PROJECT REPORT ON

OFFICE OF PROFIT AS A DISQUALIFICATION

UNDER ARTICLE 102

MOST RESPECTFULLY SUBMITTED TO-

PROF. HIMANGSHU RATHEE
SUBMITTED BY-
SHAGUN HOODA (19LLB070)
AARADHYA GUPTA (19LLB101)
MANSI YADAV (19LLLB108)
 CERTIFICATE

The project entitled Office of Profit as a Disqualification under Article 102 submitted to
School of Law, The NORTHCAP UNIVERSITY, GURUGRAM for Constitutional law as part of
Internal Assessment is based on our original work carried out under the guidance Prof.
Himangshu Rathee. The Research work has not been submitted elsewhere for award of any
degree.

The material borrowed from other sources and incorporated in the report has been duly
acknowledged.

We understand that we our self could be held responsible and accountable for plagiarism, if
any, detected later on.
 ACKNOWLEDGEMENT

It is a great pleasure for us to put on records our appreciation and gratitude towards Prof.
Himangshu Rathee for his immense support and encouragement all through the preparation
of this report and also for his valuable support and suggestions for the improvement and
editing of this project report. Last but not the least, we would like to thank all the friends
and others who directly or indirectly helped us in completing this project report, the library
facilities and computer facilities of the University have been indispensable.
 INDEX

Sr.No. TOPIC PAGE No.

1. Cover Page & Project Title
2. Certificate
3. Acknowledgement
4. Index Page
5. Abstract
6.
7. Introduction
8.
9.
10. Conclusion

OFFICE OF PROFIT IN INDIA

In India, the office of profit disqualifying the holder was imported from Britain and made its
appearance for the first time in the Act of 1909 which embodied the Morley- Minto Reforms
proposals1.

The basic idea was - and remains - that the legislators should not be vulnerable to temptations
an executive can offer. The framers of the Constitution thoughtfully incorporated Article 102
(1) and 191(1), prescribing the restriction at central and state levels. In the Indian constitution
Art.102 and Art 191 deal with disqualification of the members of Parliaments and state
legislature respectively.

Art.102 (1) (a) provides for the disqualification of the membership of either house of
parliament and read it as follows:
 102. Disqualification for membership. A Person shall be disqualified for being chosen as,
and for being, a member of either house of parliament –
(a) if he holds any office of profit under the Government of India or the Government of any
State, other than an office declared by Parliament by law not to disqualify its holder;

There is a similar provision in the constitution of in the Constitution for the disqualification
of members of the legislative assembly under Art.191 (1)

The expression office of profit has not been defined in the Constitution or in the
Representation of People Act 1951. Its ambit has to be inferred only from the pronouncement
of the courts and other competent authorities like the Election Commission and the president.
The object of the provision is to secure the independence of the members of Parliament and
do not contains persons who have received favours or benefits from the executive and who
consequently being under an obligation to executive might be amenable to influence.

1
Rd. Parnajape, N.V, INDIAN LEGAL AND CONSTITUTIONAL HISTORY ( CLA, Reprint Edition, 2002)
p.278
Rationale For The Disqualification For Holding An Office of Profit

The underlying concept behind these two articles is the principle of separation of power
between the functionaries of a state like the legislative, judiciary and the executive. The
principle of separation of powers enjoins that the three organs of the government- the
executive, the judiciary, the legislature should be separate from each other. This is to ensure
the isolation, immunity, or independence of one branch of government from the actions or
interference of the another and to ensure checks and balances.

The object of enacting Articles 102( 1) (a ) and the 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 freely and fearlessly his duties without subjected to any kind of
governmental pressure, thereby implying that if such an elected person is holding an office
which brings him remunerations and if the Government has a voice in his functions in that
office there is every likelihood of such persons succumbing to the wishes of Government.
These articles are intended to eliminate the possibility of such a conflict between duty and
state so that purity of legislature is unaffected. The true principle behind these provisions in
Article 102 (1) (a )is that there should not be any conflict between the duties and interest of
the elected member.

Article 102 (1) (a) of the constitution says that a person shall be disqualified from being
chosen as and for being a member of the either house of the parliament:
If he holds any office of profit under the Government (centre or state ) other than an office
declared by parliament by law not to disqualify its holder
An office of profit need not be necessarily confer pecuniary benefit, it is sufficient if it
bestows administrative and executive powers.
This provision is thus designed to protect the democratic fabric of the country being
corrupted by executive patronage and also secures the independence of the MPs and MLAs
from the influence of the Government so that they discharge their functions without fear or
favour. The presumption is that if a legislature receives benefit from the executive then he
may not be independently scrutinize the actions of the Government. It ensures that parliament
may contain persons who are amenable to the Government because receiving benefits from it.

OFFICE OF PROFIT POSITION IN OTHER COUNTRIES

In the United Kingdom ( U.K) the law evolved in England in the context of struggle between
the crown and the House of Commons Disqualification Act 1957 ( re-enacted in 1975 )
replaced disqualification for holding an office of profit under the crown by disqualification
attached to the holding of specified offices. There are essentially three broad reasons for the
disqualification.:
The physical impossibility for certain office holder of attendance at Westminster
The risk of patronage, and,
The conflict of constitutional duties
Under sec 1 of the House of the Commons Disqualification Act 1975 the disqualifying
offices fall into the following categories:

A great variety of judicial offices, listed in schedule 1 of the Act. The principle is that no
person may hold full-time judicial office and to be a practicing politician
Membership of the regular armed forces of the crownMembership of any police force
maintained by the police authority . A great variety of disqualifying offices arising from
chairmanship or membership of commissions, boards, administrative tribunals, public
authorities and undertakings, in few cases disqualification attached to only particular
constituencies. As these offices constitute wide name each has to specify by his name,
Membership of the legislature of any country outside the commonwealth except the Republic
of Ireland. It is likely that the members would be disqualified.

In the United States Article 352of the U.S. constitution mentions the phrase and define it thus:
A An Office to which fees a salary or other compensation is attached is ordinarily an office
of profit In the Australian constitution section, 443prescribes certain disqualification which
renders a person incapable of being chosen or of sitting as a member of either house.

The section is as follows:

2
Us Constitution of Bill of Right

3
Section 44, the constitution of Australia
Iv) Hold any office of profit under the crown or any pensions payable during the pleasure of
the crown out of any of the revenues of the commonwealth.

Office Of Profit Indian Perspective

Definition
The word aprofit connotes the idea of pecuniary gainConstitution of India doesn't define the
term Office of profit similar to the other grey area of the constitution, it is the judiciary which
interpreted it in the case of Ravanna subanna v. G.S.Kaggerappa 4 The word profit connotes
the idea of some pecuniary gain attached to the office. Supreme court, in this case, said that if
there is really a gain, its quantum or amount would not be material, but the amount of money
receivable by a person in connection with the office he holds may be material indicating
whether the office really carries any profit.

In case of Chandrasekhar Raju v. vyricherla Pradeep kumar5 the supreme court after
examining the catena of authorities, it was opined:
The power of the government to appoint a person in an office or to revoke his appointment at
its discretion. The mere control of the government over the authority having the power to
appoint , dismiss or control the working of the office employed by such authority does not
disqualify that officer from being a candidate for election as a member of legislation.
The payment from out of the Government revenues are important factors in determining
whether the person is holding an office of profit or not of the government Though payment
from a source other than the Government is not always a decisive factor in determining office
of profit.
The whole point that requires consideration is how the judiciary interprets this provision of
the office of profit . The plain meaning of this expression seems to be that an office must be
held under Government to which any pay salary emoluments or allowance is attached. Court
took this view to define this undefined area of the constitution

4
Ravanna subanna v. G.S. Kageerappa AIR 1954 653

5
Chandrasekhar Raju v vyrichela Pradeep Kumar, AIR 1992 SC 1959
Debate In The Constituent Assembly On The Inclusion Of Office Of Profit

Notwithstanding the fact that the term 'office of profit' has not been defined in the
Constitution, there is no confusion regarding its meaning. Even members of the Constituent
Assembly had no doubts about its importance or significance in a clean polity. In the above
section judicial interpretation of the word  office of profit has been discussed. In this
section the philosophy of the constitution-makers is going to be discussed.

The issue of disqualification has been discussed between the Naziruddin Ahmed and Rk
Choudhary on May 19, 19496 . On March 9, 1950, the issue was debated extensively in the
Interim Parliament, when the government introduced the Parliament (Prevention of
Disqualification) Bill to replace the Ordinance exempting offices such as that of
Parliamentary Secretary from disqualification.

The ground for disqualification has also been discussed in a letter by, Sardar Vallabhbhai
Patel wrote to Jawaharlal Nehru:

"You will recall that when the question came up about granting disqualification on account of
holding an office of profit under the government, the question arose about their holding office
as member of various committees, boards etc appointed as a member by government , we
might exempt those who might be appointed as member by the Government with the consent
of the speaker7.

This would severely restrict the number of the members who would be getting such
exemptions and speaker could be depended upon to safeguard against the abuse of this power
or converting this into the patronage by the executive . His caution was prophetic our national
leaders could see the probability of misuse of this provision by the government to allure the
MPs and MLAs . A parallel could be found in the British Constitutional history. Our leaders
did not want to repeat this system in Indian scenario. Here are some excerpt from the debate

6
CAD Volume 9 at page 316

7
CAD Volume 9 at page 328
of the constituent Assembly on the disqualification of members of parliament due to Office
of profit .

This is a remark made by Ambedkar on the 2nd of June, 1949. Responding to an amendment
made by K.T. Shah, that literacy requirements be incorporated into the Constitution,
Ambedkar replied that I think that is a matter which might as well be left to the Legislatures.
If the Legislatures at the time of prescribing qualifications feel that literacy qualification is a
necessary one, I no doubt think that they will do it.

This seems to suggest that the framers (or at least, Ambedkar) believed that the powers given
to Parliament under the omnibus clauses of (what became) Articles 84 and 102, including the
power to prescribe literacy qualifications. So in the Constituent Assembly the debate on the
adoption of Qualification and disqualification took place hand in hand. In the constituent
Assembly the reason for the adoption of the clause to make the Institution of representation
responsible I will argue, however, that the overall tenor of the Constituent Assembly Debates
makes it clear that educational requirements go against the concept of suffrage and
democracy that the framers meant to write into the Constitution.

As Dworkin has correctly pointed out, there might often be a clash between the framers
intentions about the words they were using, and what they intended the words would do –
in other words, between the concepts that they laid down in the Constitution and the concrete
conceptions that they thought were the correct interpretation of those concepts. I will attempt
to show that Ambedkar's conception of suffrage and political candidature that is reflected in
his comment of 2nd June 1949, is at odds with what comes out of the rest of the Debates.

Joint Parliamentary Committee ( Recommendations)8

The committee said ,in its 186 page report , that it was essential to evolve the principles and
generic criteria before defining the term office of profit. The committee suggested as :

8
Report of the joint committee on office of profit 14th Lok Sabha
Any office under the control of the Government of India or the government of a state,
whether or not the salary or remuneration for such office is paid out of the public revenue of
the government of India or of the government of state.
Any office under a body, which is wholly or partially owned by the Government of India or
government of any state and the salary and remuneration is paid by such body.
Any officeholder which is of capable of exercising the executive powers delegated by the
government, including disbursement of funds, allotment of lands, issuing of licenses and
permits or making of public appointment or granting of such other favours of substantial
nature or legislative ,judicial, or quasi-judicial functions.

Ground of Disqualification of Members Of Parliament and State Legislature

I. Constitutional Disqualifications
II. II. Statutory Disqualifications

I. Constitutional Disqualifications

(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.
(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;
Article 102(1) members of the Parliament 191 (1) Members of State legislature.
(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
CONSTITUTIONAL DISQUALIFICATIONS
1. Under article 102(1)Member of the Parliament
2. Under article 191(1)Member of state Legislature

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;
(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

OFFICE OF PROFIT
The office of profit means an office to which some benefit is derived. The actual making of
profit is not necessary. Profit means pecuniary gain or any material gain derived from the
office. Profit may be received in the form of salary, remuneration etc. not as honorarium.

RATIONALE OF OFFICE OF PROFIT

The object of Articles 102(1)(a) and 191(1)(a) is that there should not be any conflict
between the duties and interests of an elected member and to see that such an elected member
can carry on freely and fearlessly his duties without being subjected to any kind of
governmental pressure.

 Purpose is to secure independence of MPs and MLAs from influence of the

Government.
 Make them discharge their functions without fear or favour.
 The provision is thus designed to protect the democratic fabric of the country from
being corrupted by executive patronage.

DISQUALIFICATION OF MP AND MLA

MP Article 103(1)
When the question of disqualification of Member of Parliament arise the question of
disqualification is referred to the President who will take a decision on the advice of the
Election Commission and his decision shall be final

MLA Article 192(1)

When the question of disqualification of Member of S.L arise the question of disqualification
is referred to the Governor who will take a decision on the advice of the Election
Commission and his decision shall be final

CASE LAWS
 In Ramakrishna Hegde’s case 1993, the court held that Hegde was not disqualified as
he drew no salary but only allowances, etc. Though he held an office under the
Central Government, it was not one of ‘profit’ as he was not getting any salary but
only allowances. •
  However, in the case of Jaya Bachchan v. Union of India 2006 the court was of a
different opinion. The court in this case held that: “payment of honorarium, in
addition to daily allowances in the nature of compensatory allowances, rent free
accommodation and chauffer driven car at state expense, are clearly in the nature of
remuneration and a source of pecuniary gain and hence constitute profit.” If there is
pecuniary gain whether receiving it or not is immaterial, it is the office of profit.

 Shibu Soren vs. Dayanand Sahay & Ors. 19 July, 2001 It was held by the Supreme
Court that the office was one of profit. As Chairman of the Interim Council he was
receiving an honorarium of Rs. 1750/- per months; Daily allowance at the rate of Rs.
150/- per day for the period spent outside the headquarters besides traveling expenses
as prescribed; Daily allowance at the rate of Rs. 120/- per day for attending meetings
of the interim council; Furnished rent free accommodation (quarters) and A car with
Driver. Therefore court held that all of this could not be regarded as compensatory
allowance, it amounted to salary and so the petitioner was holding the office of profit.

STATUTORY DISQUALIFICATIONS
Representation Of people Act, 1951

1. Section 8 of RPA -person convicted of an offence punishable under following Sections

of Indian penal code.
2. Section 153A- offence of promotion of enmity between different groups on ground of
religion, race, place of birth, residence, language, etc., and doing acts prejudicial to
maintenance of harmony
3. Section 171E- offence of bribery.
4. Section 171f- offence of undue influence or personation at an election
5. Section 376A, Section 376B, Section 376C and Section 376D- offences relating to rape
6. Section 498A- offences of cruelty towards a woman by husband or relative of a husband
7. .Section 8-A of RPA 1951- disqualification for a corrupt practice at an election
8. Dismissal for corruption or for disloyalty to the centre or State.
9. Under section 9-A of RPA, He must not have any interest in government contracts,
execution of government work or services .
10. The holding of an office under a Government company contained in section 10 of RPA
6.
11.Under section 10-A – disqualification for failure to lodge account of election expenses
within the time and in the manner required by the and under the Representation of the People
Act, 1951.

GROUDS OF DISQUALIFICATION
According to para 2 of the 10th schedule a member of a house belonging to any political party
shall be disqualified from being a member of the house-
• If he has Voluntarily given up his membership of the political party
• If he votes or abstains from voting in the house contrary to any direction issued by any
political party on whose symbol he/she was elected.
• Exception: prior permission or condoned by party within 15 days of abstention or voting
• Nominated member joining party 6 months after becoming an MLA.
SPLITS AND MERGES
• 91st Amendment 2003
• Before this amendment a split in the party was recognized when 1/3rd of its members
defected
• Post-amendment, 2/3rd defecting members constitute a merger of parties
Exception to defection when;
• Member of such merging party becomes a member of the new political party.
• Member of such merging party chooses to function as a separate group.

NOMINATES MEMBERS
• If the nominated member after being nominated joins any political party before the expiry
of 6 months then it will not amount to defection. • Whereas the elected members does not
have any such privilege. If they will try to join other party would amount to defection. Hence
it is clear imbalance according to the outline of the anti defection provision

Para 7 of 10th schedule

Bar of jurisdiction of courts- it is said in para 7 that matters related to disqualification of
members of the house is referred to the chairman or the speaker of the house as the case may
be and their decision is final and binding ,no court has the jurisdiction to decide the
disqualification of the member of house.

CASE LAWS

 Kihota Hollohon v. Zachilhu and Others (1993) Issues: Is granting finality to the
decision of the Speaker/ Chairman is valid? Held: This provision is valid however
High Courts and the Supreme Court can exercise judicial review under the
Constitution. But the Judicial review should not cover any stage prior to the making
of a decision by the Speakers/ Chairmen.

 Ravi S Naik v. Union of India (1994) Issue: Whether only resignation constitutes
“voluntarily giving up” membership of a political party. Judgment: There is a wider
meaning of the words “voluntarily giving up membership”. The inference can be
drawn from the conduct of the members also.

 G. Vishwanathan v. Speaker, Tamil Nadu Legislative Assembly (1996) Issue: If a

member is expelled from old party and he joins another party after being expelled,
will it be considered as having voluntarily given up his membership? Judgment: Once
a member is expelled, he is treated as unattached member in the house but he
continues to be a member of the old party as per the Tenth Schedule. If he joins a new
party after being expelled, he can be said to have voluntarily given up membership of
his old party.
 CONFLICT OF OPINIONS

Both the Judiciary and the Joint Committee on Offices of Profit are almost unanimous on the
issue of what constitutes an office of profit. The Committee has in fact affirmed the
Judiciary’s stand on this issue. Other sources like the Second Administrative Reforms
Commission, although apparently differing from the Judiciary while regarding remuneration
and power of appointment and dismissal as unimportant factors, have nevertheless re-
emphasised that the Members should not be under the control of the Executive by becoming a
part of the Executive.

However, there is some difference of opinion when it comes to the Parliament’s power to
exempt offices from disqualification. The Judiciary has repeatedly maintained that the
Parliament is perfectly enabled to retrospectively exempt any office of profit from
disqualification. The practice of exempting offices of profit in the face of impending
disqualification has been upheld in various judicial rulings.

“The apprehension that it may not be a healthy practice and this power might be abused in a
particular case are again no grounds for limiting the powers of the State Legislature (or the
Parliament).”[31]According to the Judiciary, only limitations on the Parliament are that the
constitutional provisions should be adhered to and there should be not be any violation of
fundamental rights.

In CESR v. Union of India[32], the court had ruled that disqualification of an MP under

Article 102(1)(a) is not automatic and can only occur when the President, on the advice of the
Election Commission, declares that Member as disqualified. Therefore, till the time the
President declares so, the Parliament can bring an amendment for retrospectively exempting
the disqualification.

The Second Judicial Reforms Commission has however opined that by exempting numerous
offices from disqualification without any clear rationale, Articles 102 and 191 have been
violated in spirit. “There does not appear to be a clear rationale to such a list (of offices in the
exemption from disqualification), except perhaps the expediency to protect holders of certain
offices from time to time.

Similar laws have been enacted by State Legislatures under Article 191, exempting hundreds
of offices from disqualification for the State Legislature. Each time a legislator is appointed
by the executive to an office which might be classified an office of profit, a law is enacted
including that office in the list of exempted categories.”[33] The Joint Committee too,
although not explicitly declaring this as an unconstitutional or even an unethical practice, has
nevertheless stated that the Parliament should ensure that the exempted offices should not
come under the control of the Executive.
There is a need to reconcile such differing opinions so as to arrive at a clear and unambiguous
law. On analysing the relevant portion of Articles 102 and 191, we find the expression “shall
be disqualified…if he holds any office of profit” which implies that the disqualification is
mandatory and immediate.[34] This means that if an MP or MLA assumes an office which is
an office of profit, he will automatically become disqualified from the moment he assumes
the office, irrespective of whether the President declares so or not. This conclusion is at
complete odds with the opinion of the Judiciary.

CONCLUSION

The best course appears to be the parliament is competent to enact a law to remove a
disqualification with retrospective effect and this is settled in the case of Kantha kathuriya vs
Manakchand Surana9 . In the light of above mentioned discussion it becomes clear that the
true test to be applied to determine whether a person holds an office of profit or not depends
upon the extent of control the government exercises, whether the salary paid out of
government has power to appoint or dismiss, whether the salary paid out of government fund
or not, the salary which the person entitled to get must not be compensatory in nature to bear
out day to day expenses but it must confer some pecuniary gain to the person. One thing
which must be bear in mind the objective of the disqualification is to avoid the conflict
between the functionaries of state.

In the present scenario concept of separation concept of separation of power becomes too thin
because of the government function becomes so wide that it is not possible for the
government to work in its limited power which is given to the government. And in these
conditions, it must be seen that there must not be any conflict between the duties discharged
by the person in their legislative and executive capacity. Though our constitution has
provisions that the legislature could exempt any post to come under the preview of office of
profit by making laws with retrospective effect. By giving such a wide power to legislature it
has constricted the scope of art.102 (1) a and art. 191 ( 1) a.

9
Kantha kathuriya vs Manak chandra surana ( 1969) 3 SCC 268
It becomes the usual practice of the government which is in majority to exempts the post on
which the party members are appointed by amending laws. Conclusively as a member of the
constituent assembly. I affirm the provision of the office of provision under art. 102 (1) (a) to
strengthen the provision of democracy in India.