School of Law, KIIT University

Bhubaneswar-751024

Subject: Election Laws (LW 5019)

-CASE ANALYSIS ON -

Jaya Bachchan v. Union of India & Ors.

AIR 2006 SC 2119: (2006) 5 SCC 266

-Submitted to-
Mr. Prateek Mishra
Faculty- Election Laws, KIIT School of Law

-Submitted By-
Name: Shristi Das
Roll no: 1683085
BA-LLB, Section B
9th Semester, 5th year
Batch: 2016-21

Page | 1
 1. INTRODUCTION

The Constitution of India, apart from enlisting certain qualifications for Members of Parliament and
State Legislative Assemblies, also enumerates certain disqualifications. One of these disqualifications is
holding an ‘office of profit’.

This concept has evolved from the British Parliamentary model. One of the earliest laws on this issue
was the English Act of Settlement enacted in 1700. By the beginning of the eighteenth century, three
broad principles were developed affecting the law on this subject, which have also been implicitly
incorporated in the Indian laws:
1. Certain non-ministerial offices are incompatible with membership of the Parliament.
2. The influence of the Executive over the House of Commons, through the undue proportion of office-
holders who are members of the House, should be limited.
3. Certain number of ministers should be members of the House for the purpose of ensuring control of
the Executive by the Parliament.1

Articles 102(1)(a) and 191(1)(a) of the Constitution of India, provide for the disqualification on grounds
of holding any office of profit of the Members of Parliament and State Legislative Assemblies
respectively. There a few legislations for the same purpose but these were not considered enough.
Therefore, to address the lack of a single, comprehensive law, the Bhargava Committee on Offices of
Profit was constituted under the Chairmanship of Pt. Thakur Das Bhargava in 1954. The Committee
recommended enactment of the Parliament (Prevention of Disqualification) Act. This Act was passed in
1959 and presently governs the law on offices of profit in India. This legislation specifies which offices
would not disqualify their holders. However, as neither the Constitution nor any other piece of
legislation have defined the term ‘office of profit’, leaving it open for wide interpretations, poses as an
obstacle to the appropriate application of the written laws. The main source for understanding what
constitutes an office of profit is judicial rulings. Apart from the Judiciary, Joint Committee on Offices
Profit has also contributed in defining the term. Article 102 of the Constitution provides as follows:
‘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;]’

1
Ananya Jha, ‘Office of Profit – Definition under the Indian Constitution’ IPleaders (2018) available at:
https://blog.ipleaders.in/office-of-profit/#_ftn2 accessed on 30 September, 2020.
 2. BACKGROUND OF THE CASE
Facts: The Government of Uttar Pradesh, by an Official Memorandum had appointed Jaya Bachchan
(Petitioner) as the Chairperson of the Uttar Pradesh Film Development Council and sanctioned to her the
rank of a Cabinet Minister. As a consequence, she became entitled to the following benefits:
(i) Honorarium of Rs. 5,000 per month;
(ii) Daily allowance of Rs. 600 per day within the State and Rs. 750 outside the State, as well as
Rs.10,000 per month towards entertainment expenditure;
(iii) Staff car with driver, telephones at office and residence, one P.S., one P.A. and two class IV
employees;
(iv) Body Guard and night escort;
(v) Free accommodation and medical treatment facilities to her and family members;
(vi) Free accommodation in Government circuit houses/guest houses and hospitality while on tour.

The Election Commission of India (ECI), after referring to the facts and the law enunciated by the
Supreme Court in several decisions, has expressed the opinion that the office of the Chairperson of the
Council to which the petitioner was appointed by the State Government, is an ‘office of profit’ under the
Government of Uttar Pradesh for purposes of Article 102(1)(a) of the Constitution. The Commission
also found that section 3 of the Parliament (Prevention of Disqualification) Act, 1959 did not exempt the
said office of profit from disqualification under Article 102(1)(a) of the Constitution.

The President of India, by an order dated 16th March, 2006, in exercise of the powers conferred under
Article 103(1) of the Constitution of India, after obtaining the opinion of the ECI as required by Article
103(2), decided that the Petitioner stands disqualified for being a Member of the Rajya Sabha on and
from 14th day of July, 2004.

The Petitioner filed a writ petition in the Supreme Court challenging the above-mentioned order of the
President and the opinion rendered by the ECI to the President. The Petitioner contended that:
(i) the post of Chairperson of the Council and the conferment of the rank of Cabinet Minister, were
only ‘decorative’;
(ii) she had not received any remuneration or monetary benefit from the State Government;
(iii) she had not sought any residential accommodation, nor used telephone or medical facilities;
(iv) although she had travelled several times in connection with her work as the Chairperson, she had
never claimed any reimbursement; and
(v) that she had accepted the Chairpersonship of the Council honorarily, and did not use any of the
facilities.
The Petitioner contended that in the absence of any finding by the ECI that she had received any
payment or monetary consideration from the State Government, she could not be said to hold any ‘office
of profit’ under the State Government and, therefore, her disqualification ought to be declared invalid.

Issue: Whether Jaya Bachchan, an M.P. and the Petitioner in the present case stands disqualified from
being a Member of the Rajya Sabha on being appointed as Chairperson of the Uttar Pradesh Film
Development Council?

Ratio Decidendi: Article 102(1)(a) 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, other than an office declared by Parliament by law not to
disqualify its holder. The term ‘holds an office of profit’ though not defined, has been the subject matter
of interpretation, in several decisions of the 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 allowance is attached, is
‘holding an office of profit’.
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 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. If the office carries with it, or entitles the holder to, any pecuniary gain other
than reimbursement of out of pocket/ actual expenses, then the office will be an office of profit for the
purpose of Article 102(1)(a). This position of law has been held to have stood for over half a century
commencing from the decisions of Rayanna Subanna v. G.S. Kaggeerappa.2

Held: The post held by the Petitioner was held to be covered within the meaning of ‘office of profit’ and
accordingly, the Petitioner was disqualified from being a member of the Rajya Sabha. The fact that the
Petitioner is affluent or was not interested in the benefits or facilities given by the State Government
were held to be not relevant to the issue. In this view, the question whether the Petitioner actually
received any pecuniary gain or not was of no consequence. Thus, it was held that there was no merit in
the writ petition and thereby, it was dismissed.

2
AIR 1954 SC 653Also Shivamurthy Swami lnamdar v. Agadi Sanganna Andanappa (1971) 3 SCC 870; Satrucharla
Chandrasekhar Raju v. Vyricherla Pradeep Kumar Dev AIR 1992 SC 1959; Shibu Soren v. Dayanand Sahay, AIR 2001 SC
2583.
 3. CASE ANALYSIS
For deciding the question as to whether one is holding an office of profit or not, the following factors are
to be considered:
(i) the form of payment is not relevant as monetary gain may be merely disguised as an honorarium;
(ii) whether the office is capable of yielding a profit or pecuniary gain and not whether the person
actually obtained a monetary gain.
(iii) it is not relevant whether any remuneration or pecuniary gain was actually received, it is only
enough if such remuneration or gain was receivable.

In the present case, the office of the Chairperson of the Uttar Pradesh Film Development Council carried
with it a monthly honorarium of Rs. 5000, entertainment expenditure of Rs. 10,000, staff car with driver,
telephones at office and residence, free accommodation and medical treatment facilities for self and
family members, apart from other allowances, etc. The fact that these are pecuniary gains cannot be
denied, and also, the fact that the Petitioner is affluent or is not interested in the benefits or facilities
given by the State Government or has not, in fact, received such benefits till date, are not relevant to the
issue.

The Petitioner had referred to Biharilal Dobrav v. Roshanlal Dobrav,3 it was held that respondent was
holding an office of profit under the State Government and his nomination was rightly rejected by the
Returning Officer. In that case, the only question was whether the post the respondent was holding was
one under State Government or not. In Divya Prakash v. Kultar Chand Rana and Anr.,4 the Supreme
Court had held that the post of a Chairman of the Board of School Education of the State of Himachal
Pradesh was not an office of profit. The candidate was appointed specifically in an honorary capacity
without any remuneration. Further the post of Chairman did not carry with it a scale of pay. The
observations made with reference to Divya Prakash's case were clearly obiter. Further, an error seems to
have been made while noticing this case. In Divya Pradesh it was held that the post did not carry with it
any remuneration but in Biharilal Dobrey’s case it was said that the post carried remuneration.

It is clear that the decisions relied upon by the Petitioner, turned on their 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, that had been cited and referred by the Hon’ble Supreme Court. It is
well settled that where the office carries with it certain emoluments or the order of appointment states
that the person appointed is entitled to certain emoluments, 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 pecuniary
gain is
3
(1984) 1 SCR 877.
4
(1975) 2 SCR 749.
‘receivable’ in regard to the office and not whether pecuniary gain is, in fact, received or received
negligibly.

Further, the Petitioner had relied on the decisions in Umrao Singh v. Darbara Singh,5 where the question
that had arose for consideration was whether payment of a monthly consolidated allowance for
performing all official duties and journeys concerning the work and a mileage allowance for the
journeys performed for official work outside the district and daily allowances for the days of attendance
of meetings or travel or halt, would convert the office of Chairman of a Panchayat Samiti into an office
of profit. The Supreme Court was reasonable and justifiable in its decision that these were allowances
paid for the purpose of ensuring that the Chairman did not have to spend money out of his own pocket
for discharging his official duties, and therefore, receipt of such allowances did not make the office one
of profit. In this view, the question whether the Petitioner in the present case actually received any
pecuniary gain or not is of no consequence, and so the dismissal of the writ petition by the Supreme
Court was fair and equitable.

4. CONCLUSION
To ensure an effective and efficiently functioning democracy, it is desirable that there is proper
separation of power between the Executive, the Legislative and the Judiciary. For this, it is important
that only suitable legislators are elected to and remain in the Parliament and the State Legislatures.
Disqualifying the holders of offices of profit is also an effort in this direction for protecting the
independence of the legislators. A person may not be able to discharge his functions as a legislator and
critique to the government if the government is in a position to influence him. This understanding has
led to the development of the concept of ‘office of profit’. 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. The legislature has clarified the law on
some counts, for instance it has defined what constitutes ‘compensatory allowance’6, but as neither the
Constitution nor any other piece of legislation have defined the term ‘office of profit’, it continues to
remain open for wide interpretations, thereby posing an obstacle to the appropriate application of the
written laws.
5
(1969) 1 SCR 421.
6
S. 2(a), The All India Services (Compensatory Allowance) Rules, 1954.