This Topic of Assignment is divided in to eight sub-topics, viz.-
2. Rationale for the disqualification for holding an Office of Profit
3. “Office of Profit” position in other Countries
4. “Office of profit” position in India
5. What is an ‘office’
b) Sonia Issue
c) Parliament (Prevention of Disqualification) Amendment Act, 2006
6. Joint parliamentary committee (recommendation)
7. Decision on Disqualification of MP’s and MLA’s
1) Introduction –
In India, the concept of "office of profit" disqualifying the holder was imported from Britain and it made its appearance for the first time in the Act of 1909, which embodied the Morley-Minto Reforms proposals. 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 restrictions at the Central and State levels. In the Indian Constitution Art.102 and Art.191 deals with disqualification of members of Parliaments and state legislature respectively.
Art.102 (1) (a) provides for the disqualification of the membership of either house of parliament and it reads as follows:-
“102. Disqualification for membership – (1) a person shall be disqualified for being chosen as, and for being, a member of either House of Parliament—
(a) if he holds any office of profit under the government of India or the government of any state, other than an office declared by parliament by law not to disqualify its holder;”
There is a similar provision in the constitution for the disqualification of membership of legislative assembly that is art.191 (1) (a).
A perusal of the above provision shows that three elements which are sine qua non for attracting the above provision are that the person concerned must hold an office -
(1) Under the Government of India or any State;
(2) The office should be an ‘office of profit’ and
(3) The office should be other than an office declared by parliament by law not to disqualify its holder Article 102(1)(a) corresponds to Article 191(1)(a) of the Constitution of India which lays down similar disqualifications for being chosen as or for being a member of the Legislative Council or Assembly of a State.
The expression “office of profit” has not been defined in the Constitution or in the Representation of the People Act, 1951. Its ambit has to be inferred only from pronouncements of courts and other competent authorities, like the Election Commission and the President. The object of the provision is to secure independence of members of parliament and do not contains persons who have received favors or benefits from the executive and who consequently being under an obligation to executive, might be amenable to its influence.
2) 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 legislative, judiciary and executive. The principle of separation of powers enjoins that the three organs of the government- the executive, the legislature and the judiciary 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 another and to ensure checks and balances. The object of enacting 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, 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 person succumbing to the wishes of the Government. These Articles are intended to eliminate the possibility of such a conflict between duty and interest so that the purity of legislature is unaffected.The true principle behind this provision in Article 102(1) (a) is that there should not be any conflict between the duties and the interest of an elected member.
Article 102(1) (a) of the Constitution says 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 (Centre or state) other than an office declared by Parliament by law not to disqualify its holder.
• An office of profit need not 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 from being corrupted by executive patronage and also secures the independence of MPs from the influence of the Government so that they discharge their functions without fear or favor. The presumption is that if a legislature receives benefits from the Executive than he may not be able to independently scrutinize the actions of the Government. The provision is thus designed to protect the democratic fabric of the country from being corrupted by executive patronage. It ensures that the parliament does not contain persons who may be obligated to the government and be amenable to it influence because they are receiving favors and benefits from it.
3) “Office of Profit” position in other Countries
In United Kingdom (U.K) the law evolved in England in the context of struggle between the Crown and the House of Commons which was not the case here in India. 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 disqualification:
1. The physical impossibility for certain office holders of attendance at Westminster;
2. The risk of patronage, and
3. The conflict of constitutional duties.
Under section 1 of the House of Commons Disqualification Act, 1975, the disqualifying offices fall into six categories:
1. 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 be a practicing politician;
2. Employment in the civil service of the Crown, whether in an established or temporary capacity, whole time or part time. The disqualification extends to members of the civil service of Northern Ireland and the diplomatic service. Civil servants who wish to stand for election to Parliament are required by civil service rules to resign before becoming candidates;
3. Membership of the regular armed forces of the Crown;
4. Membership of any police force maintained by a police authority, or the National Criminal Intelligence Service, or the National Crime Squad;
5. Membership of the legislature of any country or territory outside the Common-wealth, except the Republic of Ireland. It is likely that members of a legislature other than that of the Irish Republic would be debarred by their status as aliens from membership of the Commons;
6. A great variety of disqualifying offices arising from chairmanship or membership of commissions, boards, administrative tribunals, public authorities and undertakings; in a few cases, the disqualification attaches only to a particular constituencies. As these offices cover such a wide range, each office is specified by name. The schedule may be amended by Order in Council made following a resolution approved by the House of Commons. This power obviates the need for amendment by statute as and when new offices are created.
In the United States Article 35 of the U.S. Constitution mentions the phrase and defines it thus:
"An office to which fees, a salary or other compensation is attached is ordinarily an office of profit."
In the Australian Constitution section 44 prescribes certain disqualifications which render a person incapable of being chosen or of sitting as a member of either House. The section is as follows:
(iv) Holds any office of profit under the Crown, or any pension payable during the pleasure of the Crown out of any of the revenues of the Commonwealth: or
But sub-section (iv) does not apply to the office of any of the Queen’s Ministers of State for the Commonwealth, or of any of the Queen’s Ministers for a State, or to the receipt of pay, half-pay, or a pension by any person as an officer or member of the Queen’s navy or army, or to the receipt of pay as an officer or member of the naval or military forces of the Commonwealth by any person whose services are not wholly employed by the Commonwealth.
4)“Office of profit” position in India
The term ‘office of profit’ is not defined nowhere in the constitution and it left on the judiciary to interpret the term, the term ‘profit’ means some pecuniary gain attached to the office. Supreme Court in India in plethora of cases gives guideline to consider whether a given office is an office of profit or not.
These guidelines are:-
The remuneration which the persons gets while holding the office must not be compensatory in nature that it is not like that enabling him to carry out day to day expenses. This sum should not be considered as accruing any profit to the holder. This test is upheld by the Supreme Court in case of Ravabba Subanna vs. G. S. Kaggeerappa. The word 'profit' connotes the idea of pecuniary gain. If there is really a gain, its quantum or amount would not be material; but the amount of money receivable by a person in connection with the office he holds may be material indicating whether the office really carries any profit…".
In case of Chandrasekhar Raju v. Vyricherla Pradeep Kumar Dev and anotherthe Supreme Court after examining a catena of authorities, it was opined:
“(1) The power of the Government to appoint a person in office or to revoke his appointment at its discretion. The mere control of the Government over the authority having the power to appoint, dismiss, or control the working of the office employed by such authority does not disqualify that officer from being a candidate for election as a member of the Legislature.
(2) The payment from out of the Government revenues are important factors in determining whether a person is holding an office of profit or not of the Government. Though payment from a source other than the Government revenue is not always a decisive factor.
(3) The incorporation of a body corporate and entrusting the functions to it by the Government may suggest that the statute intended it to be a statutory corporation independent of the Government. But it is not conclusive on the question whether it is really so independent. Sometimes, the form may be that of a body corporate independent of the Government, but in substance, it may just be the alter ego of the Government itself.
(4) The true test of determination of the said question depends upon the degree of control the Government has over it, the extent of control exercised by very other bodies or committees, and 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 f view of the Government."
Supreme Court in case of Shivamurthy Swami vs. Agadi Sanganna Andanappa said the test which may be applied to determine whether an office is “office of profit” under the state government thus:-
“(1) whether the Government makes the appointment;
(2) whether the Government has the right to remove or dismiss the holder;
(3) whether the Government pays the remuneration;
(4) what are the functions of the holder and
(5) Does the Government exercise any control over the performance of those functions?”
The Supreme Court has justified this judgment and applied it in case of Surya Kant Roy v. Imamul Hai Khanin this case the main contention was whether the chairman of a Board under the Bihar and Orissa Mining Settlement Act, 1920 can be considered as holding an office of profit. The Court noticed the tests laid down in Shivamurthy Swami's caseand observed that the Government did not pay the remuneration nor did the holder of the office perform his functions for the Government and, therefore, he could not be said to hold an office under the State Government.
In case of M.Ramappa v. Sangappa and Ors.Supreme Court observed that "Patels and Shanbhogs who are the holders of hereditary village offices governed by the Mysore Village Offices Act, 1908 are officers who are appointed to their offices by the Government though it may be that the Government has no option in certain cases but to appoint an heir of the last holder; that they hold their office by reason of such appointment only, that they work under the control and supervision of the Government; that their remuneration is paid by the Government out of Government funds and assets; and that they are removable by the Government, and that there is no one else under whom their offices could be held."
In case of Maulana Abdul Shakur vs. Rikhab Chand and othersit was held that the a Manager of a School run by a Committee of Management formed under the provisions of the Dargah Khwaja Saheb Act, 1955 does not hold any ‘office of profit’ by applying the test that the concerned candidate was neither appointed by the Government of India nor was he removable by it. It was also found that his salary was not fixed or paid by the Government but that the same was paid out of the funds of the Dargah endowment. Further in case of Gurugovinda Basu v. Sankari Prasad Supreme Court said that the office under the government does not necessarily means service of government. If the government has power to appoint, power to dismiss, the power to control and give directions as to the manner in which the duties of the office are to be performed, and the power to determine the question of remuneration then also it can be said that the office is an ‘office of profit’ under the government.
The problem arises in the form, in which the gain is given suppose it may be in the form of honorarium, remunerations, salary etc. but in case of Shibu Soren vs. Dayanand Sahay & Orsit was held by the Supreme Court that it is the substance not the form which matters and even the quantum or amount of “pecuniary gain” is not relevant. In this case petitioner held his office 'at the pleasure' of the State Government. 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 the petitioner is holding an office of profit. It was further held that it is the substance and not he form which matters and even the quantum or amount of "pecuniary gain" is not relevant - what needs to be found out is whether the amount of money receivable by the concerned person in connection with the office he holds, gives to him some "pecuniary gain", other than an 'compensation' to defray his out of pocket expenses, which may have the possibility to bring that person under the influence of the executive, which is conferring that benefit on him.
The second report of the Joint Committee on office of profit of the 14th Lok Sabha, the committee had clearly held that "the facilities of an office room with telephone/fax/Internet, personal assistant and a staff car provided" to a MP are not covered under the "Compensatory allowance" and as such the holder of office would entail disqualification for being chosen as or for being a Member of Parliament.
Recently Supreme Court in case of Jaya Bachan v. Union of India (UOI) and Ors. declared that the post of Chairperson of Uttar Pradesh Film Development Council that is held by the petitioner as ‘office of profit’ because as the Chairperson of Uttar Pradesh Film Development Council the petitioner is entitled to
(i) Honorarium of Rs. 5,000/- per month;
(ii) Daily allowance @ Rs. 600 per day within the State and Rs.750/- outside the State. 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.
But in this case the main contention which raised by the petitioner was that the post of Chairperson of the Council, and the conferment of the rank of Cabinet Minister, were only "decorative"; that she did not receive any remuneration or monetary benefit from the State Government; that she did not seek residential accommodation, nor used telephone or medical facilities; that though she traveled several times in connection with her work as Chairperson, she never claimed any reimbursement; and that she had accepted the Chairpersonship of the Council honorary and did not use any of the facilities. Therefore the petitioner never had any intention to take benefit from these.
But this contention of petitioner is not maintainable because Supreme Court in case of Divya Prakash v. Kultar Chand Rana and Anr. said that the test to be applied in these conditions is “It is whether he can sue for or otherwise claim the scale of pay fixed by the resolution of the Board.” Court also held that “it is not matter whether the person is taking the salary or not when entitled to that salary.” And in the case of Jaya Bachan she was clearly entitled for that money.
It is also necessary to bear in mind that the Government is undertaking several projects and activities including commercial activities through the corporations and local bodies exercising some control over such corporations or bodies. In that view of the matter they may come within the meaning of the "State” envisaged in Article 12 but that may not be a decisive factor in deciding the issue. As it is clear from the above discussion that the person must holds an office under the government. Now the question arises what is an ‘office’ or which is considers being an ‘office’?
5)What is an ‘office’:-
a) Definitions -
The office has not been defined either in the Constitution or in the Representation of People Act.
Justice Rowlatt’s defines the word ‘office’ in case of Great Western Railway Company v. Baterand said the test to be applied is whether “it was a subsisting, permanent, substantive position, which had an existence independent from the person who filled it, which went on and was filled in succession by successive holders;”.
In case of Kanta Kathura v. Manak Chand Suranaa Constitution Bench of Supreme Court accepted the definition of Rowlatt justice and applying the test held that a Special Government. But again in case of Mahadeo v. Shantibhai and Ors. the question for consideration was whether appointment of a person on the panel of lawyers by Railway Administration can be held to be an office and is that office is one for profit? The Court, in that case referred to observation of Lord Wright of the House of Lords in the case of Mcmillon v. Guest, where Lord Wright has opined –
"The word 'office' is of indefinite content. Its various meanings cover four columns of the new English Dictionary, but I take as the most relevant for purposes of this case the following; a position or place to which certain duties are attached, especially one of a more or less public character."
In the aforesaid case this Court while considering the appointment of the person concerned and all terms and conditions came to the conclusion that it is difficult to hold that he held any office of profit under the Government. The Supreme Court in case of Statesman (Private) Ltd. v. H.R. Deb and Ors, Said that:
“An office means no more than a position to which certain duties are attached. According to Earl Jowitt's Dictionary a public office is one which entitles a man to act in the affairs of others without their appointment or permission.”
But finally Supreme Court in case of M.V. Rajashekaran and Ors. vs. Vatal Nagaraj and Ors. accepted the test propounded by the Lord Wright and accepted by Supreme Court in Mahadeo’scase and held that the petitioner is holding an office of profit who is appointed by the Karnataka government to a one man commission for studies of the problems of the Kannadigas in the Border areas of Kerala, Maharastra, Andhra Pradesh, Goa and Tamil Nadu’s.
Congress President Sonia Gandhi was a member of Lok Sabha. She was appointed as the Chairperson of National Advisory Council by the UPA government. She also held several posts under the government. Complaints were registered against her, and she chose the safe route of resignation. So that she could continue her impression of being the statue of sacrifice and morality.
The list of holders of office of profit is too long. Complaints against more than 40 MP’s are registered in the Election Commission. Lok Sabha Speaker Somnath Chatterjee himself comes within the purview of disqualification. Hundreds of member of different state legislature hold offices of profit, somehow or the other.
c) Parliament (Prevention of Disqualification) Amendment Act, 2006 -
India had the Parliament (Prevention of Disqualification) Act, 1950, 1951, and 1953 exempting certain posts from being recorded as offices of profit. All these Acts were replaced by the Parliament (Prevention of Disqualification) Act, 1959. By virtue of section 3 of the said Act, certain offices did not disqualify their holders from being members of either house. But due to above controversy by the Parliament (Prevention of Disqualification) Amendment Act, 2006 excludes 45 posts held by Members of Parliament from the operation of Article 102 with retrospective effect from 1959.
Recently in 2009, In the case of Consumer Education and Research Society V. Union of India, Supreme Court clearly held that when the amending act “retrospectively removed the disqualification with regard to certain enumerated offices, any member who was holding such office of profit, was freed from the disqualification retrospectively. As of the date of the passage of the Amendment Act, none of the Members who were holding such offices had been declared to be disqualified by the President.”
6) Joint parliamentary committee (recommendation)
The committee said, in its 186-page report, that it was essential to evolve the principles and generic criteria before defining the term ‘office of profit.’ The Committee suggested the definition of “office-of-profit” as: —
1) any office under the control of the Government of India, or the government of a state, whether or not the salary or remuneration for such office is paid out of the public revenue of the government of India or of the government of state,
2) any office under a body, which is wholly or partially owned by the government of India or the government of any state and the salary or remuneration is paid by such body
3) any office the holder of which is capable of exercising executive powers delegated by the government, including disbursement of funds, allotment of lands, issuing of licenses and permits or making of public appointments or granting of such other favors of substantial nature; or legislative, judicial or quasi-judicial functions. Since the judicial decisions gave varying interpretations depending upon the facts of each case,
The best course appears to be to refer the matter to the Parliamentary Joint Committee to examine the individual cases of the 40-odd MPs. The committee could exempt the offices it thinks would attract disqualification under Article 102(1a) of the Constitution of India. That Parliament is competent to enact a law to remove a disqualification with retrospective effect is settled as in Kanta Kathura v. Manak Chandra Surana. 
7) Decision on Disqualification of MP’s and MLA’s:
There are separate provisions of disqualification for the Member of Parliament and the member of state legislature. Article 84 prescribes qualifications of the members of parliament. Article 103 lays down that any dispute about the disqualification of Member of Parliament shall be referred to the President who will take a decision on the advice of the Election Commission and his decision shall be final. The Election Commission has a great role as the President decides the matter after obtaining its opinion and is accordance with that option and in case of disqualification on grounds of defection, the matter will decided by the Speaker or Chairman of Rajya Sabha as the case may be. In the case of member of state assembly article 191 would prevail and the decision of the Governor shall be final. In this case also the opinion of the state Election Commission shall be sought.
8) Conclusion -
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 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 gain to the person. One thing which must be bear in mind the objective of disqualification is to avoid the conflict between the functionaries of state.
In the present scenario concept of separation of power becomes too thin because the government function becomes so wide that it is not possible for the government to work in its limited power which is given to the government. 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 have provisions that the legislature could exempt any post to come under the preview of ‘office of profit’ by making laws with retrospective effect. By giving such a wide power to legislature it has constricted the scope of art.102 (1) (a) and art.191 (1) (a). It becomes the usual practice of the governments which is in majority to exempts the post on which there party members are appointed by amending the laws.
Author- ROHIT KUMAR SHUKLA, LL.M. III Semester student, BABASAHEB BHIMRAO AMBEDKAR UNIVERSITY ( A Central University, Estd. 1996) LUCKNOW
email - firstname.lastname@example.org
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