lexis Nexis Butterworths Wadhwa

Nagpur,

4. Kumar Narendra, Constitutional Law of India, 1st Edition-1998, Pioneer Publications,

5. Pandey J.N, Constitutional Law of India, 43rd Edition-2006, Central Law Agency.

6. Shukla, V. N., Constitution of India, 10th Edition-2001, Eastern Book Company, Lucknow.

7. Subhash C. Kashyap, Parliamentary Procedure, Vol. 2, Edition-2000, University Law

Publishing Co. Pvt. Ltd., New Delhi.

8. Constituent Assembly Debates; Official Report, Vol. VIII, Lok Sabha Secreteriat,

New Delhi(1999).

9. Report of the National Commission to Review the Working of the Constitution, Volume- I,

Chapter 4, “Electoral Processes and Political Parties”.

Articles Referred:

1. Bedi, Shruti, Amendment in Office of Profit: A Dilution of the Spirit of Constitution,

Journal of ILI, (2006)48, July-Sept at Pg. 409-424.

2. Kumar, Sairam Sanath, Office of profit: An Analysis in the Light of the Supreme

Court Decisions, Cochin University Law Review, (2006)30, Dec. at Pg. 399-416.

3. Bidwai, “ Only the First Step to Change”, Frontline, Vol. 23, Issue 7, April 8-21, 2006.
Statutes Referred:

1. The Constitution of India.

2. Parliament (Prevention of Disqualification) Act, 1959.